Team-Building or Torture? Court Will Decide.

By Karl Vick
Washington Post Staff Writer
Sunday, April 13, 2008

PROVO, Utah -- No one really disputes that Chad Hudgens was waterboarded outside a Provo office park last May 29, right before lunch, by his boss.

There is also general agreement that Hudgens volunteered for the "team-building exercise," that he lay on his back with his head downhill, and that co-workers knelt on either side of him, pinning the young sales rep down while their supervisor poured water from a gallon jug over his nose and mouth.

And it's widely acknowledged that the supervisor, Joshua Christopherson, then told the assembled sales team, whose numbers had been lagging: "You saw how hard Chad fought for air right there. I want you to go back inside and fight that hard to make sales."

What's at issue in the lawsuit Hudgens filed against his former employers -- just as in the ongoing global debate over the CIA's waterboarding of terrorism suspects -- is the question of intent.

Prosper Inc. maintains that what the supervisor did, while unauthorized, overzealous and misguided, falls far short of torture, and in fact was not nearly as bad as Hudgens makes out in his quest for damages.

"We're not the mean waterboarding company that people think we are," said George Brunt, general counsel for the firm, which sells a combination of online and personalized instruction -- packaged as "coaching" and running $3,000 to $15,000 -- to customers who are solicited by telephone.

The morning Hudgens said he thought he was going to drown, his team was calling on behalf of "Trump University," pitching real estate instruction to people who had attended a Trump seminar. Prosper is doing well, with 500 employees and clients in 70 countries, senior executives said in an interview.

"I don't know if this would even be an issue if it weren't for Guantanamo Bay," Brunt said.

"How many times did the CIA even do waterboarding? Three times?" added Dave Ellis, the company president.

"But look at the damage it did to America's reputation," Brunt pointed out. "And it's going to hurt our image."

Indeed, Hudgens's lawsuit, filed Jan. 17 in Provo, suggests the testosterone-poisoned setting of the David Mamet play "Glengarry Glen Ross." Hudgens alleged that if the 10-person sales team went a day without a sale, members had to work the next day standing up; Christopherson took away their chairs. The team leader also threatened to draw a mustache in permanent marker on the face of sales people for "negativity," Hudgens said. Christopherson kept on his desk a piece of wood, "the 2-by-4 of motivation," he said.

Brunt and Ellis dispute all this. "When you meet Josh," Brunt said, "he's a nice, sensitive guy."

Hudgens agreed that Christopherson was "an upbeat guy; everybody there likes him." But he added: "It is a big pressure cooker in there, I'll tell you." He said low performers were threatened with "the Cure Team" -- two weeks to improve or you're fired.

Late last May, the all-male sales team was having "a rough week." Christopherson called the men into the break room and announced, "We're going to do an exercise." He asked for a volunteer.

Hudgens raised his hand.

"Keep in mind," he said, "the last time we did a team-building exercise outside, we did an egg toss."

Prosper maintains that Christopherson explained what would happen next, and Hudgens knew what he was in for, even handing his cellphone and keys to co-workers before lying down. Hudgens insists he had no clue.

"So they held me down," Hudgens said, "and the next thing I know, Josh has a gallon jug of water and he's pouring it on my face. I can't scream because the water's going down my throat.

"And halfway through he stopped for a second. I tried to mumble the words, 'Stop, knock it off.' I tried to get that out and he continued to pour."

"I'm not getting any air," Hudgens said. "Toward the end, I'm starting to black out. I'm getting very dizzy, light-headed. The sensation that's going through my head is, 'I'm going to drown.' "

That is the oft-described whole point of waterboarding, though Hudgens said he was not then familiar with the word. He said that what he told a friend in the human relations office two hours later, after "coughing, choking, mucus" was: "My team just tried to kill me."

Only later, after describing the experience to a former employer, was he told: "You've just been waterboarded." "I said, 'What's waterboarding?' And the only difference was, instead of lying on a board, I was lying on a grassy hill."

Christopherson did not know the term, either, Brunt said: "He thought it had something to do with water skiing."

He said Christopherson told the executives that he was inspired by reading about the Greek philosopher Socrates, who is said to have once held a student's head under water, then told him he must want to learn as badly as he wanted air.

"We don't know what he was thinking, but we know that he wasn't thinking waterboarding, or torture," Brunt said. Christopherson, suspended for two weeks while the company investigated the incident, is back on the job. The company declined to allow interviews with him or other employees.

"The sales team leaders are very focused here," Brunt said. "There was an incident, so it's not fabricated. There was a training exercise. He did lie down on a hill. The entire exercise lasted less than 20 seconds. A little bit of water was poured and then Josh would stop and say, 'Are you okay?'

"I can't say he wasn't held down, but anybody holding him would have let him up if he'd held his hand up."

Such details are crucial, not least because under Utah law the case could be relegated to a workers' compensation claim absent an employer's "conscious and deliberate intent" to inflict injury.

"And I'm absolutely sure that won't be found," Brunt said. "And it'll be a workers' comp case, and he'll get what he needs. But we're not going to pay to keep it out of the media, though it's tempting."

That's because of the taint of the word, of course. "There's a debate in the Supreme Court whether it's torture or not," Ellis said. "I don't know, looking at the military filings, it looks pretty torturous."

Interestingly, Hudgens's Salt Lake City attorney differs on that. "I'm not an absolutist on that," Sean Egan said. But "to take these kinds of techniques and apply them to anything but a national security environment is entirely inappropriate."

And the plaintiff?

"I don't know if the government should do it or not," Hudgens said. "But I can tell you firsthand, because it happened to me, it definitely works.

"They didn't tell me it was going to happen, but if they did, holy cow, I would've told them whatever they wanted me to tell them."

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