Raleigh Personal Injury Lawyer - Workplace Discrimination

Brent Adams Firm To Challenge RIF Law

Michael Byrne — Fri, 11 Jan 2008 14:57:04 GMT

For many years, career state employees separated from employment under a Reduction-In-Force, or "RIF," could bring an action in the Office of Administrative Hearings appealing such separations. These RIF appeal rights were a necessary protection for state employees. In the past, supervisors at some agencies allegedly used the RIF process, intended to rid the public payroll of redundant personnel, as a method of "getting rid of" employees who'd done nothing to deserve a disciplinary dismissal.

Unfortunately, in 2003 the North Carolina Court of Appeals held in Feinstein v. UNC, 161 N.C. App. 700, 590 S.E.2d 401 (2003), review denied, 358 N.C. 380, 598 S.E.2d 380 (2004) that state employees could not appeal RIF decisions on the basis that they were (a) made without "just cause" (the same basis as a disciplinary dismissal appeal), or (b) based on procedural defects (such as failing to follow the RIF process according to state personnel regulations).

The Feinstein ruling removed a long-standing appeal right essential to state employee protection. There is, of course, nothing wrong with RIFs in principle; agencies must have the ability to rid themselves of truly redundant employees. But what of a circumstance where, say, a supervisor simply disliked or failed to get along with an employee? A purported "RIF" is a golden opportunity for such a supervisor to dismiss that employee even though that employee has done nothing wrong. In short, the RIF process by its very nature is open to abuse. And after Feinstein, state employees were powerless to fight unfair RIF decisions except when based on discrimination or opposition to discrimination.

On behalf of a client RIFd from the North Carolina Department of Public Instruction, the Brent Adams firm will, in the coming months, make an all-out effort to get the Feinstein decision overruled. Simply put, the two governing statutes in the North Carolina State Personnel Act (General Statutes Chapter 126), which sets out the appeals rights of career state employees, clearly provide for appeals of RIF decisions to the Office of Administrative Hearings (OAH) and beyond.

G.S. 126-34.1 provides for an appeal to OAH for an "alleged violation" of G.S. 126-35, the "just cause" statute:

(a) A State employee or former State employee may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes only as to the following personnel actions or issues:

(1) Dismissal, demotion, or suspension without pay based upon an alleged violation of G.S. 126-35, if the employee is a career State employee.

G.S. 126-35, in turn, provides:

(a) No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.

While on its face a RIF is not "disciplinary reason" for dischage from employment, G.S. 126-35 also adds the following critical element:

(c) For the purposes of contested case hearings under Chapter 150B, an involuntary separation (such as a separation due to a reduction in force) shall be treated in the same fashion as if it were a disciplinary action.

A "contested case hearing," of course, is a hearing in OAH. Thus, it is clearly an "alleged violation" of G.S. 126-35 to allege an "involuntary separation" due to a RIF, as under the very terms of the statute in question a RIF and a disciplinary dismissal are the same thing - both triggering employee appeal rights under G.S. 126-34.1.

What all this adds up to, the Brent Adams firm will argue, is that the Court of Appeals was wrong when it decided Feinstein five years ago. Accordingly, the firm is bringing this RIF case through the lower courts in an effort to convince the Court of Appeals, and possibly the Supreme Court, that the case should be overruled.

If this effort succeeds, state employees will regain a critical protection against arbitrary and capricious dismissals couched as "RIF" decisions. The case will be argued in Wake County Superior Court in early March. We'll keep you posted.

Originally posted at InjuryBoard by Michael Byrne

Court Of Appeals Rules For Brent Adams Client

Michael Byrne — Tue, 08 Jan 2008 17:39:09 GMT

When longtime State employee Peggy Anderson applied for a promotion at Whitaker School, she thought she'd get promotional priority - a hiring preference over non-state employees - as the law requires. Instead, a non-state employee got the job. Peggy Anderson decided to fight back.

Ms. Anderson hired Brent Adams attorney Michael Byrne, who argued in court that the State failed to give Ms. Anderson the promotional priority she was entitled to. When a state employee applies for a promotion, in most cases, the state can only give the job to a non-state applicant when the non-state person's "job-related qualifications" are "substantially better suited" for the position than the state applicant. In Ms. Anderson's case, she'd been working at Whitaker School (a facility for adolescents with mental health issues as well as secondarily disabling conditions) for years and had consistently outstanding evaluations. Instead, the job went to someone who'd never worked at Whitaker School.

An administrative law judge agreed that the state had failed to follow the law, and awarded Ms. Anderson back pay, front pay until she received the position, attorney's fees, and promotion into the next vacant position. However, the State Personnel Commission applied an (erroneous) "extra" requirement that Ms. Anderson demonstate she was better qualified than other state employees who did NOT contest the hiring decision. A Superior Court judge in Wake County agreed, finding that the State Personnel Commission's decision was "supported by substantial evidence and was not arbitrary and capricious."

Though anyone might be discouraged at that point, Peggy Anderson didn't give up. She took her case to the North Carolina Court of Appeals, which recently agreed that the Superior Court committed legal error by using the wrong "standard of review" when it ruled in Ms. Anderson's case. The case is Anderson v. DHHS, Whitaker School, No. COA07-463 (December 18, 2007).

The Superior Court used the "whole record" test in reviewing Ms. Anderson's case when it should have looked at the case with fresh eyes, finding its own facts and making its own legal conclusions. This is known as the "de novo" standard of review, and it is used when the State Personnel Commission (the agency body that makes the final decision in state personnel cases) fails to adopt the administrative law judge's decision. Since the Superior Court failed to use the right standard of review when it looked at the case, the Court of Appeals directed that the case be sent back to Superior Court and examined in the legally correct way.

The importance of the case lies in its affirmation of an important change in the law that happened several years ago involving state personnel cases. In earlier days, state agencies - including the State Personnel Commission - were relatively free to disregard the administrative law judge's decision. In the early 2000s, the law was amended and, among other changes, required Superior Court judges to avoid giving any deference to prior agency decisions when the agency (in this case, again, the State Personnel Commission) failed to follow the administrative law judge decision. This made sense, because it is the administrative law judge who actually presides at the trial of the case, observes the witnesses, and hears all the evidence.

So, because of this change in the law - which the Court of Appeals made clear, in this decision among others, that it is taking seriously - state employees who prevail before administrative law judges have a much less significant prospect of having their "victories" taken away by subsequent agency decisions. For employees like Peggy Anderson, who have the courage to take on State government in court, that's very good news.

Originally posted at InjuryBoard by Michael Byrne

A "Forgotten Appeal Right" For State Employees?

Michael Byrne — Fri, 05 Oct 2007 17:13:56 GMT

As most state employees know, a written warning is the lowest level of formal discipline imposed under North Carolina personnel policy. Many agencies also have less formal forms of written discipline, such as "supervisor's complaints" (DMV), "TAPS" entries (DOC), and "documented counseling" (DHHS and others). Written warnings carry only internal appeal rights, or none at all. The "lesser" written reprimands I've mentioned carry none at all in most cases. If an employee has one of these placed in his or her personnel file, and it contains misleading and inaccurate information, is there any meaningful appeal right available? Fortunately, the answer is, "yes."

N.C.G.S 126-25, part of the State Personnel Act, allows any state employee (including ones who haven't reached career status) to grieve management's refusal to remove from his or her personnel file any material that is "misleading" and/or "inaccurate." Most important is that the appeal right under N.C.G.S. 126-25 allows employees to pursue such cases beyond the "sandbox" of the internal grievance process and appeal to the Office of Administrative Hearings for a contested case hearing before an Administrative Law Judge - and further to the State Personnel Commission and the Superior Court, if need be.

This appeal to OAH is critical. While some employees enjoy success with internal grievances, most who visit my office feel that the deck is somewhat stacked against the employee in the internal grievance process. Whether that's true or not (I believe it generally is) the employee is certain to get a fair hearing of his or her case, if properly presented, at the OAH level before an independent administrative law judge.

How does the appeal right work?

Let's assume a hypothetical DMV examiner receives a written warning that says the following:

On September 17, 2007, you waited on Customer Smith in the Asheville DMV License Office. After waiting in line for four hours, Customer Smith was turned away by you for not having proper documentation. In fact, you should have determined Customer Smith's documentation was appropriate by waiving the requirement that Customer Smith show he is not a convicted murderer prior to receiving a license to drive a school bus.*

DMV policies offer you no appeal rights in this matter. This written warning will remain in your personnel file for 18 months or until the beginning of the 23rd century, whichever is shorter.

Let's also assume that, in fact, DMV policies made it clear that our hypothetical examiner did not have the authority to waive improper documentation.

Thus, we have a written warning that is inaccurate - as the employee did not in fact have authority to grant the murderous Customer Smith a license to drive children back and forth from school. However an examiner also generally has no control over how long the wait line is in his or her particular office. Thus, to the extent the written warning implies that the four-hour wait is the fault of our examiner, the written warning is also misleading. What to do?

The first step is to immediately make a written request to your supervisor that the offending material be removed from your file as misleading and inaccurate, explaining why it is. Assuming your supervisor refuses this request, you should then check your agency grievance policy and follow all the appropriate steps. While consulting with a lawyer may by useful (I assist many employees with internal grievances), grievants in the internal process are not permitted to have formal legal counsel.

Be very careful, as with any internal grievance, to follow the timelines from step to step. Quite a few agencies I've seen have timelines of as little as five calendar days for filing a Step 2 or Step 3 grievance (I question whether these are really enforceable in many cases, but that's an issue for another day). Read the policy, and follow it to the letter.

Assuming you reach the end of the internal grievance process without relief, you must then file a Petition for a Contested Case with the Office of Administrative Hearings within 30 days of receiving the last internal denial of your grievance. Then, you can proceed in OAH on your own or hire a lawyer. If you take matters to that level a lawyer is a virtual necessity. Your chances of prevailing against an agency represented by an attorney from the Department of Justice are between slim and none; the procedural issues alone are quite complex.

But what, you ask, about the statement that you have no appeal rights for the written warning? While it is true that you cannot appeal the issuance of the written warning, you can appeal to have it removed from your file on the grounds it is misleading and inaccurate. Once it's removed from your file, it's basically useless. Of course, the agency may choose to replace it with an accurate written warning - but in our hypothetical here, that would be a practical impossibility.

Now, most grievance policies require that a grievance be filed within 15 days of the grievable issue arising. What if 15 days have elapsed since the document was issued, and the employee (a) failed to file a grievance, and/or (b) didn't know about the document at all? In that case, I would simply make a written request for the removal of the document from the employee's personnel file. The supervisor's refusal to grant the request would in my view "re-start" the time clock to file a grievance. This is especially the case given that the general rule prohibits a time limit from being asserted against employees when the appeal right was not communicated to them in the document concerned - as was the case in our hypothetical.

So, either through the internal process or OAH, N.C.G.S. 126-25 provides a powerful tool for employees who have inaccurate or misleading information placed in their files - and this would include so-called "private" or "satellite" files kept by supervisors or managers, too. This is the case even when, as with the warning here, you cannot appeal the issuance of the warning itself. But if you can have the document removed from your file and destroyed as misleading and inaccurate, an appeal under N.C.G.S. 126-25 can provide a result that's just as favorable.

* Not based on any actual situation.

Originally posted at InjuryBoard by Michael Byrne

The 48-Hour Whistleblower Lawsuit: Gardner v. DMV

Michael Byrne — Thu, 02 Aug 2007 07:30:40 GMT

Ten-year North Carolina Department of Motor Vehicles employee Joey Gardner didn't want to be the plaintiff in a whistleblower lawsuit. He just wanted to do his job.

A 25-year veteran of North Carolina law enforcement, Gardner is an Assistant Director of DMV's License and Theft Division. License and Theft is the oldest law enforcement unit in North Carolina, being formed in the Twenties to combat a rash of theft involving the now-antique Model T Ford.

Gardner, though found himself in trouble recently over a different kind of "antique": a replica 1937 Ford truck owned by a personal friend of the then-Commissioner of DMV, George Tatum. Three years ago, the truck's owner sought a state title certification that the truck was an actual antique 1937 Ford. It wasn't. And that eventually led to a lawsuit and media outcry that cost Tatum his job - a lawsuit filed and settled in what may be a near-record time of 48 hours. How did all of this happen?

One of License and Theft's official duties, and thus Joey Gardner's, is invesitgating and stopping title fraud - certifying a vehicle as something it isn't. In the case of an antique versus a replica, a title certification as an antique increases the potential value of the car and avoids a state requirement that owners of replica vehicles used on our state roads purchase an indemnity bond for the public protection. And Robert Kinlaw of Fayetteville, owner of the replica 1937 Ford, apparently sought Tatum's aid in getting his replica truck titled as the real thing.

In 2004, a DMV inspector in Nash County refused to issue a 1937 title for the replica because the car wasn't an actual 1937 truck. Shortly afterwards, Deloris Perry, Tatum's then-administrative assistant, issued an electronic mail message: "This [Kinlaw] is a friend of Commissioner Tatum's. Will you please call Mr. Kinlaw and help him with this problem?"

The "problem," of course, was that a replica car was inspected and determined to be ... a replica car. But Tatum, in a 2004 conversation with Gardner, told Gardner that, "They would just get it [the title issue] straightened out when they got it [the truck] home." Gardner took this to mean that the "straightening out" would take placen when the truck was back in Fayetteville. Kinlaw is a supermarket owner in Fayetteville, and Tatum is a Fayetteville native and former Register of Deeds in Cumberland County. Perry, Tatum's assistant, also discussed the issue with Gardner, implying that this kind of favor was done "all the time."

Sure enough, a second DMV inspector in Cumberland County looked at the truck and issued a title certification as - a 1937 Ford truck. This is despite Kinlaw's truck having both a third brake light (set into the truck body) and a digital dashboard - equipment that was, shall we say, uncommon in 1937. Gardner was disturbed at the time that the authority of his agency was apparently being used to fraudulently circumvent the law - not to mention the obvious cronyism question raised by this affair.

Yet Gardner kept his counsel until June 2007, when the Raleigh News & Observer reporter Dan Kane started asking questions about just how a replica truck owned by Tatum's friend ended up being certified as an antique. Tatum, on the record, denied using his influence in the matter and directed an inspection of the replica by License and Theft. That task fell to - Joey Gardner, who inspected the truck and reported, as the original DMV inspector did in 2004, that the truck was a replica.

But all of this reminded Gardner of his disquieting 2004 conversations with Tatum and Perry. He mentioned these talks to two of his superiors, License and Theft Director John Robinson and Deputy Director Jimmy Edwards. Robinson, who previously told Gardner to be "be real careful" and "use kid gloves" over the matter - an obvious reference to Tatum's involvement - ordered Gardner to turn in a memo detailing his conversations with Tatum and Perry on the replica truck issue. This Gardner promptly did.

Less than 48 hours later, Edwards took Gardner's service weapon and ordered him to attend an interrogation with two DMV internal affairs officers. The internal affairs operatives questioned Gardner about his memorandum on Tatum, and then escorted Gardner to his office, where they played (and recorded ) a message from the News & Observer reporter, Kane, seeking an interview with Gardner on the 1937 Ford title issue.

Two days later, on June 29, Edwards ordered Gardner to yet another meeting, this one with Robinson and Edwards himself. At this meeting, Edwards and Robinson again took Gardner's service weapon as well as his badge and the keys to his state car. They told Gardner he was suspended from duty until July 9 and ordered him to report for a "Fitness For Duty" pyschological evaluation on that date.

Fitness for Duty evaluations may only occur, per DMV policy, when there is a finding by the Employee Assistance Program and the employee is notifed of the specific reasons why he is being evaluated. Gardner, as was his right under DMV policy, asked for these reasons - and Edwards and Robinson refused to answer. Also, there was no evidence of any findings by DMV's EAP. Moreover, Gardner had spent 25 years in law enforcement, 14 of which were at DMV, without anyone questioning his pyschological fitness. The evaluation order, in short, was a retaliatory sham.

A higher-level official in DOT rescinded Gardner's suspension the same day. But Gardner still lacked his service weapon and was still ordered to the sham Fitness for Duty evaluation. Gardner went to the evaluation as ordered - and the doctor refused to conduct it as Gardner had not been provided with the reasons for the evaluation.

Edwards and Robinson's reaction? Order Gardner to a second sham Fitness for Duty evaluation with a different doctor, again refusing to inform Gardner of the alleged reasons for it despite his specific request for those reasons. They likewise refused tor return Gardner's service weapon.

On that same day, Tatum struck out at Gardner in the press, calling his truthful recollection of his conversations with Tatum over the replica Ford truck "a lie." Evidently, retaliating against Gardner in the workplace wasn't enough -Tatum also saw fit to malign Gardner's truthfulness in the pages of a newspaper of record.

It was at this point that Gardner, frustrated with the retaliation for doing his job, decided to seek relief in a court of law. Gardner filed a lawsuit in the Superior Court of Wake County against DMV as well as Robinson, Edwards, and Tatum, alleging that the three violated North Carolina's Whistleblower Act (N.C.G.S. 126, Article 14). Gardner, the lawsuit alleged, had engaged in protected activity under the Whistleblower Act by reporting the following matters covered as such under N.C.G.S. 126-84 (taken from the pleadings)::

(1) Violation of state or federal law, rule, or regulations, in that Plaintiff is informed and believed, and therefore alleges and reported, that a title was unlawfully and fraudulently certified for the Ford replica as an alleged 1937 Ford truck, in violation of North Carolina law, rule, and/or regulation;
(2) Violation of state or federal law, rule, or regulations, in that Plaintiff is informed and believed, and therefore alleges and reported, information suggesting that Tatum and/or others within DMV intervened on Kinlaw's behalf, Kinlaw being known as a "friend of the Commissioner," to obtain certification of the Ford replica as a 1937 Ford truck despite prior information making it clear, or that should have made clear, that the Ford replica was not in fact a Ford truck but a replica;
(3) Fraud, in that certifying and issuing a title for the Ford replica certifying it as an actual 1937 Ford truck constituted a fraudulent and illegal statement of title and had the capacity to deceive future potential purchasers of the Ford replica, including citizens of North Carolina into believing that the replica was actually a 1937 Ford truck rather than replica, it again being a specific job duty of License and Theft, including Plaintiff, to prevent fraudulent and illegal titles from being issued in the name of the State of North Carolina and for the protection of its citizens;
(4) Misappropriation of state resources, through what Plaintiff is informed and believes, and therefore alleges, was direct intervention on the part of Tatum, personally or through subordinates, to achieve a false title certification for a personal friend via multiple inspections of the Ford replica conducted at state expense, as well as denying the State of North Carolina the resource of an indemnity bond with respect to the Ford replica and using state personnel and state resources to conduct "favors" for specific citizens;
(5) Substantial and specific danger to the public health and safety, in that certification of a fraudulent, false, and/or illegal title presents a substantial and specific danger to the public health and safety due to the fact that a replica, kit-car type vehicle is not properly covered by an indemnity bond for the protection of the public; and,
(6) Gross mismanagement and/or gross abuse of authority, the factual basis of which is set forth in (2) and (4) above.

As a result, Gardner alleged, the retaliation refernced above took place, and (again from the pleadings):

59. These actions by defendants, individually or collectively, constituted retaliation against Plaintiff and constituted acts to discharge, threaten, or otherwise discriminate against Plaintiff regarding Plaintiff's compensation, terms, conditions, and/or privileges of employment because Plaintiff reported, verbally or in writing, the above activities set forth in and protected by N.C.G.S. 126-84, and Plaintiff is and continues to be damaged as a proximate result of such activity, which constituted willful violations of the Whistleblower Act.

Gardner claims damages and injunctive relief, and additionally, using the injunctive relief provisions of the Whistleblower Act, moved for a temporary restraining order seeking (a) return of his service weapon, and (b) a halt to the second sham "Fitness For Duty" evaluation.

To say this lawsuit was a media bombshell was an understatement. The News & Observer's story on the lawsuit filing was picked up by the Associated Press and reported throughout North Carolina and in some venues in South Carolina and Virginia. Area television station WRAL ran the filing as a top story on its 6 PM news broadcast.

Later that same day, DMV attorneys agreed to a consent order returning Gardner's service weapon and cancelling the "Fitness for Duty" evaluation. Thus, thanks to the Whistleblower Act, scheduling courtesy on the part of the Wake County Trial Court Administrator and a superior court judge, and the apparent realization on DOT's part that the defendants has placed the agency in an impossible legal position.

But this was only the beginning.

Within 24 hours of the lawsuit filing, Tatum abruptly resigned his position as DMV Commissioner. The politician whom, Gardner and counsel believe, orchestrated gross retaliation against Gardner for just doing his job, and whose suspected goal was engineering Gardner's dismissal, packed up his car in the DMV parking lot as a bemused Gardner watched from his office window. Governor Mike Easley, who had appointed Tatum, issued a short statement calling Tatum's resignation "appropriate."

Tatum's resignation created yet another local media sensation. WRAL reporter Cullen Browder, in the station's top 6 PM news story that day, said that "it all began to unravel" for Tatum when Gardner filed his lawsuit.

The next day, the lawsuit was settled - a probably record time from filing to settlement against a state agency, though there's no way of knowing that for sure. Gardner kept his job and received a raise. The state also paid his attorney's fees in full and removed from his personnel file and destroyed some inappropriate disciplinary material that had been placed in that file by one of the defendants. Gardner's service weapon and all other equipment, including his computer (which had also been seized earlier) was returned, and the pyschological evaluation remained cancelled.

Joey Gardner stood up for honest dealing against one of the most powerful men in state government. And in the end, it was the powerful man - Tatum - who packed up and went home, taking a climate of fear at the DMV along with him. And fortunately, there were responsible people at DMV - most people at DMV are just honest public servants doing their jobs, just like Gardner - who realized that the defendants' ugly acts of retaliation needed to be promptly rectified. And they were.

We learn from this that the Whistleblower Act remains a powerful tool for lawyers fighting abusive behavior toward North Carolina state employee clients. The temporary restraining order request clearly appeared to catch DMV off guard - the prospect of going into court in 24 hours and "explaining" obvious retaliation would have been a difficult task. Attorneys evaluating Whistleblower Act cases should always consider all the remedies set forth in N.C.G.S. 126-87 in evaluating the case's potential remedies, which include damages (including enhanced damages for willful violations), reinstatement, injunction, costs, and attorney's fees. That's a lot of ammunition.

But most importantly, from the strong positive reaction to Joey Gardner's case and its outcome, not only in the media but in many quarters of state government itself, we again learn that most state employees are good people, and that the Whistleblower Act protects their ability to do their jobs without fear of retaliation. Unfortunately, given I've done two other Whistleblower Act cases in the past year, state government isn't as retaliation-free as we would like. But we're getting there - as Joey Gardner shows.

Originally posted at InjuryBoard by Michael Byrne