The 48-Hour Whistleblower Lawsuit: Gardner v. DMV
Posted by
Michael ByrneAugust 02, 2007 7:30 AMTen-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.