Appeals court rules fired Chapel Hill workers should get hearing

tgrubb@newsobserver.comMay 7, 2013 

Fire sanitation worker Clyde Clarke, with Kerry Bigelow behind him, speaks at the MLK rally Jan. 17, 2011, at Peace and Justice Plaza in downtown Chapel Hill.

MARK SCHULTZ — mschultz@newsobserver.com

— An appeals court ruled Tuesday that an Orange County judge should give two fired Chapel Hill sanitation workers their day in court.

The N.C. Court of Appeals did not rule on the merits of the men’s lawsuit against the town of Chapel Hill. However, the court did say that Kerry Bigelow and Clyde Clark have a valid claim that they were wrongfully discharged in 2010. Orange County Superior Court Judge R. Allen Baddour Jr. should not have dismissed the lawsuit without resolving all the facts in the case, the court said.

“This is a great victory for all public workers in North Carolina,” said Al McSurely, the attorney representing Bigelow and Clark.

Although Town Manager Roger Stancil was named in the lawsuit, the appeals court said he should not be a defendant on a personal or official level. State law does not recognize constitutional claims against public officials acting in an official capacity, the court said. And since the claims against Stancil are identical to those against the town, suing him is redundant, the court said.

McSurely said they included Stancil in the lawsuit because they believe his decision to hire Capital Associated Industries, a Raleigh nonprofit consulting firm, was beyond the scope of his duties.

The town has 30 days to appeal the decision to the N.C. Supreme Court, McSurely said. If the case is not appealed, it will return to Orange County Superior Court, where the men could seek a jury trial.

The lawsuit asks for their jobs back and compensation for the damages they suffered, including emotional distress, McSurely said. It also demands that the town pay attorneys’ fees and back pay from the date they were terminated.

Town officials said they were fired in 2010 from their jobs with the town’s sanitation department because of residents’ complaints, job performance and insubordination. The town hired Capital Associated Industries to investigate the claims. The company recommended firing the men, and a citizens advisory committee agreed with the recommendation.

Bigelow and Clark sued, claiming the decision violated the N.C. Constitution by infringing on their right to free speech and because of racial discrimination. The men also sued for wrongful discharge, because they claim they were fired in retaliation for participating in a labor union and complaints they filed with the union about job safety concerns and town hiring practices.

The appeals court decision Tuesday noted that state law protects employees who participate in unions and file complaints against their employers.

Town Attorney Dan M. Hartzog Jr. declined to comment about the case before talking with town officials.

Bigelow, who was reached by phone Tuesday afternoon, had not heard about the decision.

“That’s good news,” he said.

He declined to comment further without talking to his attorneys.

Grubb: 919-932-8746

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