Whistleblower sues medical examiner's office over retaliation
08/18/2014 4:57 PM
08/19/2014 5:32 AM
A former manager has sued the N.C. medical examiner’s office, contending he was forced to retire because he told investigators that a state pathologist had mishandled murder evidence.
Kevin Gerity, 57, has filed a lawsuit claiming that threats to fire him were a violation of the state’s Whistleblower Act.
The whistleblower law protects state employees from intimidation and retaliation when they report on “matters of public concern.”
In 2011, Gerity, the former autopsy facilities manager, told his bosses that one of the state’s leading pathologists failed to turn over to detectives a bullet fragment recovered from a homicide victim.
Gerity said he found the bullet after the autopsy and personally gave it to the pathologist.
In 2013, he cooperated with a State Bureau of Investigation probe into how evidence was handled.
Gerity’s attorney, Michael C. Byrne, said the medical examiner’s office targeted his client because he spoke out about the bullet, which the pathologist kept until turning it over during the SBI investigation.
“It’s about as clear-cut of a case (of retaliation) as I have seen,” Byrne said.
In its December 2013 letter warning Gerity about his pending dismissal, the state described Gerity as an office “bully” who acted inappropriately in 2011 when he personally collected a bullet fragment left behind after an autopsy.
The letter said that it appeared Gerity was trying to discredit the pathologist, Dr. Clay Nichols, who performed the autopsy, by the way he photographed, collected and presented the bullet to Nichols.
Gerity resigned Dec. 9, three days after state officials told him he’d likely be dismissed. He retired weeks later.
Gerity’s departure came shortly after cooperating with the SBI probe into the medical examiner’s office and just weeks after the Observer reported on the story.
Byrne said the medical examiner’s office was angry that his client cooperated with the state’s investigation into the 2011 autopsy of Terrell Boykin, a 19-year-old Cumberland County man who was shot and killed during a double homicide.
“They were retaliating against him for raising Cain about it (the bullet fragment) in the first place, and they thought he was the one who tipped off the SBI and the media,” Byrne said. Byrne said Gerity did not tip off the SBI.
A hearing is scheduled for Aug. 26 in the Office of Administrative Hearings in Raleigh.
An Observer investigation earlier this year found some of the state’s pathologists are overworked and perform more autopsies annually than is recommended.
Medical examiners rarely go to death scenes and sometimes don’t look at the bodies in the cases they handle.
Earlier this month, lawmakers agreed to spend an additional $1 million to help fix the medical examiner system. They also asked that the state’s Program Evaluation Division review it and suggest reforms.
Boykin and his friend Rodriguez Harris, 23, were shot and killed around 4 a.m. in a mobile home park near Fayetteville on May 8, 2011.
Two days later, Nichols, then the state’s deputy chief medical examiner, performed Boykin’s autopsy.
An X-ray showed a metal projectile in Boykin’s head. But the bullet was not found during Nichols’ autopsy. Nor was it seen in a second X-ray.
After the autopsy, Gerity said he found the bullet near the cutting board. He photographed it, washed it off and bagged it before taking it to Nichols, who had returned to his office.
Months later, Gerity wrote Dr. Deborah Radisch, the state’s chief medical examiner, and told her Nichols’ autopsy report was wrong. It stated: “No bullet is recovered.”
“Releasing a report that we know is inaccurate, not only puts me in a precarious position personally, but also puts this entire office in jeopardy,” Gerity wrote.
Two and a half years after the autopsy, Nichols gave the bullet fragment to SBI investigators, who received a tip about the possible evidence.
Jim Woodall, the Orange County district attorney who reviewed the SBI’s findings, determined Nichols did not commit a crime by holding onto the bullet. But Woodall said the case raised questions about how the office documented evidence.
The N.C. Department of Health and Human Services, which oversees the medical examiner’s office, conducted its own probe of the 2011 autopsy. Less than two months later, Gerity was told he’d likely be fired.
“How is it that you know someone did something back in 2011 that, in your view makes him deserved to be fired, but you take no action for 2 1/2 years?” Byrne said
Out to get him
Nichols has defended the way he handled the bullet. He said he couldn’t turn evidence over to detectives unless he could attest it came from Boykin’s body.
Nichols said Gerity should have called him into the autopsy room so he could collect the bullet. Instead, Gerity broke the chain of custody by collecting it himself, Nichols said.
“There are known protocols and procedures,” said Kevin Howell, spokesman for the medical examiner’s office. “During our investigation into this matter, Mr. Gerity admitted knowing and violating them.”
Others said it seemed like Gerity was out to get Nichols. According to Gerity’s December disciplinary letter, several pathologists in the Raleigh office said it was unusual for autopsy technicians to photograph and collect evidence themselves.
If his suit is successful, Gerity could be reinstated, earn back pay, have his benefits restored and be paid for damages.
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