They said; he said

Terri Buckner went to the personnel appeals committee hearing on Thursday night in which Kerry Bigelow appealed his termination from Public Works. Here’s her report:

In 2007, Kerry Bigelow was hired by Public Works at a higher than normal pay rate and promised a driver job when one became available due to his 18 years of experience in Burlington, N.C. When a driver slot arose in 2009, he was passed over for a white man with less experience and filed his first grievance with the town on the basis of racism (Feb. 12, 2010). A month later, after receiving no response, he filed a second grievance on the same matter.

At Thursday night’s hearing, Frances Russell, the town’s interim HR director, described the accusation of racism as a “serious incident.” The HR investigation concluded on June 11, 2010. Though unable to validate the claim of racism, they did find inconsistencies in the hiring process. Although no one at Thursday’s personnel hearing said this directly, there were hints that the manager who conducted the invalidated search was relieved of his position and that there is another private personnel issue surrounding that action.

Bigelow was passed over again on the new search. His response that time was to file an EEOC complaint (June 9, 2010) to which he has not yet received a response.

At some point between February and July 2010, Bigelow appears to have become a safety activist. He filed at least one other grievance against the town about the practice of parking the truck in the center lane on MLK Blvd. and requiring the collectors to “duck and dodge” across two lanes of traffic to pick up and return trash bins. To document the validity of his complaints, Bigelow took pictures of the truck and the driver. He also photographed drivers backing up in a narrow alleyway off Columbia Street, another safety concern for the collectors (who were behind the truck). There is no report of management ever counseling Bigelow that his documentary efforts were causing discomfort for other employees, yet his photography was raised as a problem repeatedly during the hearing Thursday night.

As best as I could understand, his whistle-blowing efforts have caused a change in practice on the alleyway, but no change has occurred surrounding the MLK practice. From what was reported by the CAI investigator, some of the other trash collectors were not happy with Bigelow’s safety activism or the grievances he filed about the job position. Each collection crew has a driver who serves as the crew leader and two collectors. They have a daily route, and as soon as they finish the route, they are done for the day, whether that takes 5 hours or 10 hours. For those workers who don’t worry about safety issues, speed is important. They want the shortest day possible. So it isn’t too surprising that those individuals did not look favorably upon complaints that might extend the workday.

Sometime in July 2010, Lance Norris, Public Works director, was notified by one of his managers that a resident (alias of Mrs. Johnson) had called to complain about the public behavior of Bigelow and his crewmate Clyde Clark. This part of the story is still a bit murky. My understanding is that either Bigelow or Clark informed the resident, in “a threatening and loud manner,” according to the complaint, that the yard waste she had put out on the road needed to be bagged. I think this is the incident that, according to the CAI report, one of the other crews said was so loud that they came from another street away to investigate. I also believe it was this incident that so frightened the woman who lived across the street that she later reported to the CAI investigator and Norris that she was afraid to be outside when the crew came through the neighborhood.

In Mrs. Johnson’s phone testimony Thursday night, she said she called the town after the incident to verify that brush needed to be containerized and was told that was incorrect. However, Mr. Jones, the driver/crew leader for Clark and Bigelow, explained to the committee that residents must cut brush and limbs into 4-foot lengths so that it can be picked up with a mechanical fork. A smaller pile needs to be containerized. The resident should clean up any pieces left behind. Mr. Jones also reported that he had never witnessed Bigelow, with whom he had worked for 2.5 years, being loud or threatening toward any resident.

In response to Mrs. Johnson’s complaint, Norris sent a manager out to review the site. That manager found no problems with any trash left behind or strewn around the neighborhood. Neither Bigelow nor Clark was written up as a result of this incident at the time, although the manager did inform Norris that there had been other complaints lodged against the crew by other neighbors. As a result, the town hired CAI to investigate the situation further.

The town identified seven complaints filed against Bigelow and/or Clark by five residents, two of whom were interviewed by the CAI investigator. Norris participated in both of those interviews. Two separate incidents were reported. The one described above and another one where someone asked the crew to pick up some trash prior to Vice President Biden’s visit. Once they were back on their truck, they made some comment about the “common man” and the VP that the resident felt was unwarranted. I think this particular resident was the husband of Mrs. Johnson. The comment was not made toward him, but in a private conversation between Bigelow and Clark.

Between September and October 2010, in addition to the two residents who were interviewed (across the street neighbors), the CAI investigator talked to 10 Public Works employees. One of those interviews was with their direct supervisor, who had never written up either man nor offered them counseling on their behavior, yet reported to the investigator that he was “at the end of his rope through stress over their behavioral issues.” He claimed that he had counseled them multiple times and that nothing changed.

In these staff interviews, the investigator told the employee up front that he was investigating Bigelow and Clark at the request of the town. By his own admission, his interview strategies were not neutral. He was asking for validation of the accusations that the men were threatening and aggressive.

The investigator concluded that Bigelow and Clark were violent and a threat to residents and co-workers. On Sept. 20, prior to the receipt of the CAI report (Oct. 13) Norris suspended them with pay for “detrimental personal conduct” (Section 14-106 of the town code). Norris reported that following the interview with the woman who was afraid to leave her house when the men were present he didn’t feel he had any choice but suspension. At the time of suspension, the employees were not given any explanation for the action. Norris claimed that this was standard practice, but according to town code, “the department head or supervisor shall provide the employee with written notice of the action taken, the effective date, the reasons for the action and the recourse available to the employee under the provisions of this chapter.” On Sept. 29, still before receipt of the CAI report, they were terminated.

On Oct. 12, Bigelow and Clark were given notice of a pre-disciplinary hearing conducted by Norris. According to Norris, this was the employees’ opportunity to hear the employer’s complaints against them. Again, no specifics as to the allegations against Bigelow were given in the notice. He and Clark took their lawyer to the hearing and were advised after hearing the initial accusations to not participate until the town provided documentation of the accusations. They left the hearing expecting to receive that documentation, assuming the hearing would be continued shortly thereafter.

The details of what happened following the Oct. 12 hearing were not included as part of Thursday night’s personnel hearing. From news reports we know the men appealed their termination to a town committee and were denied. They recently appealed their case to the Employment Security Commission who awarded unemployment compensation due to the commission’s belief that the town failed to make its case.

In his opening remarks, Al McSurely, Bigelow’s and Clark’s attorney, claimed that retaliation is standard behavior in whistle-blower cases. From my research, North Carolina does not cover anyone but state employees under the state whistle-blower statute. So one of the questions for the personnel committee is whether they recognize Bigelow’s actions as whistle-blowing and, if so, whether the town’s actions can be viewed as retaliation against the men for their activism.

The other question the committee must address is whether the resident’s claim of utter fear sounds legitimate. The town code lists “Brutality or threats or intimidating behavior in the performance of duties” as an example of detrimental personal conduct. Do the reports provide sufficient evidence to the committee to warrant the accusation of intimidating behavior? Remember, the woman making this claim was not doing so based on direct contact but on observation of an interaction with her neighbor across the street. In her phone interview Thursday night, Mrs. Johnson, who had the interaction, said she didn’t want the men to be fired and her complaint had nothing to do with race.

The biggest question I believe the committee must address is whether the town followed a reasonable and fair course of action. There is no record in Bigelow’s personnel file that he was ever counseled for threatening behavior with residents, fellow employees or supervisors. The testimony heard Thursday night was contradictory. And then there is the history of racism within the Public Works department that must be considered. Did Bigelow snap following town actions that he considered racist? Is snapping justification for aggressive behavior? Did the town’s investigator collect fair and unbiased reports or did he frame his investigation to provide justification for the town’s desire to terminate Bigelow?

Bigelow wants an apology from the town, reinstatement as a trash collector, attorney fees and punishment of the men who mishandled his case. His responses and demeanor at the hearing on Thursday did not help his case; he wasn’t a particularly sympathetic victim. But he isn’t a victim; he’s an activist. He isn’t just rolling over and letting the town bully him into submission. Regardless of what happens with Bigelow, the larger outcome should be a greater emphasis on safety for all town employees. And hopefully, our progressive town council will adopt some type of local whistle-blower protection policy. My hope is that Bigelow is reinstated, if that continues to be his wish after all is said and done.

— Terri Buckner