State appeals court rules in favor of sanitation workers

May. 07, 2013 @ 06:35 PM

The state Court of Appeals has ruled that Orange County Superior Court Judge Allen Baddour Jr. erred when he dismissed a lawsuit filed by two former sanitation workers who claimed they were wrongfully terminated by the Town of Chapel Hill.

Baddour dismissed the suit filed by attorneys Al McSurely and Clay Turner on behalf of fired sanitation workers Kerry Bigelow and Clyde Clark in May 2012 without comment.

The men, who became known as the “Sanitation 2” were fired in 2010 after residents on their solid waste collection route alleged Bigelow and Clark engaged in threatening and intimidating behavior.

Co-workers also accused Bigelow and Clark of similar behavior, and supervisors complained the two men were insubordinate.

Bigelow and Clark, however, contend they were fired as a result of their union work and complaints about unsafe working conditions.

A three judge Appeals Court panel, in an opinion written by Judge Linda M. McGee, said Bigelow and Clark made adequate claims sufficient enough that they warranted further court action, essentially paving the way for the men to have their day in court where a jury could decide the merit of their claims.

 “While we make no determinations on the merits of Plaintiffs’ wrongful discharge claim, we hold that Plaintiffs have sufficiently pled a claim for wrongful discharge,” the court said. “We vacate the trial court’s dismissal of this claim against Chapel Hill and remand for further action.”       

When reached Tuesday, McSurely said the panel’s ruling was important for public employees and that his clients look forward to moving ahead with their claim.

“We won, obviously, and it looks like a great victory,” McSurely said.

The town now has 30 days to appeal the panel’s decision.

Town Attorney Ralph Karpinos said it is too early to say whether the town will appeal because he has not had a chance to discuss the ruling with a private attorney hired to handle the case.

 “We don’t know yet,” Karpinos said. “We haven’t had the time to talk about it yet.”

The panel affirmed Baddour’s dismissal of Bigelow’s and Clark’s claim against Town Manager Roger Stancil for his part in their dismissal in his individual capacity. It could find no “factual allegations” to support their conclusion that Stancil was “acting outside the scope of his official duties” when he hired Capital Associated Industries Inc., a management consulting firm, to investigate claims Bigelow and Clark were behaving badly on the job.

 “Plaintiffs’ complaint fails to state a good cause of actions against Stancil in his individual capacity,” McGee wrote.

But it did let stand a claim against Stancil in his official capacity as town manager, contending the claim against Stancil and the town are identical and equally viable.

The panel vacated Baddour’s dismissal of Bigelow’s and Clark’s constitutional claims that their right to free speech was violated, that they were fired for pro-union activities and that they were discriminated against because of their race.