Fri 4 Feb 2011
Some quick thoughts on tonight’s hearing (Personnel Appeals Hearing Kerry Bigelow: Evidence and Process).
Was there clarity? No. Are some issues more understandable? Yes.
Both the Town and Mr. Bigelow agree that he was a solid worker with a “good attitude”. Both agree that something changed when Mr. Bigelow filed an EEOC complaint when he was passed over for a drivers job, a job his supervisor Larry Stroud said he was well suited for, a job that went to a less qualified candidate.
While the Town and the Appeals Board skirted the issue numerous times, it is also clear that the Town agreed Bigelow’s initial review process for that job wasn’t handled appropriately, that the deficiency in that review rose to the status of a “serious incident” and, apparently, led to the dismissal of a public works manager.
From that point on both sides construct a completely different, but strangely congruent, narrative of Bigelow’s employment.
The Town claims Bigelows behavior, as reported by 10 fellow employees and documented by 7 resident complaints filed by 5 citizens of Chapel Hill, disintegrated. The formerly solid worker now was conducting himself in a detrimental way – a way requiring immediate dismissal. No warnings. No counseling. No management intervention.
The Town crafted a story of a prudent investigation by an outside consultant who clearly documented a series of “serious incidents” from a belligerent, aggressive, combative (and, as the CAI private investigator saw it), dangerous employee.
Bigelow and his lawyer Al McSurely claim that the Town’s first documented “serious incident” was Bigelow’s EEOC (Equal Employment Opportunity Commission) complaint. They sketched out a time-line and a series of Town management maneuvers that deprived Bigelow of due process and led to his retaliatory firing. As Bigelow concluded this evening “they were out to get me..well, they got me”.
The Personnel Appeals Board, led by chair Anita Badrock, did a good job of trying to tease out the truth – what truth, at least, that could be discerned from the anemic Town documentation and contradictory statements made by all the participants, including Mr. Bigelow. Kudos to Anita for her deft handling of tonight’s process.
Kudos, also, to the citizens who turned out. Folks were patient, generally quiet and many held on the full 5+ hours to hear both sides out.
While Mr. Bigelow and Counsel McSurely did a good job laying out a narrative, Bigelow did contradict himself several times, especially when it came to his understanding of the consequences of leaving the pre-disciplinary hearing. It could well be that the 10 employees who verified Bigelow’s discipline problems had their own axes to grind – possibly been cherry picked to deliver a particular slant on his service. It could well be that the frightened citizen was exaggerating or even antagonistic towards Bigelow for some unspecified reason. Simply saying that it was all lies without clearly communicating a factual counter-narrative did not help Bigelow.
The outcome of his case could well hinge on whether the Board believes that Bigelow was afforded due process moreso than if the Town’s case has merit.
Which, finally, leads us to whether the Town’s case was solid.
Given what I have heard from dozens of staff members over the last decade, I could believe a narrative where Town Management actively made life difficult for employees who file EEOC complaints, who ask tough questions.
Yes, hiring CAI, a company with a well-established anti-union stance to manage an investigation of two union organizers for unrelated issues was boneheaded. Yes, there could be more to CAI’s involvement than being the most convenient option, as the interim HR director suggested this evening.
Did Bigelow make that case this evening? No.
It was clear the CAI’s von Der Lippe was hired to do a particular job. That job was not properly done – mistakes in the final report, undocumented investigative questions (possibly leading questions), inadequate interview notes/recordings, confusion as to the Town’s management structure, etc.
Was this because von Der Lippe had some kind of union-busting agenda, as some have suggested? No.
Simply, he was given a particular charter, provided provocative hearsay evidence and pointed directly in Bigelow/Clark’s direction. Based on what he said he was told by Clark and Bigelow’s fellow employees, by management and citizens, you could almost – almost – understand why he ran a background check on them for fear of his own safety. That fear, though, betrays an unfortunate bias which, as far as I can tell by the testimony this evening, undermines the Town’s case.
Finally, the Town failed to provide specific details of the allegations.
We heard of an initial incident – unsubstantiated by any uninterested party – involving what sounds to me as an innocuous comment supposedly made 7/22 on the eve of VP Biden’s visit to the Greenwood neighborhood. We heard of a second incident in September which severely frightened a resident – to the extent that she cowered behind closed blinds until the trash truck left the neighborhood.
On cross-examination, Director Norris alluded to a series of escalations between the two dates, yet it still remains unclear and unsubstantiated what those escalations were. What was clear is that there were a series of missed opportunities to resolve these issues. Miscommunication, especially during the disciplinary process, played a major role in the mess before us.
North Carolina is a right-to-work State, which, essentially means that employers are free to fire folks for any damn reason they want (except gender, race, creed and politics). And while I certainly don’t want an employee who exercises “detrimental personal conduct” resulting in “serious incidents” working for the Town, based on Chapel Hill’s stated principles, the Town is required to do a better job than they did this evening in proving the allegations.
I’m going to sleep on tonight’s evidentiary hearing. Maybe the facts, what few there are, will hang together better in the morning.