After a ruling last week by the North Carolina Court of Appeals, two fired Chapel Hill sanitation workers are now able to take a major step forward with a lawsuit against their former employer.
Kerry Bigelow and Clyde Clark, who are also known as the Sanitation 2, were fired in October 2010 after the Chapel Hill Public Works Department received complaints about them from town residents.
THE “SANITATION 2” CASE
*Oct. 29, 2010: Bigelow and Clark are fired.
*October 2011: An official complaint is filed against Chapel Hill.
*May 2012: The complaint is dismissed by Judge Allen Baddour.
*May 7, 2013: The N.C. Court of Appeals lets the suit move forward.
But Bigelow and Clark allege they were fired not for legitimate reasons but for union organizing and complaining about what they considered to be unsafe working conditions. The men, who are both black, also said racial discrimination may have played a part in their firing.
On May 7, the Court of Appeals ruled they have a viable wrongful discharge claim against the town.
The case, which was originally dismissed by Orange County Superior Court judge Allen Baddour last May, will be sent back to that court for trial.
Al McSurely, the lawyer representing Bigelow and Clark, said the court’s decision is especially significant because of North Carolina’s status as a “right to work” state, meaning private company workers cannot be required to join — or not join — a union.
For public employees, like Bigelow and Clark, union membership in N.C. would not be honored by the state.
“It is a great victory not just for these two men, but for all public employees because it established that there was a valid legal claim for people against, in this case, the Town of Chapel Hill, for firing somebody because they were an active union member,” McSurely said.
Bigelow and Clark joined the N.C. Public Service Workers Union in April 2010.
But town attorney Ralph Karpinos said despite the men’s union affiliation, Chapel Hill had legitimate reasons for firing them.
“We are defending the decision and we will continue to defend the decision,” he said.
According to the Court of Appeals’ findings, officials had received multiple complaints by residents claiming the pair failed to remove yard waste and left debris on the street along their garbage route. These initial complaints began in July 2010.
In September of that year, the town received additional complaints that residents felt threatened by the men.
Bigelow and Clark have not denied these allegations, but they claim they were not given appropriate intermediate disciplinary action. No warnings were required for dismissal in this case, but disciplinary meetings were not held before the men were discharged.
The town now has 30 days to petition the N.C. Supreme Court for a review of the case. If the town decides not to file a petition — or if the petition is not granted — the case will be sent back to Superior Court for a jury trial.
And if a jury trial takes place, McSurely says the plaintiffs intend to go forward with the full discovery process.
He said the plaintiffs will seek back pay for Bigelow and Clark, as well as attorney fees. They will also seek damages to be awarded by the jury.
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