Fired WCU worker wins wrongful termination suit
After a former employee won a lawsuit claiming that Western Carolina University had fired him without cause, the university is appealing the decision.
Rob Russell, who lost his job as an electrician with the university’s Division of Facilities Management in November 2014, convinced Administrative Judge Donald Overby in October that the university didn’t have a good reason to fire him. The events that led to his dismissal, Russell said, were set in motion by issues that had been brewing since he joined the staff, two years prior to his dismissal.
As a new hire, Russell, now 52, was paired for training with Michael Carpenter, a maintenance worker who had been with the university since 2005. It didn’t go so well, according to the judge’s decision. Carpenter would routinely steal items like Catamount T-shirts and scrap copper, Russell said, and that bothered him. To boot, Carpenter wasn’t much of a teacher. Two months into his employment, Russell went to his boss, Terry Watson, asking if he could be paired with a different employee.
“All he (Watson) would say to me was, ‘When I get good and ready I’ll rotate you, but until then just deal with it,’” Russell said.
Russell tried once more to talk with Watson before going a step higher, to Ombudsman Jayne Zanglein. In her capacity as ombudsman, Zanglein, also a university professor, was tasked with sorting out conflicts between employees. When Russell revealed the theft, Zanglein reported it to the WCU Police Department, who in turn interviewed Russell, court documents say.
Russell said he’d envisioned that the police would do some kind of stakeout to catch Carpenter, allowing Russell to remain anonymous as the tipster. However, when the police responded to Russell’s tip that Carpenter had just stolen some T-shirts from the stadium, where the crew had been working, it was obvious to all where the police had gotten their information. Carpenter was arrested and promptly fired.
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But not for long. Carpenter challenged the termination, a case heard by Vice Chancellor for Facilities Management Joe Walker. There was no question that the theft had occurred, Walker determined, and in the course of the evaluation he determined that theft was actually fairly common within the division. Carpenter specifically implicated Watson as being party to it, according to the judge’s decision.
But rather than further investigating and disciplining those responsible, Walker reinstated Carpenter with full back pay and benefits. According to the court transcript, he decided that if he upheld Carpenter’s firing, he would “have to look at firing everybody in Facilities Management, or at least … a large number.”
“That Carpenter was reinstated without any discipline is unfathomable to this trier of fact,” Overby wrote in his decision. “That management likewise gave in to the, in essence, bullying because of pervasive criminal behavior is also unbelievable.”
A memo went out to facilities staff advising that further theft would result in disciplinary action. Carpenter got his job back.
“The University took the easy way out by turning its back on criminal activity by its employees,” Overby wrote. “It may have avoided being on the front page of the newspaper, but in so doing WCU gave a wholesale endorsement of bad and criminal behavior which should not have been tolerated.”
Russell met with Walker and Lee Smith, director of operations and maintenance. It was decided that Russell and Carpenter should not have to be alone together in the future, though Russell realized they’d still have to see each other in the break room and when collaborating on large projects.
“There is no question that Petitioner (Russell) became persona non grata,” Overby wrote, noting that Watson ordered Russell to dig ditches alone and by hand much more frequently than before he’d reported the theft.
Another time, Watson changed Russell’s schedule at the last minute, giving an overtime shift Russell had been scheduled to work to another employee — of equal rank to Russell — without giving a reason for doing so.
To that point, Carpenter had been out on Worker’s Compensation and not present on campus following his initial termination.
But after his return in September 2014, more problems arose. On Nov. 4, both men were assigned to a group of six electricians renovating a suite in the H.F. Robinson Administrative Building. At first, they were working on two separate subprojects within the space, but later in the day Jeff Gunter, who was the lead on the job, ordered the two to pull wire together. Russell refused, Gunter insisted, and Russell refused again. Gunter gave the order a third time, “rather forcefully,” Overby wrote, but Russell “shook his head, dropped his tools and work belt, and left the job site.”
According to court documents, Russell had left to find Watson’s supervisor and, failing that, the next person up the ladder — Smith. But he didn’t tell Gunter where he was going. When he found Smith, he told him he was upset and wanted to go home to “cool down.” Smith didn’t respond, which Russell took to mean he had permission to leave, according to the judge’s decision.
But after meeting with Watson and Human Resources officials, Smith decided to place Russell on investigatory leave. Five days later, Russell was invited to a “Pre-Disciplinary Conference” in which he was accused of leaving the work site without permission and purposefully working slowly and destroying pipe he was working with. The next day, Russell got a letter saying he’d been fired.
Overby agreed with Russell’s contention that those justifications shouldn’t fly, writing that Russell had merely been trying to do what he’d been told by Walker, which was to let either Walker or Smith know if he ever felt he was being retaliated against. Overby did draw the distinction that the evidence does not support an actual finding that retaliation occurred — just that Russell felt that’s what was happening.
Not telling Gunter where he was headed was a mistake, Overby wrote, but did not amount to insubordination. And there was no evidence that Russell had been working slowly or destroying materials on purpose.
It pays to compare the way that Carpenter and Russell were treated, Overby continued. On the one hand, Carpenter’s theft went unpunished, even though all involved acknowledged it had happened. On the other, Russell was fired “for one act of insubordination which could have been cured had he merely reported to Gunter where he was going.”
“Petitioner (Russell) felt in good faith he was following directions he had been given by Walker,” Overby continued. “”There is no good faith larceny.”
Therefore, he ordered that Russell get his job back — plus back pay and benefits — and that WCU reimburse Russell’s legal fees.
That was in October. One month later, WCU filed a notice of appeal asking for a reversal of the decision. The document stating the basis for the appeal has not yet been filed, and no court date has yet been set.
Watson retired in May 2015 after 29 years with the university.
“I don’t know why. Why are they appealing it?” Russell said. “I’d be the best employee they have because I know there’s going to be a target on my back. They’ll look for any excuse to kick me to the curb.”
WCU spokesman Bill Studenc said the university is not able to comment, citing constraints due to the ongoing judicial case and its concern with personnel matters.
