LELAND — The Town of Leland reached a $110,000 settlement last month with three of its former firefighters. The ex-employees alleged in court they were terminated in retaliation for being part of a labor union, essentially made out as an example to deter others from exercising their constitutional right to associate.
Former engineer Matthew Elario, fire captain Dustin Perrell, and battalion chief Ryan Merrill were fired, effective immediately, and escorted out of the fire station in May 2020. Following their terminations, around 20 members of the International Association of Fire Fighters Local 5160 resigned “out of fear for their jobs,” the suit alleges, though the town denied this notion.
While North Carolina municipalities are not bound by law to bargain with unions, public employees have the constitutional right to associate with one, explained Sara Faulman, attorney at the labor law firm McGillivary Steele Elkin LLP.
In September 2020, Elario, Perrell and Merrill initiated the civil action in Brunswick County Superior Court against the town, asserting claims it violated their rights of free speech and assembly, and broke policy by failing to clearly articulate the reasoning for their firings. The plaintiffs’ attorneys have filed a notice of voluntary dismissal with the court, now that the case has reached a resolution.
“The settlement is important,” Faulman said. “It is important for public employees in the state of North Carolina. It demonstrates that towns and other public employees have to follow the North Carolina Constitution and their own policy, and they cannot fire individuals who otherwise have excellent work records without any justification.”
Faulman’s firm, based in Washington D.C., regularly represents firefighters in cases such as this. Travis Payne, of Edelstein & Payne, and Trisha Pande, of Patterson Harkavy LLP, represented the plaintiffs as well.
In a statement to Port City Daily, and in the settlement, the Town of Leland “expressly and unambiguously” denied any wrongdoing. However, each party desired to compromise and settle the dispute. That happened nearly a year and a half after the first complaint was filed.
All three plaintiffs were members of the union since its October 2017 inception. According to the suit, they were instrumental in its founding and regularly attended town council meetings on its members’ behalf.
Tensions between the union and department, detailed in the suit, appear to have ramped up at the onset of the Covid-19 pandemic when first responders were allegedly running emergency calls without sufficient personal protective equipment. According to the suit, members would come to Elario and the union’s board members about the need for more protective equipment.
Then-captain Perrell, in particular, was described as “particularly vocal” about the mask shortage. He had at one point reportedly asked fire chief John Grimes to bring in more personal protective equipment for staff. The complaint says the chief told him masks weren’t needed because Brunswick County’s paramedics had them on hand. After that discussion, the suit alleges Elario and Perrell went on an emergency call where the two paramedics on the scene did not have enough face coverings for all six firefighters there.
The suit indicates issues persisted thereafter. Eventually, the union reached out to the Professional Fire Fighters and Paramedics Association of North Carolina for help acquiring masks, which the organization delivered. On Apr. 12, 2020, the union posted a photo on Facebook of the six members with the packages.
According to the suit, Grimes was frustrated by this and allegedly told the then-union president they had bypassed the chain of command to procure the masks. In its response to the suit, the town gave its side of the story: the chief informed the president of a “town policy which provides directives on the acceptance of donations by the town.” It says the town actually appreciated the efforts “in light of the global shortage of masks due to the worldwide pandemic.”
About a month after this issue arose, on May 7, 2020, there was a “minor workplace personnel dispute” in the fire station. Faulman said this incident was used as “one of many numerous shifting and meritless justifications” for the forthcoming firings.
“They were looking for some sort of justification to shut down that active union voice,” Faulman said.
On that afternoon, Elario and Perrell were chatting with colleagues about the upcoming fire chief vacancy, the suit describes, as chief Grimes was being promoted as the town’s emergency management director. They then approached another firefighter as she was sitting in a recliner and asked if her father had applied for the open chief position.
The suit then alleges she jumped out of her chair and, “in a hostile manner,” raised her voice, questioning why everyone kept asking her that. After Elario walked back into the kitchen, Perrell, who overheard Elario’s question, strode over to her and said: “Did your dad even apply?”
“F*** you, Dustin,” she reportedly said, “storming out” of the room. An hour later, she apologized to Perrell for the behavior in a text, the suit suggests. There was a meeting to work out the conflict, where Elario agreed to only speak to her about work matters through the chain of command moving forward. (A response from the defendants accuses Elario of “past harassment” of his colleague but doesn’t go into detail.)
Nine days after the incident, the three men were brought into an office upon arrival at the station and learned they were being fired. Immediately, they were chaperoned to gather their belongings and leave.
Elario asked Susan Barbee, the human resources director, for an explanation. Barbee said she didn’t owe him one “because North Carolina is a right-to-work state,” the suit alleges.
“After being pressed, HR Director Barbee stated only that the Town is no longer satisfied with his performance,” the suit continues. The complaint explains Perrell and Merrill, terminated in the same meeting, were given similar answers about their leadership being unsatisfactory. A filed response from the town stood by these assertions.
Faulman said the town’s personnel policy requires advance written notice of termination, including the reasoning. According to the suit, chief Grimes would not answer questions during the meeting.
“These are three firefighters who have been employed for a number of years, some longer than others, have had consistently good, excellent evaluations,” Faulman said. “They save lives. They have put their lives on the line for the town — and they were provided with absolutely no justification for their termination, even upon request.”
After the firefighters appealed their terminations, town manager David Hollis upheld the fire department’s decision in a final documented decision on July 6, the suit states; Hollis wrote the men were let go because of their performance and leadership, “not based on any single event, incident, or circumstance.”
A majority of the union members dropped out of the organization after that. Between May 16 and 30, approximately 20 of the 27 members left for “fear of their jobs.”
“The Town terminated Plaintiffs as a way to threaten the employment of other members [of] the Department who were supportive of and associated with Local 5160,” the suit states. It continues, “The terminations therefore constitute bad faith governmental actions and an abuse of governmental powers.”
The day after the three men were fired, Grimes allegedly told other firefighters they “know why they were fired” when others asked questions. (In its filed response, the town said Grimes relayed that it was a confidential matter.)
“Chief Grimes also explained that the Town only likes the Union when it does bagel deliveries – which make the Town look good,” the suit says, referring to a time its members helped students who couldn’t access free breakfast during Covid-related school closures. ” — but not when lawyers get involved.”
Grimes is also accused of approaching four employees, who served on Local 5160’s executive board, telling them it “does not look good for them to be associated with the Union, especially now that Elario, Perrell, and Merrill were seeking legal help through the Union,” the suit states.
“They ended up causing a pretty large number of employees who had previously been in the union to withdraw from union affiliation,” Faulman said.
The executive board vice president was allegedly promoted after his departure from the union to Merrill’s former battalion chief position. In its retort, the town asserted this person was picked because he was the most qualified applicant.
While the town admitted knowledge these people resigned from the union, it denied it was because of concern for their positions.
The settlement with the town issues Elario $17,500, Merrill $45,000 and Perrell $22,500 in back wages. Each also is receiving $5,000 for compensatory damages and $666.66 in legal fees. The town accepted resignations from each former employee, effective in May when they stopped working at the department, and they cannot seek reemployment with the town.
“Settlement is always a compromise, but we are pleased for our clients,” Faulman said. “We are happy that our clients can, kind of, move on and continue the good work that they’re doing elsewhere. One thing that we do think the settlement does, which is great, is it really sends a message to the town and to, frankly, other towns in North Carolina that you can’t just ignore employees’ Constitutional rights and fire individuals like these plaintiffs.”
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