In the midst of an appeal contesting the legality of his removal from the New Hanover County Board of Commissioners, Brian Berger has filed a discrimination charge with the U.S. Equal Employment Opportunity Commission (EEOC) alleging his removal was retaliatory in nature and discriminatory due to a personal disability.
In the amotion hearing that resulted in Berger’s removal in May, his attorney acknowledged—for the first time publicly—that Berger had been diagnosed with autism, presumably the disability referred to in the charge.
Dated Aug. 2—two weeks after Berger’s appeal was heard by a special superior court judge in North Carolina Business Court—the charge alleges Berger was an employee of the county when he was sworn as a commissioner in December 2010. By January 2011, Berger alleges he was “subjected to harassment because of my disability…” until his removal three months ago.
“I believe that my discharge was discriminatory based on my disability and in retaliation for my participation in protected activity,” Berger says in his complaint, which does not specify what that “protected activity” is.
“For the above stated reasons I believe that I have been subjected to discrimination based on my disability and retaliation for complaining of the same in violation of the Americans with Disabilities Act of 1990, as amended,” he says.
Related story: Commissioners vote 3-2 to remove Berger from board
Berger’s claim to be a county employee is similar to one made by another elected official—former Brunswick County commissioner Charles Warren, who filed a discrimination charge with the EEOC in 2012.
The EEOC dismissed that complaint on the ground that Warren was an elected official, not a county employee.
“Elected officials are specifically excluded from coverage under Title VII” of the Civil Rights Act, the commission stated in the dismissal notice sent to Warren, who had tried to invoke that act in his complaint about an unspecified “discharge” allegedly based on “race” and “retaliation.”
In his complaint, Berger says he was removed, or “discharged,” “because of my disability and in retaliation for participating in protected activity.” The complaint reads as follows:
In or about January 2011, I began to be subjected to harassment because of my disability, in that I was subjected to derogatory comments about my disability, name calling, disclosure of my personnel file and medical information to the media and public, subjected to different policies and procedures for travel reimbursement than my counterparts, removed from the local Social Services Board, wrongfully accused of engaging in illegal conduct and conduct unbecoming of a public official, asked to resign, threatened with discharge, and subjected me to various other acts of harassment and intimidation; this conduct continued until I was discharged.”
Berger goes on to say he filed complaints internally since 2011, and that no action was taken by the county to address them, “as the conduct continued,” he says in the charge.
The county was served with the charge last Thursday.
Meanwhile, James Gale, the special superior court judge deciding Berger’s appeal, has ruled in favor of the county in its request for a protective order to stop Berger’s attorney—Christopher Anglin, of Raleigh—from compiling new evidence beyond what was presented in a hearing in Greensboro last month.
County spokesman Charles Smith said Monday that Gale had issued the order, which was sought in response to attempts by Anglin to subpoena documents relating to Berger’s arrest and prosecution “in various criminal proceedings,” as well as to schedule depositions of Commissioner Jonathan Barfield and Chairman Woody White.
Related story: Berger attorney seeks depositions from Barfield, White; motion filed to stop
The county’s motion asked Gale to stop all discovery, including the issuing of subpoenas, that Berger pay the county’s expenses in obtaining the order, and that the court award the county additional relief as deemed proper. While Gale’s order upheld the discovery request, it denied the latter requests regarding payment of expenses, the amount of which could not be immediately verified through Martin’s law office.
Also Monday, Anglin and John Martin—the Greenville-based attorney representing the county—both filed supplemental briefs as requested by Gale, who said in last month’s hearing he would make a decision based on those documents as to whether the amotion hearing afforded Berger substantive due process, and whether the board of commissioners could act as an impartial decision-maker.
Responses to those briefs from both attorneys are due by Aug. 29.
Previous stories:
- Commissioners chairman calls for Berger’s resignation following incident with governor
- Berger concern prompts metal detectors, bag searches at county board meetings
- Commissioner: Berger removal process ‘untested,’ would set precedent
- Berger files appeal of ouster from New Hanover County Board of Commissioners
- Judge invites lawyers to continue Berger arguments; hearing to be scheduled
Reporter Ben Brown contributed to this report.
Jonathan Spiers is a reporter for Port City Daily. He can be reached at (910) 772-6313 or jonathan.s@portcitydaily.com. On Twitter: @jrspiers
