Tuesday, April 23, 2024

Attorney for former lab director argues ‘civil conspiracy’ in suit against WPD, NHCSO, DA

Bethany Pridgen MacGillivray’s attorney argued in New Hanover County Superior Court Monday the WPD, NHCSO and DA’s office colluded against the former crime lab director to keep her out of a position when the department was transferred from WPD to NHCSO. (Port City Daily/Amy Passaretti Willis)

WILMINGTON — One month before a civil suit filed by a former crime lab supervisor against local law enforcement goes to trial, the plaintiffs have submitted a civil conspiracy claim to be considered by the judge.

READ MORE: Former crime lab director ordered mediation in lawsuit against law enforcement, DA

The case revolves around Bethany Pridgen MacGillivray — who goes by Pridgen — a forensics chemist hired by the Wilmington Police Department in 2008 but not rehired when the crime lab was transferred to the New Hanover County Sheriff’s Office four years ago. 

Pridgen’s civil suit was originally filed against New Hanover County Sheriff Ed McMahon in May 2022 and amended less than two months later to include Wilmington Police Department Chief Donny Williams (assistant chief at the time), former assistant chief David Oyler (who retired in August), the City of Wilmington and District Attorney Ben David. 

The claim: Pridgen was wrongfully terminated in retaliation for testimony she gave in a WPD internal affairs investigation against former crime lab employee William Peltzer for missing and mishandling drug evidence. Peltzer started his position in 2015, a move supported by the DA, and was fired in January 2019.

According to Pridgen’s attorney, Luke Largess, WPD, NHCSO and the DA wanted to keep the public from knowing about her testimony because it would unveil Peltzer’s 101 cases that were falsified and thus jeopardize hundreds of drug convictions. 

“Our theory of the case is the DA made a demand, ‘We’re not going not to dismiss these cases, we’re gonna move this lab. We’re going to get Bethany out of this picture,’” Largess said. 

Then director of the crime lab, Pridgen also alleges she was discriminated against for her gender, accusing Williams and Oyler of harboring a “long-simmering gender-based malice” against her, which fostered a “negative attitude toward women” within the department.

She believes that bias carried over when the crime lab was transferred from WPD to NHCSO. The sheriff’s office hired Brian Dew over Pridgen — though Largess argues he wasn’t as qualified.

Monday, Largess asked Superior Court Judge John E. Nobles Jr. to include a conspiracy claim to the case — “several people working together to accomplish a wrong.”

“The three of them were working to try to keep her out of the lab to insulate, hermetically seal the lab from anyone from finding out what happened with this chemist until all the cases were resolved,” Largess said. “Punishing her because she testified truthfully about something that was in the internal affairs report.”

The reason Largess did not file the conspiracy claim earlier, he explained to Judge Nobles, was due to new information that had come to light in the last four months. Sheriff McMahon provided testimony Aug. 3 and Largess said it was the first time the sheriff admitted to not following his own hiring procedures and policy. 

Also new to the case: the DA has been added back to the lawsuit. In February, Judge Allen Cobb dismissed the charges against David based on sovereign immunity as a public elected official. However, in September the plaintiffs asked the judge to reconsider, based on new evidence that only came to light during the process of discovery and depositions. 

This included the DA’s criticism of Pridgen’s testimony. Evidence showed David met with WPD about the future of the lab, without Pridgen present, though the results would directly impact her employment. An April press release sent to media about the transfer of the lab stated David fully supported the move.

Largess also points to a meeting with the DA where he allegedly told Pridgen to “leave Wilmington and find work elsewhere” when she asked why she was not rehired for the job when the lab relocated under the sheriff’s jurisdiction.

Cobb overturned his previous ruling on Nov. 22, alleging new information supports “tortious interference” with employment. In other words, the judge agreed David’s action resulted in Pridgen not being offered employment again.

Moving the lab

The plaintiffs are alleging the lab was relocated to keep Pridgen out of the department, while the city claims it was only about funding issues. Documents and calendar events gathered through litigation show WPD, NHCSO and the DA met after Pridgen’s testimony against Peltzer, but she was not included.

“Evidence after March 8, [2019] is, they completely cut her out — no more emails, no more meetings,” Largess said. “We think that’s evidence we can get to a jury about what was really going on here.”

Largess argues discussions about continuing to fund the lab under the WPD were under way as early as January 2019. Therefore, the decision to move it, in April 2019, only came after Pridgen’s testimony.

He pointed to city budget documents outlining a plan for fiscal year 2020, including a note by budget director Laura Mortell, which admitted the lab was not staffed properly. Largess said that’s additional evidence Pridgen was not responsible for things that went wrong.

The budget called for adding a quality assurance position, something Pridgen had pushed for, to be 50% covered by New Hanover County.

“That’s all the agreement was as of March 6, your honor,” Largess said, iterating no discussions were had to move the lab under the county in its entirety.

Largess added the WPD’s wish list for the fiscal year 2020 included money for the crime lab. That document wasn’t provided until Mortell was deposed, he said.

A March 6, 2019 email from senior budget analyst Suzanne Gooding to Chief Williams, who was assistant chief at the time, also showed a finalized budget with the crime lab funding. Williams wrote to Pridgen at the end of February, he was planning to fill the vacant chemist role left by Peltzer’s termination.

“There is a fundamental dispute in the trial, judge, over [the defendants’] position that they decided to transfer the lab back in January,” Largess said. “They didn’t.”

Instead, Largess argues all discussions about the move started after a meeting at the DA’s office March 8, 2019 to discuss Pridgen’s testimony. 

“It’s when the bottom fell out,” Largess said. 

The defendants — Brian Bostic, McMahon’s attorney, as well as attorney Katie Hartzog, hired to represent the city — counterclaim it’s normal for officials to begin discussing the budget that early in the year. Since it has to be in place by July 1, WPD had to ask for lab funding while also simultaneously negotiating with the sheriff’s office about the transfer.

“Those things had to coexist at the same time,” Hartzog said. “That’s not evidence to show there’s collusion.”

She also said WPD’s discussions with the sheriff were still preliminary and needed both city council and commissioner approval. 

Hartzog pointed to evidence Pridgen was well aware the city would not oversee the crime lab in perpetuity due to ongoing funding issues. She pointed to several conversations, as far back as 2017, meaning the transfer was not linked to Pridgen’s testimony.

If the city funding for the lab fell through, it would have had to close anyway, Hartzog confirms.

“The New Hanover County Sheriff’s Office made the decision on who to hire, independently,” Hartzog added. “The same as the city independently made the decision to close the lab. There is no evidence of conspiracy.”

Questionable hiring practices

Largess presented evidence the sheriff’s office did not follow its hiring practices, adding to the collusion. Potential employment with NHCSO undergoes review by a committee, which then makes a recommendation to McMahon. According to Largess, McMahon didn’t consider the committee’s feedback and destroyed the review records, “though the policy is to keep them.”

Largess referenced the Tully claim to back his argument. A 2019 case of police corporal Kevin Tully v. the City of Wilmington ruled public employees have a fundamental right to the “enjoyment of the fruits of their own labor.” When a public employer does not follow its own written principles for hiring, that is evidence of an arbitrary decision, Largess said, which is unconstitutional.

Largess said he learned neither McMahon, nor his staff, could provide a valid reason or support for why Pridgen was not rehired. When the lab was moved, all employees underwent a rehiring process; Pridgen applied twice, in 2019 and in 2021 when the lab was re-accredited for drug testing (the crime lab’s accreditation didn’t transfer with ownership). 

CATCH UP: NHCSO took over WPD crime lab, increased staff and funding, but hasn’t tested any drugs. Here’s why.

Largess also said the sheriff did not assess all the candidates’ qualifications and therefore made an “arbitrary” decision.

Pridgen’s suit states McMahon promised she and her colleagues would continue with their jobs upon the move, but they had to reapply under official policy. Two of her subordinates were rehired.

Prior to the transfer of the lab in 2019, the WPD was testing 300 blood alcohol and 200 drug tests per year. After, the lab lost both of its accreditations and didn’t begin testing blood alcohol until one year later; it took two years until it could test drug cases.

Once the lab was accredited for drug testing again in 2021, Pridgen was not contacted for a role she was suited for. Largess pointed to an email sent by NHCSO Lt. Lauren White in 2021 about reposting the position, claiming the department had not received any qualified candidates.

Meanwhile, Largess said Pridgen was more than competent. She earned a master’s degree in forensic science and is a double accredited forensic chemist capable of performing blood alcohol and drug testing. Pridgen also trained to become an accreditation assessor for other crime labs and took on the role of quality assurance after learning how to audit past cases, following Peltzer’s mishandling of information.

Largess added Pridgen’s job evaluations from 2016 to 2019 were all positive. 

He claims a less-qualified male, Brian Dew, was hired over Pridgen as lab manager. Yet, Dew could not act as an expert witness in trials nor conduct physical and chemical analyses — both requirements of the position, based on the posted job description. Largess said it was evidence the sheriff’s office was trying to keep Pridgen out of the lab.

Bostic countered Largess’ Tully case reference, saying it regards the promotional process and does not apply to hiring practices.

“There’s no evidence to support sex discrimination, so the plaintiff adds a last-minute conspiracy claim,” Bostic told the judge.

He said the sheriff has discretion on who to hire and fire, for whatever reason he wants, and the reason the sheriff didn’t hire Pridgen is that her ill-will toward the department would cause a disruption in the lab. Bostic claims Dew was hired as a manager and had revived closed labs across the globe.

Bostic also alleges Pridgen was responsible for Peltzer’s falsified information and miscounting of drugs as another reason she was not hired. He likened the situation as hypothetical and used the example of a Burger King employee who never cleaned out a grease trap and the supervisor never checked behind him. After the building burned down, McDonald’s takes over and doesn’t hire back the supervisor because ultimately he was responsible for keeping the grease trap clean.

In response, Largess said it was the property control division which found out about the missing drugs and were responsible for tracking them — not Pridgen.

Judge Nobles did not make a ruling during Monday’s hearing to add in civil conspiracy and the trial is still scheduled to begin in January.

Tips or comments? Email amy@localdailymedia.com.

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