Opposition Brief — Picklesimer v. Cox

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IN THE tres.

SUPREME COURT OF THE UNITED STATES

October Term, 1995

EDWARD PICKLESIMER,

Petitioner,

Vv.

LEE COX,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION

MICHAEL F. EASLEY

North Carolina Attorney General

Lars F. Nance

Special Deputy Attorney General

Counsel of Record

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

(919) 733-6026

i

QUESTIONS PRESENTED FOC: REVIEW

SHOULD THIS COURT .2kNY MR.

PICKLESIMER’S REQUES’ FOR A

WRIT OF CERTIORARI BECAUSE HE

FAi’S TO PRESENT A DECISION IN

CONFLICT WITH A DECISION OF

ANOTHER UNITED STATES COURT OF

APPEALS OR OF THE NORTH

CAROLINA APPELLATE COURTS?

DID THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

CORRECTLY UPHOLD THE DISTRICT

COURT’S GRANT OF SUMMARY

JUDGMENT FOR MS. COX?

THIS PAGE INTENTIONALLY LEFT BLANK

iii

LIST OF THE PARTIES

. Petitioner/Plaintiff: Edward Picklesimer

- Respondent/Defendants: Lee Cox, Individually; Rex

Yates, In his representative capacity; State of North

Carolina; Administrative Office of the Courts,

Juvenile Services Division

iv

THIS PAGE INTENTIONALLY LEFT BLANK

TAB F NT

QUESTIONS PRESENTED FOR REVIEW .......... i

ee ie cance ie eno he we 4 839 ili

TARGA Ge AUS HNE Be Se Fe ee vi

STATEMENT OF THE CASE ................... 2

A. Nature of the Case and Proceedings Below ...... 2

SE ra 4

REASONS WHY THE PETITION SHOULD BE DENIED

I. MR. PICKLESIMER HAS FAILED TO

EVEN ALLEGE APPROPRIATE GROUNDS

FOR GRANTING A PETITION FOR WRIT

OF CERTIORARI. MR. PICKLESIMER

MERELY STATES THE DISTRICT COURT

AND CIRCUIT COURT SHOULD HAVE

FOUND THAT MATERIAL ISSUES OF FACT

po ge ow a Sree See eee 7

Il. THE CIRCUIT COURT CORRECTLY UP-

HELD THE DISTRICT COURT’S GRANT OF

SUMMARY JUDGMENT. ................ 8

GI ny too os kh ae kee KE RS 10

SS ig 8 CES he hce 8 Kee ae 8 la-15a

vi

TABLE OF AUTHORITIES

CASES

Braxton v. U.S., 500 U.S. 344, 111 S. Ct. 1854,

te) © Ff Ree eer eee Pee 7

Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684,

To &. G4. 2A Fee CSS) . oo ew hs See AH. 8,9

Layne & Bowler Corp. v. Western

Well Works, Inc., 261 U.S. 387,

43S. Ce:432,: GF Li Bh. TIS 9D) © 0s ok HOW ed 8

Rice v. Sioux City Memorial Parks

Cemetery, 349 U.S. 70, 75 S. Ct.

GEG SF Le Sr Clee SS OE FEA H%

Stroman v. Colleton County School District, 981 F.2d 152

ah Gir, BGs 0 1 eA CREA CORR. )

Wilson v. Bellamy, 105 N.C. App. 446, 414 S.E.2d 347

review denied, 331 N.C. 558, 418 S.E.2d 668 (1992) 9

STATUTES

Be USC. BGR) ove cs cited See 0 Ae 3

TSUDA. GTS. 6 60 eas Ke Sie eee eee eae 8

MISCELLANEOUS

Fou. R. CY, PB. TSB) as he ee ene + eee 4

SUP. CT. R. 10(a), 28 US.C. Wereree re ne 7

WAI s Gels Uh Ls OF a As 8s we Ree ee 4

NO. 95-2037

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

EDWARD PICKLESIMER,

v.

LEE COX,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION

The Respondent Lee Cox in her individual capacity

respectfully requests that the Court deny the Petition for Writ

of Certiorari, seeking review of the United States Court of

Appeals for the Fourth Circuit’s opinion in this case.

Assuming arguendo, Mr. Picklesimer sought appeal

in the Fourth Circuit of the dismissal of: Lee Cox (official

capacity), Rex Yates (official capacity), the State of North

Carolina and the Administrative Office of the Courts. These

2

defendants, also, respectfully request that the Court deny the

Petition for Writ of Certiorari. The district court decision

was unreported. The United States Court of Appeals for the

Fourth Circuit’s decision was an affirmance by unpublished

per curiam opinion. (Petition A.1 - A.4)

STATEMENT OF THE CASE

A. Nature of the Case and Proceedings Below

Mr. Picklesimer initiated this suit against: Ms. Lee

Cox, in her individual and official capacity as his supervisor;

Mr. Rex Yates, in his official capacity as Western Area

Administrator of the Administrative Office of the Courts,

Juvenile Services Division; the Administrative Office of the

Courts; and the State of North Carolina. Mr. Picklesimer

was employed as a juvenile counselor by the State of North

Carolina, Juvenile Services Division of the Administrative

Office of the Courts. Over a period of time prior to his

resignation, Mr. Picklesimer filed grievances with the

Administrative Office of the Courts alleging "improper

actions” taken by Ms. Cox. After an administrative review

of his record, Mr. Picklesimer was offered a transfer to

another judicial district. Mr. Picklesimer declined the

transfer, thereby terminating, of his own accord, his

employment with the State.

A significant time later, Mr. Picklesimer brought this

suit alleging that he was "unjustly terminated" from his

employment with the State of North Carolina, Administrative

Office of the Courts, Juvenile Services Division. Mr.

Picklesimer contends that his history of disagreements with

Ms. Cox caused him to file grievances within the

Administrative Office of the Courts which Mr. Picklesimer

3

alleges amounted to speech protected under the First and

Fourteenth Amendments. Mr. Picklesimer contends that Ms.

Cox singled him out for termination as a "direct and

ren result of [his] exercising his freedom of speech .

. ." Mr. Picklesimer further contends that Ms. Cox

*[s]ystematically engag[ed] in a plan to cause [his]

termination or transfer . . . without just cause[,]" and made

derogatory comments concerning his competence and ability

to perform his duties as a juvenile counselor, thereby,

intentionally inflicting mental and emotional distress.

Chief Judge Voorhees dismissed, by Memorandum

and Order of Dismissal filed January 21, 1994, all of Mr.

Picklesimer’s claims against the State, the Administrative

Office of the Courts, Mr. Yates and Ms. Cox in their official

capacities, and all of Mr. Picklesimer’s claims for punitive

damages, permitting only the claims against Ms. Cox in her

individual capacity to go forward. Ms. Cox filed a motion

for summary judgment, to which Mr. Picklesimer failed to

respond. Magistrate Judge Davis, noting Mr. Picklesimer’s

failure to respond, nonetheless engaged in a detailed analysis

of the law. After the Memorandum and Recommendation

was filed, Mr. Picklesimer’s counsel, claiming a clerical

error in docketing the time for response, requested leave to

file a response to Ms. Cox’s motion for summary judgment

and to file objections to the Memorandum. The District

Court allowed Mr. Picklesimer to file late responses to Ms.

Cox’s motion for summary judgment. Mr. Picklesimer’s

untimely submissions were considered in ruling on Mr.

Picklesimer’s objections.

The District Court conducted a de novo review of that

portion of the Memorandum and Recommendation to which

objections were filed, pursuant to 28 U.S.C. § 636(b). In

4

conducting this review, the District Court considered Mr.

Picklesimer’s responses to Ms. Cox’s motion for summary

judgment. By Judgment dated February 2, 1995, Chief

Judge Voorhees dismissed all of Mr. Picklesimer’s remaining

claims against Ms. Cox in her individual capacity. Mr.

Picklesimer appealed the Judgment of February 2, 1995

which dismissed all of the remaining claims against Ms. Cox

in her individual capacity. On March 19, 1996, the Fourth

Circuit issues an affirmance by unpublished per curiam

opinion.

Pursuant to Rule 15(2) of the Rules of the Supreme

Court, Ms. Cox in her official capacity, Mr. Yates, the State

of North Carolina and the Administrative Office of the

Courts notify the Court that they contend that Mr.

Picklesimer’s request for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit is not a

cognizable attack on their Federal Rules of Civil Procedure,

Rule 12(b) dismissals.

B. Factual Background

Mr. Picklesimer was employed by the State of North

Carolina, Administrative Office of the Courts, Juvenile

Services Division, as a juvenile counselor. In 1991, he was

offered a transfer to another judicial district. He declined to

accept this juvenile counselor position and left employment

with the State. Several years later, he brought suit alleging

that his history of disagreements with his second level

supervisor, Ms. Cox, caused him to file grievances within

the Administrative Office of the Courts which amounted to

protected speech. Ms. Picklesimer claimed his transfer,

which he characterized as a termination, violated his free

5

speech rights. He also accused Ms. Cox of intentional

infliction of emotional distress.

Ms. Cox is the Chief Court Counselor for a three-

county area. She supervises two lead court counselors who

in turn supervise the district s eight court counselors. On

January 14, 1991, Ms. Cox wrote her supervisor Area

Director Yates and detailed Mr. Picklesimer’s failure to meet

Minimum Standards which are the absolute minimum

standards of acceptable service to be provided in a child’s

case. For example, Mr. Picklesimer had: dropped juveniles

from his active case load and not provided service despite

court orders of active probation; failed to schedule regular

contacts; failed to redirect an inappropriate adult charge for

juvenile services processing; failed to respond to the

Interstate Compact on Juveniles concerning their request for

supervision or provide reports on the juvenile’s progress.

Mr. Yates indicated termination was the appropriate course

of action. Ms. Cox is not authorized to dismiss an employee

and only recommended dismissal after her immediate

supervisor, Mr. Yates, informed her this was the appropriate

course of action. Despite Ms. Cox’s recommendation and

the recommendation of the Juvenile Service’s Division

Director, Dr. Thomas Danek, for dismissal, Mr. Picklesimer

was not dismissed. Mr. Picklesimer terminated his own

employment when he refused a transfer out of Ms. Cox’s

district to the Twenty-First District which was offered by the

Assistant to the Director of the Administrative Office of the

Court’s.

Mr. Picklesimer raised two grievances during Ms.

Cox’s tenure as his second level supervisor. Both concerned

his purely personal personnel situation. One involved Ms.

Cox’s refusal to allow him to inspect her personal notes

aa a

6

about him as an employee. The second incident involved

Mr. Picklesimer maintaining that as his supervisor and his

supervisor’s supervisor, Ms. Cox was not authorized to

communicate with him directly. Ms. Cox had sent a

memorandum to Mr. Picklesi:ser reminding him that he was

to notify her in writing of outside employment after the

Lenoir office received a copy of a student’s test. Mr.

Picklesimer explained that the test was a make-up and he was

not currently teaching at the local community college. The

explanation was accepted without question and the

memorandum did not appear in his personnel file.

Ms. Cox’s interaction with Mr. Picklesimer was

viewed by other juvenile service co-workers as a professional

working relationship. Ms. Cox praised Mr. Picklesimer

when he performed well and recommended him for merit

increases on the five occasions he was eligible. Ms. Cox’s

concern was for the children in the court system. She noted

Mr. Picklesimer’s failings in a constructive, interactive

manner when he failed to meet Minimum Standards. In

addition to her fair minded appraisals that produced merit

increases for Mr. Picklesimer and the always professional

interaction observed by the Juvenile Services staff, Ms. Cox

accommodated all of Mr. Picklesimer’s light duty assignment

requests.

Mr. Picklesimer was treated fairly by Ms. Cox. Her

dealings with him were as his direct or second level

supervisor. Her attempts were always aimed at trying to

have Mr. Picklesimer deliver an acceptable level of service

to the children whose lives were touched by Juvenile

Service’s supervision.

7

REASONS WHY THE PETITION SHOULD

BE DENIED.

I. MR. PICKLESIMER HAS FAILED TO EVEN

ALLEGE APPROPRIATE GROUNDS FOR

GRANTING A_ PETITION FOR WRIT OF

CERTIORARI. MR. PICKLESIMER MERELY

STATES THE DISTRICT COURT AND CIRCUIT

COURT SHOULD HAVE FOUND THAT

MATERIAL ISSUES OF FACT EXIST IN THIS

CASE.

Supreme Court Rule 10 denominates considerations

governing review on certiorari. Rule 10 lists three reasons

considered by the Court in exercising its discretion.

Although Rule 10 does not control the Court’s discretion, it

is clear Mr. Picklesimer by merely focusing on his desire for

a different result, in his unpublished case, does not present

the Court with a decision in conflict with the decision of

another United States court of appeals. See, SUP. CT. R.

10(a), 28 U.S.C.

As applied by the Court, the principal purpose for

certiorari jurisdiction is to resolve conflicts among circuit

courts of appeals. Braxton v. U.S., 500 U.S. 344, 347-48,

111 S. Ct. 1854, 1857, 114 L. Ed. 2d 385, 391 (1991). Mr.

Picklesimer does not present, or even allege, a conflict

between circuits. He merely argues that the summary

judgment motion should have been decided differently. As

the Court previously held: ". . . it is very important that we

be consistent in not granting the writ of certiorari except in

cases involving principles the settlement of which is of

importance to the public as distinguished from that of the

parties and in cases where there is a real and embarrassing

conflict of opinion and authority between the circuit court of

appeals." Layne & Bowler Corp. v. Western Well Works,

Inc. , 261 U.S. 387, 393, 43 S. Ct. 422, 423, 67 L. Ed. 712,

714 (1923) quoted in, Rice v. Sioux City Memorial Parks

Cemetery, 349 U.S. 70, 79, 75 S. Ct. 614, 620, 99 L. Ed.

897, 904 (1955). Mr. Picklesimer alleges no conflict and

does not show why this unpublished case concerning his

personal, personnel situation decided by the Fourth Circuit

without oral argument involves matters important to anyone

besides the parties to this case.

Mr. Picklesimer’s Petition for Writ of Certiorari

should be denied because appropriate grounds for granting

the petition do not exist. This case involves a purely

personal, personnel dispute that was appropriately decided by

the lower courts.

fl. THE CIRCUIT COURT CORRECTLY UPHELD

THE DISTRICT COURT’S GRANT OF

SUMMARY JUDGMENT.

Even assuming for arguments sake that the Court

overlooks the fact Mr. Picklesimer is only disputing the

result in his case, instead of pointing to a real and

embarrassing conflict between the circuits, the fact remains

that the lower courts correctly allowed summary judgment

for Ms. Cox. First, the district court correctly applied §

1983 free speech case law. Citing Connick v. Myers, the

circuit court correctly concluded that Mr. Picklesimer’s

claims involved purely personal, internal grievances.

Connick v. Myers, 461 U.S. 138, 154, 103 S. Ct. 1684,

1694, 75 L. Ed. 2d 708, 724 (1983). In reaching this

decision, the circuit court conducted a de novo review of the

district court’s grant of summary judgment. The circuit

9

court properly concluded that "[Mr. Picklesimer’s] grievance

to [Ms.] Cox’s superiors related to Cox’s ‘failure as a

supervisor, her inadequacies in administrative duties and her

personal attacks on [him].’" Since these complaints did not

involve matters of public concern the circuit court, citing

Connick, determined a First Amendment claim was not

established. See, Connick, 461 U.S. at 154. (Petition A.3)

The circuit court following Connick and the district court’s

reasoning found as a matter of law that Mr. Picklesimer’s

complaints about Ms. Cox expressing disdain for her

leadership and managerial skills both to her and her superiors

were as a matter of law expressions that were not public but

instead concerning employee grievances. The internal

complaints did not constitute protected free speech. (Petition

A.3; A.8, citing, Stroman v. Colleton County School Dist. ,

981 F. 2d 152, 156 (4th Cir. 1992)) Mr. Picklesimer’s

complaints were personal to him and internal to his

employer’s organization.

Second, the circuit court applying North Carolina

infliction of emotional distress tort law properly determined

Plaintiff Picklesimer had not established extreme and

outrageous conduct exceeding all bounds of societal decency.

Citing, e.g., Wilson v. Bellamy, 105 N.C. App. 446, 414

S.E.2d 347, review denied, 331 N.C. 558, 418 S.E.2d 668

(1992). Mr. Picklesimer does not allege North Carolina law

was improperly applied by the circuit court or that this

decision creates a conflict with North Carolina appellate

decisions. He instead, urges the Court to improve his

situation by finding summary judgment was inappropriate.

10

CONCLUSION

For these reasons, Mr. Picklesimer’s Petition for Writ

of Certiorari to the United States Court of Appeals for the

Fourth Circuit should be denied.

MICHAEL F. EASLEY

North Carolina Attorney General

Lars F. Nance’

Special Deputy Attorney General

North Carolina Department of Justice

P.O. Box 629

Raleigh, North Carolina 27602-0629

Telephone: (919) 733-6026

July 18, 1996 *Counsel of Record

APPENDIX

APPENDIX

TABLE OF CONTENTS

U.S. SUP. CT. R. 10,28 U.S.C. ...

May 23, 1994 Affidavit of Lee N. Cox

2 2.0 .-. 2+ F-@ 6-6. ere. 6 ev

i eo oe a at ae SE oS Pe

la

U.S. Sup. Ct. Rule 10, 28 U.S.C.

Rule 10. Considerations Governing Review on Certiorari

Review on a writ of certiorari is not a matter of right, but

of judicial discretion. A petition for a writ of certiorari will be

granted only for compelling reasons. The following, although

neither controlling nor fully measuring the Court’s discretion,

indicate the character of the reasons the Court considers:

(a) a United States court of appeals has entered a

decision in conflict with the decision of another United

States court of appeals on the same important matter; has

decided an important federal question in a way that

conflicts with a decision by a state court of last resort; or

has so far departed from the accepted and usual course of

judicial proceedings, or sanctioned such a departure by a

lower court, as to call for an exercise of this Court’s

supervisory power;

(b) a state court of last resort has decided an important

federal question in a way that conflicts with the decision of

another state court of last resort or of a United States court

of appeals;

(c) a state court or a United States court of appeals has

decided an important question of federal law that has not

been, but should be, settled by this Court, or has decided

an important federal question in a way that conflicts with

relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.

2a

IN THE

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NORTH CAROLINA

(SHELBY DIVISION)

FILE NO. 4:93CV74

Edward Picklesimer,

Plaintiff,

Vv.

Lee Cox, Individually,

and in her represen-

tative capacity, Rex

Yates, in his representa-

tive capacity, State of

North Carolina and the

Administrative Office of

the Courts, Juvenile

Services Div.,

Defendants.

Ne me ee ee eee ee ee ee ee”

AFFIDAVIT IN SUPPORT

OF MOTION FOR

SUMMARY JUDGMENT

LEE N. COX, being duly sworn deposes and says:

1. I am employed by the North Carolina Administrative

Office of the Courts Juvenile Services Division as a Chief Court

Counselor II for the Twenty-Fifth District Court District.

2. The Twenty-Fifth District comprises Burke, Caldwell

and Catawba counties with offices located in Lenoir, Morganton,

Hickory and Newton.

3. I have been employed as a Chief Court Counselor since

November 1, 1975.

3a

4. In my capacity as Chief Court Counselor II, |

supervise two lead Court Counselors who in turn supervise the

district’s eight Court Counselors. I am, in turn, supervised by an

Area Administrator.

6. Eddie Picklesimer was employed by the Twenty-Fifth

District on January 1, 1976.

7. From January 1, 1976 to April 15, 1988 and October

1989 to May 1, 1990, I was his immediate supervisor .

8. From April 15, 1988 to October 1989 his immediate

supervisor was Marion Brewer.

9. From May 1, 1990 to March 28, 1991 his immediate

supervisor was Rudolph Turbeville.

- 10. Court Counselor is the state classification for the job

performed by Eddie Picklesimer.

11. Court Counselors may hold different working titles:

court counselor, intake counselor, intensive services counselor,

alternatives to detention counselor or training school specialist.

12. Whatever the Court Counselor’s working title, they

are all classified in the state system as a court counselor, hold the

same state classification and are subject to having their job duties

rotated among the various working titles.

13. When Mr. Picklesimer started work with the Twenty-

Fifth District, he functioned under the intake counselor working

title for all three counties. On May 1, 1976, another counselor

was hired. She started functioning as the intake counselor for

Catawba County on June 1, 1976.

14. Mr. Picklesimer functioned under the working title of

intake counselo: until November 15, 1988.

4a

15. From Nov. 15, 1988 to March 1, 1990, Mr.

Picklesimer functioned as the Training School Specialist.

16. From September 5, 1989 to October 31, 1989, Mr.

Picklesimer held an interim light duty assignment.

17. From November 1, 1989 to March 1, 1990, Mr.

Picklesimer functioned as a training school specialist.

18. A court counselor’s assignment to a particular job

function, intake counselor, court counselor or training school

specialist within a district requires the ultimate approval of the

Area Administrator.

19. Each of Mr. Picklesimer’s job assignments with

accompanying working title was approved by the Area

Administrator after September 1984. Prior to September 1985,

changes in working titles were approved by the Administrator or

Assistant Administrator.

20. Assigning Mr. Picklesimer to the working title of

training school specialist and moving him from the role of intake

and court counselor for Burke County was at the impetus of the

Area Administrator, Mr. Rex Yates.

21. Mr. Picklesimer had a persistent and constant problem

with keeping records current. For example, his August 4, 1978

evaluation noted he was fair at keeping his records current. This

evaluation was subsequently upgraded to average. Mr. Picklesimer

did not contest the assessment. His June 11, 1979 evaluation rated

him as only average at keeping up with his dictation. The rating

was subsequently upgraded to good in December 1979. Mr.

Picklesimer did not contest the rating. Formal evaluations were not

performed from July 13, 1981 to November 1985. When an

evaluation was performed on April 28, 1986, I noted that Mr.

Picklesimer’s paperwork still needs attention. Mr. Picklesimer did

not contest this assessment. On Mr. Picklesimer’s April 24, 1987

5a

evaluation, I noted that many of Mr. Picklesimer’s comments

about certain aspects of his work were negative and I would like

to see as change in his attitude and comments. On Mr.

Picklesimer’s October 15, 1987 evaluation, I noted that Mr.

Picklesimer was not following the new procedures well and was

not timely completing dictation. He did not contest his rating. On

his April 11, 1988 evaluation I noted that he was doing an

unacceptable job of keeping up his dictation. His April 12, 1989

evaluation similarly stated that the quality of his work was poor.

22. His last evaluation was done verbally in 1991 by his

direct supervisor, Rudolph Turbeville, with handwritten notations

in pencil. It was never signed by anyone. The Area

Administrator, my supervisor, instructed me not to complete this

evaluation. He informed me the evaluation would be completed by

the Chief Court Counselor in the Twenty-first district where Mr.

Picklesimer was being transferred.

23. Administrative Office of the Court employees other

than Supreme Court Justices, Court of Appeals Judges, the

Appellate Defender and the AOC Director are employees at will.

This is clearly laid out in the AOC Personnel Management Manual

in Section 3.20. (Attached as Exhibit 1) I reviewed this fact with

the District Twenty-Five employees at a staff meeting held on June

17, 1988. The minutes memorializing this staff meeting were

given to Mr. Picklesimer.

24. On January 14, 1991, I wrote to Rex Yates, the Area

Administrator and detailed Mr. Picklesimer’s failure to meet

Minimum Standards in several cases under his control. (Attached

as Exhibit 2) Note: the copy filed in the Clerk’s office has been

redacted. The juveniles are referenced by initials only. The court

has also been provided an unedited version for in camera review.

The plaintiff has been provided both a redacted and an unedited

copy of the memorandum.

6a

25. Minimum Standards are the absolute minimum amount

of acceptable service to be provided by the court counselor in a

child’s case. In my memorandum, I asked my supervisor whether

"action under Personnel Management Manual Section 7, top of

page 7.4 is applicable or if another action is more advisable."

26. I was advised by, Mr. Yates, the Area Administrator

and my supervisor that because of the severity of Mr.

Picklesimer’s documented failure to meet Minimum Standards, that

termination was the appropriate course of action.

27. I concurred with Mr. Yates’ assessment and

memorialized it in a recommendation to him dated February 4,

1991. (Attached as Exhibit 3)

28. During the week of December 14, 1990 our office

received a letter from Interstate Compact regarding, MN, an

interstate probationer requesting a report.

29. An investigation by Mr. Turbeville, Mr.

Picklesimer’s direct supervisor, revealed the following:

(a) Mr. Picklesimer ceased to provide services and

dropped MN’s case from his active caseload in July 1990 when in

fact the court had ordered the juvenile to remain on active

probation.

(b) Mr. Picklesimer failed to schedule regular contact with

the probationer as required by the division’s Minimum Standards.

(c) Mr. Picklesimer was aware that the juvenile had been

inappropriately charged with a new offense, as an adult, yet made

no attempt to redirect the complaint to Juvenile Services for

appropriate processing.

(d) Mr. Picklesimer did not respond to the Interstate

Compact on Juveniles concerning their request for supervision or

provide reports on the juvenile’s progress.

(e) No documentation was provided, by Mr. Picklesimer,

on his contacts with the juvenile.

7a

(f) Because of Mr. Picklesimer’s multiple failures, and

effectively removing the juvenile from supervision on his own

initiative in contravention of a court order, the juvenile was not

held responsible for payment of restitution at a time he could pay

(Memorandum from Rudolph Turbeville to Lee Cox dated January

7, 1991, attached as Exhibit 4)

29. MN was not the only juvenile effectively dropped

from supervision by Mr. Picklesimer. CS, a juvenile was placed

on probation for one year beginning November 2, 1989. Rich

Bruder acted as counselor through the last recorded entry on

March 8, 1990. The case was accepted for supervision by Mr.

Picklesimer in April 1990. Mr. Picklesimer circumvented the

judge’s order of probation by terminating the case from his list of

active cases before the June 1990 review. Probation was allowed

to expire with no service by Mr. Picklesimer between March 8,

1990 and the end of the probation order: November 1, 1990. Mr.

Picklesimer admitted to his direct supervisor, Ruby Turbeville, that

he never saw the juvenile. (See, Exhibit 4 attached; Note: the

copy filed in the clerk’s office has been redacted. The juveniles

are referenced by initials only. The court has, also, been provided

an unedited version for in camera review. the plaintiff has been

provided both a redacted and an unedited copy of the

memorandum)

30. The KO case was transferred from court counselor

Robbins to Mr. Picklesimer in March 1990. The case was

withheld from records review by Mr. Picklesimer after April 12,

1990 and protective supervision was allowed to terminate on July

12, 1990 without any document and service and with the case

being withheld from as supervisor’s review by Mr. Picklesimer.

KO would have benefited from intervention by a court counselor.

KO was again submitted for supervision on October 9, 1990 on a

new intake petition. The juvenile was again placed on protective

supervision on November 15, 1990.

31. Mr. Picklesimer’s actions in withholding cases from

review, failing to provide service to juveniles and acting as if he

was above the court by dropping juveniles from supervision while

an order of probation was outstanding caused me to ask the Area

Administrator what course of disciplinary action to pursue.

33. I only recommended Mr. Picklesimer’s dismissal after

my immediate supervisor informed me this was the appropriate

course of action.

34. I am not authorized to dismiss an employee.

35. Despite my recommendation and the recommendation

of the Juvenile Service Division Director, Dr. Thomas Danek, for

dismissal, Mr. Picklesimer was not dismissed.

36. Mr. Picklesimer terminated his own employment

when he refused a transfer out of my district to the Twenty-First

District which was offered to him by Bob Atkinson, the Assistant

to AOC Director Freeman. (See, Exhibit 5)

37. During Mr. Picklesimer’s employment with the

Twenty-Fifth District I never violated any of his rights to free

speech or stifled his agency grievances.

38. Mr. Picklesimer raised two grievances during my

tenure as his second level supervisor.

39. Both grievances concerned his purely personal

personnel situation.

40. On October 9, 1990 Mr. Picklesimer filed a

grievance with his immediate supervisor, Rudolph Turbeville,

expressing a problem with a memorandum I sent him on July 23,

1990 (July 23, 1990 Memorandum and student test papers attached

as Exhibit 6) and my subsequent refusal to allow him to inspect my

personal notes concerning him as an employee.

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41. Despite knowing his official personnel file was

located in Raleigh, he maintained I was obligated to allow him to

inspect my purely personal notes on his performance as an

employee.

42. Mr. Picklesimer further maintained I, as his

supervisor and his supervisor’s supervisor, was not authorized to

communicate directly with him. Mr. Picklesimer maintained my

July 23, 1990 memo violated his perception of a chain of

command in AOC.

43. In my July 23, 1990 memorandum to Mr.

Picklesimer with a copy to his direct supervisor, I did nothing

more than remind him that he was to notify me in writing of

outside employment. When our Lenoir office received a copy of

a student’s test, I thought Mr. Picklesimer may have started

teaching a new class without providing AOC notice of the place,

dates, times and duration of the class.

44. Mr. Picklesimer explained he was not currently

teaching a class at the local Community College and the student

was sending in a make-up test. I accepted his explanation without

question. He asked if my July 23rd memorandum (Attached as

Exhibit 6) would appear in his personnel file. I indicated it would

not and it did not.

45. I thought nothing more of my July 23, 1990

memorandum, or my refusal to let a subordinate employee review

my personal notes, until I received a memorandum from Rudolph

Turbeville, attached as Exhibit 7), forwarding a grievance

memorandum dated October 9, 1990 from Mr. Picklesimer

(attached as Exhibit 8)

46. I replied to Mr. Picklesimer by memorandum dated

November 1, 1996 (attached as Exhibit 9)

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47. My supervisor, the Area Administrator, replied to

him on November 19, 1990 (attached as Exhibit 10)

48. Mr. Picklesimer requested further review of Mr.

Yates’ decision in a letter dated December 26, 1990. (attached as

Exhibit 11)

49. Mr. Yates forwarded Mr. Picklesimer’s request to

Dr. Danek, the Administrator of the Juvenile Services Division,

which was forwarded to Mr. Hill, the Personnel Director for

AOC.

50. Mr. Hill again affirmed the propriety of denying

Mr. Picklesimer access to my personal notes.

51. Mr. Freeman, the Director of AOC, accepted the

recommendation.

52. Mr. Picklesimer’s complaint was purely about his

personal situation. I did not violate Mr. Picklesimer’s

constitutional rights by directly reminding him of the need to

notify his primary employer if he took outside employment.

Similarly I feel a subordinate, although always entitled to access

to his official personnel file, cannot force a supervisor to disclose

her personal notes against her will.

53. On November 15, 1988, Mr. Picklesimer was

assigned the job duties of a Training School Specialist.

54. This transfer was the idea of the Area

Administrator and was undertaken to create a more positive image

for the Juvenile Services Division in Burke and Caldwell counties.

55. Shortly after Mr. Picklesimer assumed the Training

School Specialist role, he received a catheter related to his

cholesterol problem. Complications apparently developed and Mr.

Picklesimer had an operation on December 7, 1988. He was

lla

cleared to return to work in March of 1989 without restrictions.

(See Exhibit 12 attached)

56. in March 1989, Mr. Picklesimer worked part-time

and was assigned to Burke and Caldwell counties as Training

School Specialist. In April 1989 Mr. Picklesimer returned full-

time to his job duties as a Training School Specialist.

57. Mr. Picklesimer indicated he could not perform the

job duties of a Training School Specialist and requested he be

allowed to act as Court Counselor for Burke County alone or act

as the Burke County Intake Counselor with a one-half caseload in

Burke County.

58. On May 3, 1989 Mr. Picklesimer’s physician

provided the attached note. (Exhibit 13)

59. I forwarded Mr. Picklesimer’s request and Dr.

Richardson’s note to, the Area Administrator, Rex Yates. Mr.

Yates authorized me to make the accommodations listed in my

memorandum dated June 6, 1989. I, also, discussed short and

long term disability options with Mr. Picklesimer.

60. Mr. Picklesimer maintained he had no disability

and refused the accommodations I was authorized, at that point, to

extend.

61. Subsequently, I was authorized to allow Mr.

Picklesimer to basically remain in the Burke county office and

coordinate a workshop for the staff as a special light duty

assignment.

62. On October 19, 1989, I asked Mr. Picklesimer his

intentions for the month of November 1989. He indicated he was

planning to resume his regular duties on November 1, 1989.

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63. I was authorized as a result of the agreed

settlement of Mr. Picklesimer’s grievance in September, 1989 by

Rex Yates (attached as Exhibit 14) to allow him to perform a

special light duty assignment until November 1, 1989.

64. After November 1, 1989 Mr. Picklesimer could

obtain month to month continuation of the special light duty

assignment upon medical verification.

65. Mr. Picklesimer understood the requirements of

continuing on the special assignment. He reiterated his intention

to return to his job duties as the Training School Specialist on

November 1, 1989. He, also, stated that he knew a doctor would

not say he could not return to his regular job assignment.

66. Mr. Picklesimer never submitted any medical

documentation except what is attached as Exhibits 13 and 14.

67. Although not classifiable as a grievance, Mr.

Picklesimer complained to my supervisor, Rex Yates, about my

failure to adequately check his work on the Juvenile R.C. before

a records review on June 5, 1987.

68. I indicated that I had reviewed some of Mr.

Picklesimer’s cases for the June 5, 1987 records review when they

had in fact not been reviewed. (Exhibit 18)

69. I indicated Mr. Picklesimer had met Minimum

Standards of service on these cases without conducting a proper

records review to determine if Mr. Picklesimer had in fact

provided acceptable service and met Minimum Standards.

70. If a proper check had occurred it would have

actually revealed yet another failure by Mr. Picklesimer to meet

Minimum Standards or adequately document his efforts.

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res a

13a

71. Mr. Picklesimer did not suffer any adverse

consequences from my failure to adequately review his work

before the June 5, 1987 records review. In fact, my failure to

catch Mr. Picklesimer’s failings only enhanced his rating at the

June 5, 1987 records review.

72. I was counseled by my supervisor Rex Yates to

review every case file before indicating my subordinate was

adequately performing.

73. I did not suffer any adverse job consequences for

my failure to point out Mr. Picklesimer’s inadequacies on the June

5, 1987 records review.

74. Mr. Picklesimer did not suffer any adverse job

consequences for reporting to Mr. Yates that I had not adequately

checked his work on the juvenile R.C. case before the June 5,

1987 records review.

75. That my dealings with Mr. Picklesimer were in my

representative capacity as his supervisor.

76. That I never engaged in a course of conduct or

even an isolated individual act with the purpose of causing Mr.

Picklesimer emotional distress.

77. My comments to and appraisals of Mr. Picklesimer

were directly related to his performance as a Court Counselor.

78. When Mr. Picklesimer performed well, I praised

him. When he failed to meet Minimum Standards of service, to the

juvenile population we serve, I noted his failings in a constructive,

interactive manner.

79. My suggestions for improvement and my dismay

at Mr. Picklesimer’s defiance of court orders, by dropping children

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from supervision and failing to provide court ordered service, was

always delivered to him in a professional manner.

80. Mr. Picklesimer was eligible for merit increases on

five occasions. I rated him on all of those reviews. |

recommended him for an increase on January 1, 1977, January 1,

1978, January 1, 1979, January 1, 1980, and February 1, 1981.

My evaluation of Mr. Picklesimer’s work was always fair.

81. Mr. Picklesimer did not dispute my ratings or ever

accuse me of causing him emotional distress or acting towards him

in other than a professional manner.

82. Mr. Picklesimer’s only grievances were as detailed

in paragraph number 38 through paragraph 66.

83. I do not think my fair minded appraisal of Mr.

Picklesimer caused his heart problems.

84. Mr. Picklesimer’s heart problems were caused by

his consistently poor dietary habits.

85. Mr. Picklesimer indicated, to me, that the reason

he was required to undergo heart surgery was because of his

cholesterol problems, brought on by his inappropriate diet.

86. Mr. Picklesimer’s heart problems pre-existed any

purported problem with me. His evaluation from December 13,

1976 noted that he "has recently had what the doctor terms a mild

heart attack and has had to be hospitalized twice for this condition

which was previously unknown."

87. To my knowledge Mr. Picklesimer never received

any psychological treatment. His only prolonged absence from

work was when he was recovering from surgery.

88. As stated under paragraphs 18 through 20 above,

Mr. Picklesimer’s changes in duty assignments (e.g. Court

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Counselor to Training School Specialist) were at the impetus of,

or approval of my supervisor.

89. Mr. Picklesimer’s duty assignments were not

unduly heavy and were entirely appropriate for a Court Counselor

of his experience and length of service.

90. Mr. Picklesimer was accommodated with light duty

assignments as long as a physician certified the need for continued

light duty. From September 5, 1989 to October 31, 1989, Mr.

Picklesimer basically did nothing more than coordinate a one-day

presentation to the District Twenty-five staff.

91. Mr. Picklesimer was treated fairly by me. I acted

towards him in a professional manner. My dealings with him

were as his direct or second level supervisor. My attempts were

always aimed at trying to have Mr. Picklesimer deliver an

acceptable level of service to the children whose lives were

touched by Juvenile Service’s supervision.

Further, affiant sayeth not.

S/

Lee N. Cox

Subscribed and sworn to before me

this the 23rd_ day of _May_, 1994.

S/___Nancy C. Storie

(Notary Public)

My commission expires: __ April 12, 1999

(Notary Seal)