# Opposition Brief — Picklesimer v. Cox

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 822

## Text

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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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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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1505%3A2. Public record. Not legal advice.