Luman challenges termination
A fight in the Mono County workplace on Oct. 3, 2011 led to the termination of two public works employees and a three-month suspension without pay for a third. Some County employees are pointing to this incident as a demonstration of problems within County management. Problems that have been described by some as “management through intimidation.”
Dick Luman and Brett McCurry were terminated following the Oct. 3 incident. Jim Kerby was put on suspension.
This week, the Mono County Personnel Appeals Board, made up of Tim Hansen, Ken Goode and Ralph Obenberger, heard an appeal of Luman’s termination.
Luman served as a Mechanic for Mono County for more than 15 years. On the morning of Oct. 3, he joined his co-worker Jim Kerby in their supervisor’s office. Kerby had asked Luman to join him as a witness to what he was going to report to Fleet Services Supervisor Jerry Vande Brake.
The week prior to Oct. 3, tensions between Kerby and Road Operations Supervisor Brett McCurry had come to a head. According to McCurry, who took the stand on Wednesday, Kerby felt that McCurry made him look bad in front Public Works Assistant Director Jeff Walters regarding an issue over a Kubota tractor.
According to McCurry, Kerby was one of a handful of employees who took issue with the fact that McCurry served as both a union representative as well as a supervisor.
“Jim was one who had issue with this,” McCurry stated while under oath. “He gave me a lot of dirty looks and blank stares.”
McCurry went on to say that Luman had been displeased with the union contract recently negotiated with the County.
“He thought the union should have worked harder to get a better contract,” McCurry explained.
Throughout the County’s questioning of McCurry on Wednesday, it became apparent that Kerby had often complained that McCurry was harassing and threatening him in the workplace.
The day following the Kubota incident, McCurry said he asked Kerby what was wrong because he sensed Kerby was bothered by something. Kerby stated his concern about being made to look bad.
“I told him that I had just been offering suggestions,” McCurry testified.
The discussion then became heated and McCurry claimed that Kerby told him to “get the f*** out of my shop.”
This was the situation that Kerby planned to discuss with Vande Brake on Oct. 3.
It also became apparent during testimony on Wednesday and Thursday that besides asking Luman to be his witness, Kerby had also told him that McCurry was calling him a motherf***er behind his back.
Shortly after Kerby and Luman began talking with Vande Brake on Oct. 3, McCurry also showed up at Vande Brake’s office. Vande Brake said he waved him into the room in an effort to air the disagreement out and bring it to closure.
According to McCurry and Vande Brake, McCurry stood in the doorway of Vande Brake’s small office to listen.
The question of whether or not he had been calling Luman a motherf***er was raised. McCurry said he had not been calling Luman that and if he had he would have said it to his face.
Luman then allegedly said “If you had the balls to do that you might find yourself falling down the stairs again,” in reference to an accident McCurry had a month earlier when he fell down the stairs at his home.
According to McCurry, he told Luman that he took that as a threat. He then testified that Luman walked toward him, grabbed him by the shirt and pushed him out of the office into a bookcase, and that was when the fight began.
Vande Brake agreed that he took what Luman had said as a threat, but testified he did not see who touched whom first and was unsure who started the fight.
Either way, according to testimony from Walters on Thursday, both men were at fault for violating the County’s zero tolerance for workplace violence policy. After interviewing the parties involved, Walters believed neither was acting in self-defense and neither was a victim in the situation. Both McCurry and Luman were equally accountable which is why they were both terminated, according to Walters.
As for Kerby, he was put on suspension because of holes in his story when he was interviewed following the incident, according to Walters. Kerby’s credibility became damaged when he claimed McCurry had bumped Kerby’s chest with his own. Neither McCurry nor Vande Brake had alluded to this happening when they were questioned following the incident.
Kerby also seemed to have trouble understanding and answering the questions posed to him during the investigation, according to Walters, which led him to question whether or not Kerby was telling the truth.
Katie Maloney Bellomo, legal counsel for Luman worked on highlighting the friendship between McCurry and Vande Brake. She also directly asked Vande Brake if he liked Luman to which Vande Brake responded, “no,” but added that they had learned to work together.
Bellomo was expected to further present her case in the coming days.
At press time, McCurry, Vande Brake, and Walters had all taken the stand and given testimony. The hearing was expected to proceed through Friday, April 6, and potentially into Monday, April 9. Jim Kerby’s hearing was scheduled to begin on April 9, but was expected to be postponed until April 11 if Luman’s had not been completed prior to closure of business on Monday.
McCurry will also have an appeals hearing but it is not scheduled until June.
Initially Luman’s hearing was only anticipated to last for two days, but several procedural and housekeeping issues delayed things. The entire morning of April 4 was spent discussing whether or not materials that had not been made available at the Skelly hearing could be introduced at the Appeals Board Hearing. Ultimately the Board decided 2-1 to not allow any new materials or evidence to be introduced.
According to Mono County Counsel Stacey Simon, the appeals board hearing is part of the County’s due process for an employee post-termination. Prior to termination, the employee is allowed a Skelly hearing, which is the County’s due process for an employee prior to termination. If the employee is still dissatisfied following the outcome of the appeals board hearing, he or she would then appeal their case to a court of law.
Also on the morning of April 4, John-Carl Vallejo, County Counsel representing the County in the hearing, stirred the pot by objecting to Hansen’s inclusion on the Appeals Board.
“The County needs a fair hearing too,” Vallejo stated. He asked that Hansen recuse himself from the Board because he is friends not only with Luman, but also Kerby as well as Bellomo, who will also represent Kerby. *Note: An earlier version of this story stated that Vallejo also wanted Hansen to recuse himself because he was a Mono County Supervisor. In fact, Vallejo stated that he was more hesitant to make the objection because Hansen is a supervisor.
Vallejo also stated that Hansen had been speaking ill of CAO Jim Arkens in public, adding to what Vallejo believed was a bias on Hansen’s part since Arkens was involved in the disciplinary action among the men.
“Your accusations are irrelevant,” Hansen said. “You are acting as a poor loser because things aren’t going your way. I’ve known Dick a long time but that doesn’t mean I can’t be impartial. Arkens is not even connected to this. This is out of hand. I don’t intend to step down but I will let my fellow board members make the call.”
Following a closed-door discussion, Obenberger and Goode stated that they felt Hansen could be fair and wanted to keep him on the Board.
Luman was expected to take the stand either late Thursday afternoon or Friday to give his side of the story, which he told The Sheet “would be eye-opening.” Read about his testimony here at www.thesheetnews.com.
