Employee Dismissal Hearing Allows No Defense Witnesses - TribPapers

Employee Dismissal Hearing Allows No Defense Witnesses

The hearing for five City of Asheville employees was via Zoom. Screen capture.

Asheville – A City of Asheville Civil Service Grievance Committee hearing has upheld the city’s firing of five people over not adhering to the city’s COVID-19 policy. This was after a two-day hearing last week where the former employees’ lawyer was not allowed to present a defense but merely allowed to cross-examine the city’s only two witnesses.

First witness

City of Asheville Attorney John Maddux started the hearing by taking testimony from Stacey Saunders, Buncombe County’s Public Health Director. She testified to what the COVID virus is, the city’s steps it took to protect their employees from it and the protection vaccines give along with an exhibit that stated 92% of COVID infected individuals were not vaccinated. The plaintiffs’ lawyer, Lakota Denton, did not object to that being allowed into evidence.

On cross-examination, Denton pointed out Saunders did not present any data, only an opinion regarding vaccines preventing the spread of COVID-19, and that all employees had to get a COVID shot unless exempted. Asked who else should not take the vaccine besides children under five, Saunders said those who ask their medical providers’ advice and are told not to get the vaccine. Denton asked if that should not include everyone? “A person should ask their provider,” she said.

Denton tried to discredit whether employers are trustworthy sources for medical advice. His questions were objected to by Maddux. He did get Saunders to finally say that the individual is the ultimate authority to decide whether or not to get the vaccine. During the hearing Chairperson Campbell Shatley would not let Saunders answer Denton’s question: if every single employee should get the vaccine but did admit an individual and their doctor should make that determination.

Denton then questioned shouldn’t the city position then not only get the vaccine but “make sure to check with your doctor?” He also pushed Saunders on the point that the city should inform recipients of all ingredients in the vaccine, all the risks associated with the vaccine, along with the chances of death from COVID for the employee’s age group before the city could actually obtain informed consent from the employee.

Denton spent a great deal of time on whether the vaccine was safe and what the side effects and risks of the vaccine might be compelling Maddux to object, forcing Shatley to consult with legal counsel before ruling the question as not relevant. Saunders said it was not her duty to explore side-effects inciting Denton to ask if she was recommending all employees to get the vaccine without knowing the side effects?

He then questioned Saunders about the data she was using that the vaccines reduce the spread of COVID. She admitted that she had brought no data to the hearing. Shatley continued to sustain Maddux’s objections to various questions of Denton. When questioned by Denton about one of her objections, Shatley told Denton she had been a trial judge for years.

Along with side effects, Denton questioned Saunders about natural immunity. He asked her the risk percentage of people dying from COVID and how many vaccinated people had still been infected by COVID. Saunders did not know the percentage of people that had passed but said about 20% of vaccinated individuals still had gotten COVID. Asked if the PCR test used by the county to determine if an employee had COVID was FDA approved, Saunders did not know.

Denton asked Saunders if she knew that on the Vaccine Adverse Event Reporting System (VAERS), there were over 20,000 vaccine-related deaths and over a million vaccine injuries. Maddux objected as asked and answered and Shatley sustained. Denton ended his cross of Saunders and Maddux asked if he had any redirect for the witness. “No, I think Mr. Denton took up enough of Saunders’ time,” he said.

Second witness

After lunch, Maddux began questioning Shannon Barrett, Asheville Human Resources Director, asking her to identify the letter of termination to the employees for several different policy violations, which she did. He asked her to cite any other policies of the city the plaintiffs might have violated. She said they also violated the city’s code of conduct and ethics policies.

In the ethics policy, he cited a section that includes horseplay, sexual activity and insubordination. Additionally, in a section of the city’s personnel policy which covers inappropriate personal conduct saying the employees were fired in part for violating these sections.

In his cross-examination of Barrett, Denton repeatedly asked for data to support the city’s COVID vaccine and testing policy. Barrett could offer none. Asked if the policy’s purpose was to reduce the spread of COVID, why were not all employees tested every week? Barrett said it wasn’t feasible, so it was limited to non-vaccinated employees even though Barrett admitted that vaccinated employees could catch and spread COVID-19 if they were asymptomatic. Barrett was asked how effective was the policy in preventing the spread of COVID. She said she had no hard data to show that. Asked by Denton if the city had asked employees to self-report when they contracted COVID if the city could have seen how effective the policy was in preventing the spread of the virus, Barrett said, “We could.” So you have no data to prove that this policy worked. “If you are asking if we document every single employee that contracted COVID, we did not.” And in turn, you are not about to tell us if this policy prevented COVID at all,” asked Denton? “What I can tell you anecdotally, what we’ve seen from the numbers we do have…we have seen a steady amount [of cases] and then a decrease,” Barrett admitted that she could not speak to how effective the policy had been.

At one point, Denton asked Barrett who was more likely to spread COVID: a vaccinated worker who goes out and attends concerts and restaurants all weekend or an unvaccinated worker who has natural immunity? Maddux objected to the line of questioning to which Shatley sustained the objection. Asked to state the basis of the objection, Maddux said it was sustained and he was not going to explain it. Denton said he just needed to know where he made a mistake in asking his question. Shatley said that Barret was not a medical expert but a human resources person. Denton pointed out that she just testified a vaccinated person was less likely to spread COVID. “…She opened the door” to that line of questioning, Denton explained. Shatley said, “and the objection is sustained,” forcing Denton to move on to other questions.

Asked if she was familiar with the Biden/OHSA mandate that companies with more than 100 employees get vaccinated or tested weekly was found unconstitutional, Barrett said yes, but that the city is limited in resources and they were trying to “put in place the best policies with the least negative impact and to strike a balance.”

No witnesses allowed for defense

After the cross of Barrett ended, the board voted to go into a closed session for about 30 minutes. Once they came out, the board voted unanimously to dismiss the employees’ complaints. Asked by Denton to cite the part of the grievance ordinance which allowed the board to decide the case before hearing from witnesses for the plaintiffs, Shatley and her legal council said the board didn’t have to hear from those witnesses but only determine if the city had proven its burden of proof and if the plaintiffs wanted to appeal to superior court, they could. Denton was afraid the superior court would send this back to the grievance board because the plaintiffs presented no evidence. Shatley noted his concern but did not allow any further testimony.

Editor’s Note: Read related commentary on page 11.

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