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IN THE COURT OF COMMON PLEAS FOR THE FOURTEENTH JUDICIAL CIRCUIT Case No.: 2013-CP-07- 1637 AMENDED COMPLAINT (JURY TRIAL DEMANDED)
The Plaintiff, Bryan Norberg, complaining of the Defendant, Town of Bluffton, alleges as follows: JURISDICTION AND VENUE
1.
Carolina.
2.
Manager form of government pursuant to S.C. Code 5-13-10 et seq. in the County of Beaufort.
3.
All actions pertinent to the allegations in this Complaint took place in Beaufort
County.
4.
5.
In his capacity as Lieutenant, Plaintiff worked closely with the former Police
7.
For most of Plaintiffs tenure with Defendant, David McAllister was Defendants
Police Chief.
8.
Under the Council-Manager form of government, the Town Manager is the chief
executive officer and is responsible for the hiring and firing of all Town employees.
9.
The Town Manager can also discipline Town employees, including employees of
Defendants Police Chief is an agent of Defendant. Defendants Police Chief and Town Manager are responsible for the internal
an extramarital affair McAllister was having at the time. Specifically, when Chief McAllister was supposed to be working in the office but was with his girlfriend, if Chief McAllisters wife called the office, Plaintiff was required to immediately contact the Chief and stall for time with the wife.
13.
Chief McAllisters requirement that Plaintiff, as part of his job duties, protect the
secrecy of Chief McAllisters extra-marital affair interfered with Plaintiffs job duties.
14.
Once, when Plaintiff could not reach Chief McAllister regarding a work situation
he had to instead contact another employee, Lieutenant Angel Tubbs, who then became aware that the Chief was inaccessible to solve work issues because he was with this girlfriend.
15.
Shortly after Plaintiff had to contact Lieutenant Tubbs to resolve this work
situation due to the Chiefs absence, Chief McAllister became angry with Plaintiff and accused Plaintiff of telling Lieutenant Tubbs about Chief McAllisters affair.
16.
McAllister angrily yelled at Plaintiff and told him, from now on, I will treat you
differently and other employees will notice. Chief McAllister then shunned Plaintiff for over three (3) months and often told Plaintiff that Plaintiff had betrayed his trust by telling the truth about his affair to Tubbs and Plaintiff needed to try harder to remedy the situation.
17.
covering for the Chiefs extra-marital affair was a condition of him retaining his job and that he would lose his job if he ever refused to cover for the Chief, or to follow the Chiefs orders, even he believed such orders were unethical or illegal.
18.
Between December 2010 and March 2011, Plaintiff noticed that Chief McAllister
was allowing his girlfriend, who was the Executive Director of the Palmetto Animal League, to keep stray dogs in the Towns holding cells overnight.
19.
Plaintiff and other police officers became aware that holding cells meant for
humans and required to be maintained at certain standards pursuant to the Commission on Accreditation of Law Enforcement Agencies (CALEA) accreditation requirements, were being used by Chief McAllister to house dogs so his girlfriend did not have to be woken in the middle of the night to care for these dogs.
20.
were intended for use by persons not dogs. There is also a state statute (S.C. Code 41-3-40) that prohibits the release of stray dogs that have been picked up until proof has been provided that the dogs are currently inoculated against rabies.
21.
Plaintiff knew it was wrong for the Police Department to house, and also to
release to the Chiefs girlfriend, stray dogs which may not have been be inoculated against rabies.
22.
Plaintiff questioned the Town Manager as to whether it was appropriate for the
Chief to give a federally subsidized bullet proof vest to a friend of his who ran a restaurant called the Squat n Gobble.
23.
The Town Manager told Plaintiff he had given the Chief permission to give the
vest away. Then, a week later, Chief McAllister told Plaintiff the vest was left over from his old police department in Delaware and it was no good.
24.
Plaintiff knew if the bullet proof vest was really from the Delaware police
department as McAllister told him, that the Town Manager would not have needed to give McAllister permission to give the vest away, so Plaintiff felt after this incident that the Town Manager was likely willing to say anything to protect McAllister, whether he knew the facts or not.
25.
During this time, Plaintiff witnessed Chief McAllister and his girlfriend walking
around the police department together and selecting furniture to be sent to and used at her place of business, the Palmetto Animal League.
26.
Plaintiff was concerned that Chief McAllister was giving Town property to his
girlfriend for her personal use at her business as Plaintiff knew that as public employees, the State Ethics Act applied to them and that its provisions (S.C. Code 8-13-700) prohibited Chief McAllister from using his position as police chief to obtain an economic interest for himself or an individual with whom he was associated.
27.
Plaintiff became concerned that Chief McAllisters conduct with his girlfriend
violated the State Ethics Act and could create civil and criminal liability and penalties for the Department and for him if he remained silent.
28.
As Chief McAllister continued to shun and avoid Plaintiff, Plaintiff was also
Plaintiff reported his concerns about the Chiefs actions on behalf of the girlfriend
to Defendants Town Attorney. Defendants Town Attorney provided no assistance and instead told Plaintiff, I cant believe thisDave is my friend.
30.
Upon information and belief, Defendants Town Attorney took no action at all to
investigate or remedy Plaintiffs complaints about the possible state ethics violations by Chief McAllister.
31.
After it was clear to Plaintiff that Defendants Town Attorney was going to ignore
Plaintiffs concerns, Plaintiff reported his concerns to Defendants Human Resources Manager, Jesse Hershey, who instructed Plaintiff to talk to Defendants Town Manager, Anthony Barrett.
32.
Plaintiff met with Defendants Town Manager on March 24, 2011, reported his
concerns about Chief McAllisters actions. Plaintiff told the Town Manager he was fearful the Chief was going to fire him.
33.
reported by Plaintiff and instead simply asked, What do you want me to do about it and then told Plaintiff he would look into it.
34.
Plaintiff knew at the time that the Town Manager and Chief McAllister were
personal friends and that it was unlikely that the Town Manager would take Plaintiffs complaints seriously.
35.
About a week later, on April 1, 2011, Plaintiff was called into a meeting with
Defendants Town Manager told Plaintiff that Plaintiff misunderstood what was
going on and then gave Plaintiff a written warning for going outside the chain of command by reporting his concerns to Defendants Town Attorney, Defendants Human Resources Manager, and Town Manager, instead of directly to Chief McAllister.
37.
During the meeting, Defendants Town Manager presented Plaintiff with a pre-
typed agreement and told Plaintiff that he was required to sign this pre-typed agreement as a condition of his continued employment.
38.
Plaintiff was personally and professionally satisfied that my concerns have been fully addressed and resolved to my complete satisfaction and that Chief McAllister has always been willing to hear my concerns.
39.
The pre-typed agreement required that Plaintiff agree to always give the Chief,
my superior officer, the right and courtesy to hear my concerns before going outside of the Department.
40.
Plaintiff understood during this meeting that that he was being punished for
reporting the Chiefs wrongful acts, that his written warning was being placed in his personnel file, and that, thereafter, if he wanted to retain his job he could not report anything about the Chiefs conduct to anyone other than the Chief.
41.
about to lose his job and Plaintiff understood after this meeting that to keep his job he could no longer talk about any of the Chiefs actions.
42.
It was very clear to Plaintiff during and after this meeting that the Town Manager
was protecting Chief McAllister and he was being required to do so also if he wanted to keep his job.
43.
Plaintiff understood from the words and actions of Defendants Town Manager
that a condition of his continued employment was that he remain silent regarding any knowledge of Defendants past or current illegal practices and wrongful acts, as well as any illegal practices and wrongful acts committed by Chief McAllister in the future.
44.
Only one (1) week after this meeting when Plaintiff was required to sign the
agreement with the false statements in it by the Town Manager, one of Defendants other employees called Plaintiff when he was out of Town and reported to him that Chief McAllister had angrily pushed him during a meeting, causing him to fall back against a wall.
45.
This employee felt like he had been assaulted by the Chief but was afraid to
complain.
46.
Plaintiff had personally experienced the Chiefs verbal abuse through the Chiefs
Additionally, once when the Chief did not like Plaintiff complaining about
another employee, the Chief had taken Plaintiff out behind the office and screamed at him to " fix the problem" three times and then slammed his fist on the hood of a patrol vehicle
Plaintiff had heard from other officers that the Chief had gotten in a bar fight over
a woman and had to be taken out of the bar by officers and that he had thrown a brick through a suspects window so he could arrest the suspect when he came out of the house because he did not have a warrant.
49.
Plaintiff believed the employees version of the pushing incident but he then
learned that Chief McAllister was disputing the pushing incident even occurred.
50.
Defendants Town Attorney (who had previously told Plaintiff that Chief
McAllister was a friend of his and he did not believe Plaintiffs reports of misconduct regarding the Chief) interviewed Plaintiff regarding the pushing incident.
51.
Prior to this interview, Plaintiff knew the Town Attorney had lied to employees
regarding the confidentiality of statements given to him during an internal Police Department investigation. Specifically, despite the Town Attorneys repeated assurances to employees that he would maintain the confidentiality of their statements about Chief McAllister, Plaintiff knew the Town Attorney had given the confidential statements to Chief McAllister to review and also that Chief McAllister had started retaliating against some of the employees who had made statements to the Town Attorney against him.
52.
Plaintiff had ample reason not to trust Defendants Town Attorney based on his
Plaintiff understood from the recent meeting with Chief McAllister and the Town
Manager, from the language in the agreement he had been forced to sign, and from his past dealings with the Town Attorney that if he confirmed he had a conversation with the pushed employee, it would make Chief McAllister look bad, which Plaintiff knew he was not allowed to do.
54.
Further, Plaintiff understood from the recent meeting with Chief McAllister and
the Town Manager and the agreement he had signed, that if he reported anything about the Chief to anyone, including the Town Attorney, who was a friend of the Chiefs, he would be going outside the chain of command and he would be terminated.
55.
Plaintiff believed, based on what he had been told by the Town Manager and
Chief McAllister that he had to deny the pushed employee had called him which would support the Chiefs story that the pushing incident never happened.
56.
S.C. Code 16-9-370 makes it a criminal offense for anyone to accept a reward
S.C. Code 8-13-705 makes it a violation of the law to offer a public employee
anything of value with the intent to influence the discharge of their official responsibilities.
58.
S.C. Code 8-13-100 ((1) (a) (xiii) defines anything of value to include a promise
of employment.
59.
Morale at the Department became very poor as the officers knew the Town
After a few months, the Town Manager called a meeting of the entire police
department and stated that Chief McAllister was not having an affair and that he was not going to fire Chief McAllister.
62.
Plaintiff knew the Town Managers statements at the meeting were false and he
also knew the Town Manager knew or should have known the truth about McAllisters affair, McAllisters improper disposal of public property, and McAllisters assault and battery of an officer.
63.
Plaintiff became aware that the Town Manager was denying that he ever made
any derogatory or threatening statements to the employee who was pushed by Chief McAllister when, in fact, the Town Managers derogatory and threatening statements had been recorded by
The Town Mangers continued actions to protect Chief McAllister at all costs
reflected a culture of dishonesty and lying in Defendants workplace and served to remind Plaintiff he was required to remain silent about what he knew about Chief McAllisters affair, his disposal of public property, and his assault and battery of an officer.
65.
outside attorney was hired to represent Defendant and he contacted Plaintiff and told him his deposition was going to be taken in the case.
66.
Plaintiff knew his deposition testimony would be under oath, and he called the
outside attorney and told him that he had been required to remain silent about what he knew about the pushing incident by the Town Manager and Chief McAllister in order to keep his job.
67.
When the Town Manger found out that Plaintiff was going to be deposed and
would report all of the things he had been prohibited from reporting, the Town Manger terminated Plaintiffs employment on May 7, 2013 on the pretext that Plaintiff had lied to Defendants Town Attorney during the internal investigation of the pushing incident when he had denied receiving a phone call from the pushed employee.
68.
In fact, though Plaintiff had been instructed by the Town Manager to remain silent
about Chief McAllisters actions to retain his job, now he was being terminated by the same Town Manager for remaining silent as he had been required.
69.
Plaintiff suffered extreme stress from being required to remain silent and lie about
Defendants illegal practices and wrongful acts in order to retain his job. FOR A FIRST CAUSE OF ACTION WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY
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70.
Plaintiff hereby repeats and realleges each and every allegation contained in the
Plaintiff knew Defendants actions violated several state laws. Plaintiff believed he could face civil and criminal liability as an accessory, co-
acts, but was required to remain silent about and acquiesce to Defendants illegal practices as a condition of keeping his job.
74.
Further, Plaintiff was disciplined for reporting his concerns and required to sign
an agreement stating that he would never report concerns about Chief McAllister with anyone else unless the Chief had already had a chance to resolve or explain Plaintiffs concerns.
75.
Plaintiff understood that he was required to cover for Chief McAllisters illegal
agreeing to turn his head and remain silent about acts that violated state law.
77.
Defendants requirement that Plaintiff cover for Chief McAllisters illegal acts.
78.
Plaintiffs continued employment was conditioned upon him acquiescing to violations of state law and exposing himself to possible liability.
79.
Plaintiff seeks actual and punitive damages, prejudgment and post judgment
interest, attorneys fees and costs resulting from his wrongful termination. FOR A SECOND CAUSE OF ACTION EQUITABLE ESTOPPEL
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80.
Defendants agents, acting within the scope of their authority, engaged in conduct
that amounted to false representations, concealment of material facts, and said conduct was calculated to convey false and inconsistent information to Plaintiff.
81.
Defendant had knowledge of the true facts regarding Chief McAllisters actions
Plaintiff lacked knowledge of the true facts and lacked the means of acquiring
knowledge of the true facts because he was required to remain silent and not challenge anything that Chief McAllister did and to protect McAllister from criticism.
83.
Plaintiff has been damaged as a result of Defendants conduct and seeks legal and
Plaintiff requests legal and equitable damages for Defendants acts and further
seeks legal fees, costs of this action and post judgment interest. WHEREFORE, Plaintiff respectfully requests this Court grant Plaintiff the damages requested herein, attorney fees pursuant to S.C. Code 15-77-300, as well as such other relief the Court deems appropriate.
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Nancy Bloodgood, SC Bar No.: 6459 Lucy C. Sanders, SC Bar No.: 78169 895 Island Park Drive, Suite 202 Daniel Island, SC 29492 Telephone: (843) 972-0313 Facsimile: (888) 519-0934 Email: nbloodgood@fosterfoster.com lsanders@fosterfoster.com Attorneys for Plaintiff Charleston, South Carolina Date:
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