Michael Vanderburg was a promising, highly motivated new employee at the N.C. Department of Revenue with positive performance reviews. Just short of being at his job for two years, and thus obtaining career civil service job protection, Vanderburg was fired for what he contends was religious discrimination.

In a ruling March 1, the N.C. Court of Appeals ruled that state law protects even new state workers such as Vanderburg against religious and other forms of discrimination and upheld a lower court in ordering him rehired.

Vanderburg was hired in January 1999 and his first supervisors were pleased with his work. Sooner thereafter he obtained departmental permission to also work as an associate pastor at a local church. In July, Vanderburg transferred to a different division in the Charlotte office.

Within weeks, his new supervisor and the division’s office manager told him to remove religious matter from his cubicle, something other employees were not required to do. His boss also said he was uncomfortable with Vanderburg’s position as a pastor.

After his supervisors learned that he was considering writing a letter to the department‘s assistant secretary about the matter, the situation went from bad to worse. By August, Vanderburg was assigned a heavier-than-usual workload.

He was also denied an annual raise. Despite transferring to the Gastonia office and getting excellent performance reviews there, Vanderburg was fired in October 2000.
An administrative law judge sided with Vanderburg when he challenged the dismissal, finding the NCDOR’s stated rationale of low performance by Vanderburg “not worthy of belief.” The state Personnel Commission and a Superior Court judge affirmed the ruling. The NCDOR then brought the case before the Court of Appeals.

In its ruling, the appeals court expressly rejected the NCDOR’s argument that as a probationary employee, Vanderburg had no recourse to appeal his dismissal before the state Personnel Commission.

“While N.C. Gen. Stat. § 126-5(c)(1) provides that Chapter 126 does not apply to non-career State employees, we find the language of N.C. Gen. Stat. § 126-36(a) to be directly on point to Vanderburg’s claim” Judge John Tyson said for the court.

“N.C. Gen. Stat. § 126-36 specifically allows ’[a]ny State employee or former State employee’ to appeal claims alleging discrimination to the Commission. A statute that is clear and unambiguous must be construed using its plain meaning.” (emphasis in decision.)

The court also found that Vanderburg was fired based upon his religious beliefs and but for which he would never have lost his job.

The case is Vanderburg v. N.C. Dep’t of Revenue, (04-554).
http://www.aoc.state.nc.us/www/public/coa/opinions/2005/040554-1.htm

Lowrey is associate editor of Carolina Journal.