The civil-justice system has its own grinding, seesaw pace, as Buncombe resident Melanie Pitrolo has discovered. In the space of four years, she has lost her case, won an appeal and prevailed before a jury — only to lose again when the judge overruled. She has filed her second and final appeal in the case, which started in 2005.
Four years ago, she initiated a discrimination complaint alleging that the Western North Carolina Regional Air Quality Agency, its board members and Buncombe County officials violated Title VII of the Civil Rights Act in 2005 by illegally considering her gender in the process of picking an interim director upon then-director Bob Camby's retirement.
Despite being recommended for the job by both Camby and then-board chair Bill Church, Pitrolo was passed over for David Brigman, who was the agency's enforcement supervisor at the time. Brigman, she argues, had no college degree, less regional- and state-level experience, and fewer responsibilities at the agency. Another key point in the case is Pitrolo's claim that Camby, soon after announcing his retirement and nominating her as interim director in May 2005, told her she faced opposition due to her age and gender, and that an influential business group with three of its constituents on the five-member board — the Council of Independent Business Owners — was concerned that the then-33-year-old engineer would too strictly enforce local, state and federal air-quality regulations.
Pitrolo quit the agency and filed her grievance soon after Brigman was picked as interim director on June 2, 2005, because she "couldn't think of any other reason, other than gender," why she didn't get the job.
The rulings in the case have been mixed: In 2007, U.S. District Court Judge Lacy Thornburg dismissed it, agreeing with the defendants' position that no discrimination had occurred and that Camby's remarks were inadmissible hearsay, in part because he testified he couldn't remember mentioning possible gender discrimination or even using the word "female" when he told Pitrolo she faced opposition. But later that year, the U.S. Fourth District Appeals Court disagreed with Thornburg, stating that Camby's alleged remarks were indeed "clear evidence" and admissible. The court ordered the judge to let the case go to trial. In July 2009, a jury of five women and three men determined that gender was a factor in the hiring decision but that the board would have hired Brigman in any case. The jury awarded no damages.
Thornburg overturned the jury decision in August for largely the same reasons he gave in 2007. This time, he added an extra twist that was requested by the defendants: Pitrolo should pay their legal costs.
After pondering her options for a month, Pitrolo decided to appeal Thornburg's latest decision, convinced that the appeals court in Richmond, Va., will uphold the jury's finding and that he will again be overruled.
"If no one had ever fought discrimination," Pitrolo responds when asked why she's pressing forward, "then women would still not be allowed to go to engineering school, or become lawyers or doctors or [enter] other professions that were historically male-dominated."
The appeals court, Pitrolo explains, determined that it was up to a jury, not a judge, to determine the validity of Camby's remarks and weigh them against the claims of board members like Vonna Cloninger, who argued that Pitrolo was passed over because she displayed a lack of maturity and because Brigman had more experience at the agency (despite Pitrolo's five prior years at two different state air-quality agencies, which gave her a total of 10 years in the field). The appeals-court judges found Camby's alleged "opposition" remarks valid and relevant, in light of his position as her supervisor and because he served on an ad-hoc committee formed to review applicants for the job.
It was also the jury's job, not Thornburg's, to consider Camby's testimony expressing disbelief that gender discrimination could have occurred when a woman, Cloninger, served on the board and another woman who played a part in the board's choice was Buncombe County Manager Wanda Greene.
"Women can discriminate against other women," Pitrolo insists. Just the same, she's still not entirely sure what happened in the month between Camby's retirement announcement and the board's selection of Brigman.
The defendants, including then-board members Cloninger, Britt Lovin, Loyd Kirk and Dean Kahl, are mum. "I can't talk about [the Pitrolo case] because we're still in the middle of it," said Cloninger when Xpress called in late August. And calls to Camby, who is long retired, went unanswered. Church — the only board member not named in the suit — told Xpress that his comments are all on the public record. So getting close to what happened requires taking a look at a mix of court documents and weighing recent comments from Pitrolo, her father and Mike Plemmons, director of CIBO.
The story that unfolds shows several overarching themes: a local air authority with a history of controversy, including a particularly contentious period in the late 1990s when a state audit was prompted by activist complaints about sloppy procedures and lax enforcement; an air-authority board that was subsequently dominated by Buncombe County appointees who were often CIBO members; an exchange of phone calls about the interim-director position, involving Pitrolo's father, CIBO Director Mike Plemmons and at least one board member; and a county manager who passed along undocumented complaints from former and current agency employees.
Says Pitrolo, "I live in this community. It's important to shine a light on how these things happen."
A short history lesson
Created in 1970, the WNC Regional Air Quality Agency enforces local, state and federal regulations pertaining to open burning, facility emissions, ozone monitoring and asbestos removal. It originally included Haywood County, but since Haywood pulled out in 2000, only Buncombe and the city of Asheville fall under its purview. Buncombe appoints three members to the agency board; Asheville appoints two. And Buncombe manages the agency's payroll, banks its fund balance of collected air-regulation fees and fines, and administers its personnel policy. Although it is an independent agency with a staff of about 12, in many ways it operates as a county department.
And it has, over the years, been a controversial entity.
By May 2005, the agency had undergone a five-year period of reform that had been spurred by heavy criticism and scrutiny the decade before — by local media, county officials, and watchdogs like Taxpayers for Accountable Government's co-founder, the late Arlis Queen. There had been allegations of mismanagement, including lax enforcement of air-quality regulations, good-old-boy favoritism and the practice of allowing employees unmonitored, full-time use of agency-owned vehicles. To cap the complaints, a 1999 audit by the North Carolina Department of Environment and Natural Resources' Division of Air Quality had documented the agency's poor record-keeping practices and called for an immediate end to its practice of pre-announced facility inspections.
Soon afterward, Camby took over. He had first worked at the agency in the early 1970s but then left for a long career at Carolina Power & Light (now Progress Energy). Camby came back to start working under his controversial predecessor Jim Cody in 1996.
In Camby's December 7, 2006, deposition for Pitrolo's case, he said of his clean-up efforts at the agency after Cody was forced out in 1999, "We just got all the staff together [and I told them], 'We're going to be doing everything according to the book, we're going to cross all the T's and dot all the I's, and we're going to do the necessary paperwork."
He hired Pitrolo in October 2000 as the agency's first female engineering supervisor. She had five years' experience at state-level air agencies in Virginia and North Carolina, and she had a master's degree in environmental engineering. Despite her qualifications, one male employee resigned at the time "mostly [because of] his inability to work for a woman," said Camby in that same deposition. She was hired, in part, to help bring the agency into compliance with the state's post-audit requirements, including an immediate switch to unannounced inspections and improved documentation for permit and fine decisions.
Camby also reorganized the agency, taking such actions as shifting employees around and downsizing Brigman's department to only two employees (including Brigman himself) after the supervisor's workload was reduced, partly due to Haywood County withdrawing from the authority in early 2000. Camby also implemented an outreach campaign, and Pitrolo was actively involved, speaking at schools and to business groups such as CIBO and participating in the development of a public-service video. "We had to start a turnaround and had to just rebuild our integrity and our reliability as a agency that was going to enforce the regulations," Camby continued in his deposition.
He also noted that staffers like Brigman were "part of the old regime," and so was another applicant for the interim-director job — Monitoring Supervisor Kevin Lance — but Camby said that he "worked things out" with them. (Camby gives no details other than vague concerns about Brigman's "performance," and he later mentions how the supervisor aptly worked in a variety of roles at the agency). Arguably part of the old regime himself, Camby had a practice of smoothing things over, whether in disagreements between staff or disputes with business leaders, according to such government watchdogs as Jerry Rice and former board chair Nelda Holder.
As early as 2001, Pitrolo recalls, Camby laid out the idea of preparing her to take over when he retired, and many board members and staffers, including Brigman, were aware of it, according to other depositions taken for the discrimination case. By 2004, Camby was actively discussing his retirement plans with Chairman Bill Church and was trying to get Pitrolo promoted to assistant director. But Greene "nixed" the promotion, arguing that it wasn't necessary, he said in deposition. By early 2005, Camby was negotiating an early-retirement package with county officials.
Then on May 2, Church formally announced Camby's retirement, effective June 30, 2005, and he recommended Pitrolo for the job of interim director, according to the minutes of that May meeting. Said Camby in deposition, the announcement "caught most of the board by surprise."
The "sticky" process begins
A few points found in that meeting's minutes stand out, in light of Pitrolo's complaint.
After announcing Camby's imminent retirement, Church also suggested board members initiate a national search for a new director, a process that could take months. Cloninger suggested creating an ad-hoc search committee.
Another recommendation came from Britt Lovin. Like Cloninger, he was both a CIBO member and a Buncombe appointee. He suggested the board "look at all options for an interim director, including outside options," the minutes continue. No further details of this suggestion are reported in the minutes.
After discussing what the search committee would do, Cloninger and Asheville appointee Dean Kahl, a professor at Warren Wilson College and not a CIBO member, volunteered to serve on it with Camby; they were charged with deciding "where to advertise, how to advertise [and with] review[ing] the guidelines of the city and county."
Soon afterward, Lovin called for an executive, nonpublic session to discuss personnel matters. No details of that part of the meeting are available, but Pitrolo recalls Camby telling her the next day or so that she faced opposition to becoming interim director because of her age and sex.
Upset about the news, she reported it to her staff and family, including her father, Ray Caudle. Unknown to her at the time, he made two calls about it before the month of May came to an end.
The phone calls
"Melanie didn't know I was doing that," says Caudle, now 79. Concerned about the possibility his daughter might get turned down for a job simply because she was female, and convinced that CIBO controlled the board, he called an old acquaintance, Betty Donoho. A long-time CIBO member, she had once successfully sued the air agency to get a percentage of its collected fines and fees paid to local schools rather than let it accumulate in a fund balance or go into a newly created trust fund for public-outreach projects. "I knew she was involved in a lot of things, and I just wanted to know why [anyone] would say something like that about Melanie," says Caudle, speaking to Xpress.
Donoho, in turn, suggested he call Mike Plemmons.
"We just shot the bull," says Caudle of his conversation with the CIBO director. Plemmons "said he'd be fighting mad too if someone was going to [discriminate against] his daughters," Pitrolo's father continues, speaking to Xpress. Caudle insists he made no threats and that "there weren't ever harsh words exchanged."
Plemmons remembers it a bit differently, saying Caudle "wasn't nice when he first called." He adds, "It was unusual. I've never received a phone call like that." Plemmons says he told Caudle his daughter shouldn't be discriminated against because she was a woman, "and I told him she had been before our [CIBO] issues committee, and she had done a great job." Plemmons says he also told Caudle he didn't have anything to do with who got hired as interim or permanent director.
But in the week or so leading up to the board's June 2 meeting, Plemmons called Cloninger, Camby and possibly Greene, according to the depositions reviewed by Xpress. Plemmons says he doesn't recollect the specifics of those conversations and mentions he was never called in to testify or give a deposition in the case. "That's been years ago," he says now.
By the time the air board met on June 2, those calls — including Caudle's — took on greater significance.
In the meantime, Cloninger had a few informal phone calls and meetings with Kahl to discuss the interim and permanent-director searches, she told lawyers when giving her Oct. 11, 2006, deposition in the case. She also claimed in deposition that Church and Camby had a vocal argument during one of those May search-committee discussions, which Church wasn't supposed to participate in (with three board members in attendance, his presence created a quorum, which requires public notice).
During that argument, Cloninger alleged another twist in the search process, corroborated by Camby: Church admitted he was interested in becoming agency director. She went on in her deposition to acknowledge Camby's first choice for the interim-director appointment was Pitrolo but that he was adamant that the board pick "anyone but Bill Church."
At another point in her deposition, Cloninger noted the phone call she received from Plemmons: "He made me believe [Caudle's call] was a threat."
Cloninger also reported speaking at least once via phone to County Manager Greene, who suggested that the board pick former County Planner Mike Bradley, as interim. Bradley, who had retired, had helped negotiate a complicated and potentially controversial change to the county's animal-control ordinance in 2000-2001. "I said, 'The recommendation has come to us of Melanie," Cloninger testified. Greene "put a definite halt to that" by alleging there had been complaints from other staff who "wouldn't feel comfortable with [Pitrolo] as the director," said Cloninger.
Greene didn't go into details about the complaints, she said.
In her deposition, on Dec. 7, 2006, Greene named four people as the source of the complaints: Two were former staffers, one of whom, Taira Lance, was married to someone who applied for the job but missed the deadline — Monitoring Supervisor Kevin Lance. The other former employee, Lori Williams, didn't recall talking to Greene about Pitrolo. Another current staffer named by Greene — Mike Matthews, who was in Brigman's department — also couldn't recall speaking to her at all about the issue. Furthermore, Kevin Lance — the fourth employee named by Greene — testified that he checked his notes and is certain he didn't talk to her until several weeks after the air-quality board made its decision.
Greene also claimed to have witnessed poor presentations given by Pitrolo to Buncombe County Commissioners.
Pitrolo tells Xpress the only time she appeared at a commissioners' meeting before 2006, when she went before them to announce her lawsuit and voice concerns about the direction the agency was taking after Camby's departure, was to accept an award.
Cloninger, for her part, said in deposition that Pitrolo's presentations to the air board were good, other than an instance in which Cloninger interpreted the engineer's tone as condescending toward those who didn't understand the technical aspects of a report she gave.
Nonetheless, by June, the combination of these alleged complaints and the phone calls was affecting Pitrolo's chances to get the interim-director job.
Cloninger's arguments in a June 7 closed session held by board members were pivotal in swaying other board members to pick Brigman instead of her, and it's clear they discussed gender discrimination, Pitrolo argues.
According to the meeting minutes, the board publicly announced that the interim-director committee wasn't ready to make a recommendation, and Church announced his resignation, effective that day.
Shortly afterward, Lovin made a motion for the board to go into closed session.
The ensuing conversation, videotaped by the board then later submitted into the public record of the case, opens with Lovin reporting that the county opposed making Camby interim "contract" director — an idea that had cropped up since the May meeting. Board members decide to drop the request.
The topic then turns to selecting an interim director, and Church repeats his recommendation that the board pick Pitrolo, a choice "reaffirmed by Bob in terms of who on staff can best serve [in that position]. I take his opinion as director … as the only piece of evidence necessary to move forward."
But Cloninger replies, "She is not our choice." She says Pitrolo's family "has made some threatening phone calls to community leaders. I don't like being pushed to make a decision." Using Caudle's phone call as her main piece of evidence, she adds, "The maturity level is not there." Cloninger continues, "We sort of decided now … who would be interim director."
Kahl interjects, "We haven't been terribly professional. We haven't even responded to [the] three people who have applied."
The board attorney, Jim Siemens, explains, "You have to … evaluate based on a consistent criteria, [and] then make your decision." He goes on to suggest collecting and reviewing resumés, and "hold[ing] everybody to the same standards." He also addresses board members' previously raised questions about how much input and control county officials have in the process: "The board has the discretion to hire and fire the director".
But as the discussion continues, Cloninger argues that while all three candidates are experienced and qualified, "The county got several calls from staff, is my understanding from Wanda." Again, without giving details of these alleged complaints, Cloninger at first says there are "a few notes" in Pitrolo's personnel file but then acknowledges there were no signs of any formal disciplinary actions (in deposition, she admitted that no board members ever got to see Pitrolo's personnel file; they tried to and were turned away by the county personnel director).
"That's not documented," says Church of the alleged complaints.
"Leave the political stuff out," Lovin urges.
"Definitely," Kahl says, echoed by Cloninger's "absolutely."
Nonetheless, Cloninger's words appear to sway board members as the discussion continues, and they switch to emphasizing that Brigman's agency experience makes him a good candidate for the interim-director position. Lovin touts his past positive interactions with Brigman as further evidence of him being a good choice, especially in terms of the "sticky situation" entailed in picking an interim director.
Cloninger also mentions, "We've been accused of discrimination," and voices surprise that she, a woman, would be accused of such.
No one present at the meeting ever reviews the résumés that were on hand.
And Church concludes by saying he won't vote, in part since he just announced his resignation. "I do not believe that it serves the agency well if I am the only vote that is not in approval," he explains.
Church does, however, remind members that they cannot make hiring decisions "on the basis of race, creed, color, so on and so forth."
When the board returned to open session, they vote 4-0 to name Brigman the new interim director.
Pitrolo admits to having been very emotional when she heard the news. Just two weeks later, she resigned, and subsequently declined to apply for the permanent director's job. "I felt their minds were made up, and that I had my answer," says Pitrolo.
In the months that followed, the board interviewed director candidates after a national search, but picked Brigman. Lance, who has a bachelor's degree and had applied for the interim-director after the board's deadline, became assistant director — a position that hadn't been filled for several years. Both men had worked for the agency during Cody's controversial tenure as director.
Plemmons, when reached by Xpress, voiced surprise that Pitrolo didn't apply for the director's position, insisting that CIBO members would have tried to work with whomever was named to the position. Was Pitrolo passed over because CIBO's members thought she'd too strictly enforce local, state and federal air-quality regulations?
"There was talk of her being more strict, sure," says Plemmons. "But you'd have that [concern] whenever any position in a regulatory agency changes." Of the interim-director job, he adds, "When you have a controversial agency, you look for someone to smooth it out, especially when you've got so many groups eyeballing it and vying for influence." Plemmons says some people want to "make Buncombe an island to itself and be stricter than the state," with regards to enforcing air-quality regulations. (The local agency is allowed to adopt stricter regulations than those mandated by the state or federal governments.)
In his deposition, Camby remembered getting a call from Plemmons before the board made its June 7 decision: "One of the things he was concerned about was having more restrictive standards … and that [Pitrolo] would be able to impose stricter regulations on some of his constituents than he'd … want to have."
Pitrolo makes this observation: When Camby became director in late 1999, he ramped up enforcement. If she were male and had a reputation for being strict, as Camby was, the board would have made a different hiring decision; they might have hired her, Pitrolo contends. Board members and county officials violated Title VII in their decision process, she insists.
Pitrolo also points to another segment of Cloninger's testimony: Asked whether she thought the engineer was a "sore loser" because she got upset about the decision and filed a lawsuit, Cloninger responded, "I do. … I wouldn't file a complaint. I wouldn't do it myself. … What goal is there to be accomplished?"
"Women … need to be seriously considered for jobs for which they are qualified," Pitrolo responds. If gender-discrimination cases were never undertaken, women would find it even harder to advance in male-dominated fields, including engineering, she argues. Further, the federal government doesn't have the resources to investigate each claim — last year, the EEOC received about 28,000 Title VII complaints — but "Congress put in place the ability to recover attorney fees and costs when discrimination is proven, as it was in my case."
Pitrolo, incidentally, still works in air regulation. After leaving the agency, she returned to the North Carolina Division of Air Quality, where she had worked earlier in her career; and in 2008, she got a job with the U.S. Forest Service, helping address air-quality issues across the Southeast. "There still aren't a lot of women engineers," says Pitrolo, who points out another detail in her case: Until Brigman, all previous directors at WNC agency came from the engineering division, had college degrees, and had first been either assistant directors or interim directors (sometimes both). But despite the 10 years' experience she had accumulated in 2005 and her advanced education, she "wasn't even interviewed for the job."
She's optimistic about the chance the appeals court will again reverse Thornburg, and if they do, he won't be hearing the case this time. And in response to the concerns raised about her maturity level and the fact that her father called to complain about what was happening, she says, "If the jury's verdict is reinstated, and we recover attorney fees, then Buncombe County will perhaps think twice when making hiring decisions in the future, and hire the most qualified person regardless of gender, race or other personal qualities unrelated to how a person does the job."