03/08/09 — lawsuit involving braswell and former magistrate settled

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lawsuit involving braswell and former magistrate settled

By Matthew Whittle
Published in News on March 8, 2009 9:57 AM

A lawsuit filed by the U.S. Department of Justice against the N.C. Admin-istrative Office of the Courts and former Superior Court Judge Jerry Braswell has been settled.

The lawsuit, which was filed by the federal Justice Department in November 2008, alleged that Braswell and the state Office of the Courts violated the Uniformed Services Em-ployment and Reemploy-ment Rights Act of 1994 when James Myles, a magistrate in the 8th Judicial District, was not re-appointed by Braswell to his post.

Myles, who entered the U.S. Army Reserve in November 2005 after leaving active-duty service as a sergeant in 1995, was originally appointed to serve as a magistrate in Wayne County in January 2005.

In 2006, after achieving the rank of staff sergeant, Myles became a drill sergeant, training members of the U.S. Navy and U.S. Air Force as they prepared for their deployments.

The complaint, filed in U.S. District Court in Raleigh, explains that Myles was forced to take time off from work in 2006 to complete his military duties, and that on Nov. 2, Braswell sent a letter to Myles "criticizing his attendance record, including absences necessitated by Mr. Myles' military service obligations, and indicating that Mr. Myles' 'National Guard duty comes second to your job.'"

Attached to that letter, the complaint states, was a memo from former District Court Judge Joe Setzer alleging that 54 of Myles' 188 days taken off work between Jan. 1 and Sept. 30, 2006 were for military duty.

And according to the complaint, in his letter, Braswell "prohibited Mr. Myles from taking any non-emergency leave until after April 30, 2007."

The complaint goes on to state that sometime in October or November 2006, the county clerk of court nominated Myles for re-appointment as a magistrate, but that in February or March 2007, Braswell declined to do so.

The complaint contends that "defendant Judge Braswell's decision to not re-appoint Mr. Myles as magistrate was motivated in part by Mr. Myles' military service."

The complaint also states that Braswell wrote a letter in 2007 during an investigation by the U.S. Department of Labor's Veterans' Employment and Training Service indicating that "magistrate re-appointment decisions were 'completely' within his discretion and that 'USERRA has no application on this case.'"

It goes on to explain that after being told by VETS that Myles was entitled to re-appointment, Braswell replied that Myles was not re-appointed "because of his failure to coordinate 'his time off with the needs and demands of his job' ... 'an employee has a right to take vacation, sick leave or attend to military duties but when it is taken is a matter of concern for the employer and not a unilateral decision made by the employee.'"

Under the Uniformed Services Employment and Reemployment Rights Act, though, people serving in the Armed Forces, Reserves or National Guard or other "uniformed services" cannot be disadvantaged in their civilian careers because of their service, cannot be discriminated against because of their service and must be promptly re-employed in their civilian jobs upon return from duty.

Braswell, however, has said that Myles' military service had nothing to do with his decision to not re-appoint him.

"No. His failure to be re-appointed had to do with him not reporting to his supervising authority or to his supervising magistrate when he took off," Braswell said. "I think he had some outpatient, elective surgery and he did not make any arrangements with his coworkers to cover for him as he had been instructed to do so.

"I had instructed him to get permission to miss any more work, and he elected to miss work and didn't tell anyone."

Among the requests in the complaint's prayer for relief, the Justice Department said that it was seeking a declaration that the failure to re-appoint Myles was unlawful, Myles' re-appointment, payment of Myels' lost wages and benefits and interest on those.

The settlement, however, only provides for Myles to receive $12,000 from the Administrative Office of the Courts, minus the necessary employee tax withholdings and contributions on the $6,000 back pay portion. It does "not constitute an admission (of wrongdoing) by any of the parties... ."

"We admit no wrongdoing. We only settled on his claim," said Administrative Office of the Courts spokeswoman Sharon Gladwell.

Braswell declined to comment on the settlement, saying that he had not seen it.

Myles, who is still in the Army Reserves, was out of town and could not be reached for comment.