A former autopsy technician who said he was forced to resign because he told investigators that a state pathologist mishandled murder evidence has lost his whistleblower case.
Administrative law judge Fred Morrison Jr. ruled Thursday that Kevin Gerity of Raleigh failed to prove that state officials targeted him after Gerity complained that North Carolina’s deputy chief medical examiner never turned in a bullet from a 2011 autopsy.
Morrison said Gerity’s complaints seemed to stem from a soured relationship with the pathologist. He noted that Gerity resigned, rather than facing possible termination from officials with the N.C. Department of Health and Human Services.
“An employee who voluntarily resigned from his position may not bring a claim of wrongful discharge,” Morrison wrote.
A DHHS spokesman praised Morrison’s ruling.
“DHHS’ position all along has been that Mr. Gerity’s case is without merit,” said Kevin Howell, a communications aide.
Michael Byrne, Gerity’s attorney, said it’s unclear if his client would appeal to the N.C. Court of Appeals.
Gerity was a 20-year veteran of the medical examiner’s office in Raleigh, which has come under fire after an Observer investigation showed that pathologists in recent years have performed hundreds more autopsies annually than what’s recommended.
Details of the case, held before the N.C. Office of Administrative Hearings, stretch back more than three years.
In May 2011, Dr. Clay Nichols, then the state’s deputy chief medical examiner, performed an autopsy on Terrell Boykin, a 19-year-old homicide victim from Cumberland County.
Gerity, 57, whose salary was about $51,000, cleaned up after the procedure and found a bullet lying on Nichols’ cutting board, he testified. He said it matched an image shown in an X-ray of Boykin’s head. Gerity placed the bullet in an evidence bag and took it to Nichols, who had returned to his office.
Gerity later told N.C.’s chief medical examiner Dr. Deborah Radisch that Nichols’ autopsy report was false because it stated “no bullet is recovered.”
Several officials testified that it was unusual for autopsy technicians to collect evidence themselves rather than calling the pathologist back into the room. One called Gerity’s actions “bizarre,” even though the state had no written procedures for such circumstances.
Court testimony suggested that Gerity and Nichols had a rocky relationship. Gerity called Nichols’ work “sloppy,” while Nichols reprimanded Gerity for using his cell phone at work, testimony showed.
“After considering all of the evidence, it is concluded that (Gerity’s) complaints about the Boykin autopsy primarily concerned his dissatisfaction with Dr. Nichols’ job performance rather than fraud or a substantial and specific threat to public safety,” Morrison wrote.
Boykin’s killer has yet to be arrested, according to the Cumberland County Sheriff’s Office.
North Carolina’s Whistleblower Act prevents the state from firing, threatening or discriminating against an employee for reporting fraud or a public health threat.
In previous interviews, Nichols said he couldn’t confirm that the bullet came from Boykin’s body and kept it in his desk until 2013, when a tipster told the State Bureau of Investigations that evidence in the case was mishandled.
Gerity admitted to cooperating with investigators, but denied being the source of the leak.
In October 2013, DHHS officials launched a probe, which resulted in Nichols’ firing and a recommendation that Gerity be dismissed. Gerity, however, resigned during a disciplinary hearing.