New Haven Independent

Before that step was taken, however, Ervin was advised by a letter he received on March 21st that he was entitled to a public hearing of his case before the board. And the issue, the letter apparently stated, was to be on the agenda of the BOE’s open session on Monday night, March 26th.

However, when he appeared, along with Cheryln Poindexter (pictured at the top of the story with Ervin), chief shop steward of his union, Local 3144, and his lawyer Edmond Clark (pictured at left, with BOE member and Finance Chairman John Prokop), Ervin was told termination had already occurred, and indeed had been voted on hours earlier when the board met in executive session.

What was going on?

“I feel we’ve been stabbed in the back,” said Poindexter. “What’s the point of sending a letter, if when you show up, it’s been decided? It’s a set up.”

School officials defended the termination. They urged Ervin to make use of an appeals process.

Poindexter, who read a prepared statement to the BOE members at Monday’s meeting, said the termination was wrong for a variety of reasons. She said Ervin’s absences — he suffers from asthma, extreme sinus, and other conditions, she noted, stemming from the 1998 asbestos exposure during Hillhouse’s renovation — had not exceeded those allowable under the Family Medical Leave Act (FMLA). And to be terminated, when days were still left to him, was yet another violation of law, she claimed.

According to the Department of Labor’s synopsis of the FMLA, employers must grant an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month period for reasons such as birth and care of a newborn, but also medical leave when the employee is “unable to work because of a serious health condition.”

Furthermore, Poindexter told the BOE, Ervin’s absences in her view should not even have been covered under FMLA, but under the terms of a worker’s compensation case, which he had filed. While that case was denied — in Poindexter’s view, to protect the BOE from liability — there was nevertheless a partial asbestos settlement. “Doesn’t that indicate an admission of liability?” she challenged the board. “Plus Jeffrey had not exhausted allowable accumulated absences under FMLA. To terminate a person while still under that coverage is a federal violation. This is all wrong.”

Edmond Clark, an attorney from Madison, who described himself as representing employees who are facing work discrimination situations, also spoke on Ervin’s behalf in front of the BOE. “Has a step been missed here?” he asked. “Because if my client has been terminated, what of the letter? There’s a problem here with due process.”

Schools Superintendent Reggie Mayo responded by saying there is an appeal process available to Ervin. Clark wanted crystal clear clarification if Ervin had indeed been terminated.

Prokop provided it: “The board has accepted the superintendent’s recommendation, and, yes, the employee was terminated today. And, yes, the appeal process is open to you.”

Andrea Lobo-Wadley, director of human resources for the BOE, was present for the proceedings, and said. “It’s absolutely inaccurate how Cherlyn is characterizing things. BOE is very sensitive to FMLA. He has a grievance procedure that is open to him now, and he can file.”

And what about the letter he received stating that the issue would be on the public agenda today? “It was,” Lobo-Wadley said, “just as you saw, the superintendent heard the presentation, and determined to endorse the decision that was taken earlier in executive session.”

Poindexter and Clark were not mollified. “If they had admitted the liability in ‘98, we would not even be here. You don’t treat people this way who have worked for 16 years. Jeffrey’s supervisor, Dwight Ware (the supervisor of school security) has said Jeffrey is an excellent worker, except for the absences. I’m going to file a grievance tomorrow morning,” she said.

When a reporter asked if Ervin himself would like to make a statement, he seemed reticent, and Clark spoke on his behalf: “Mr. Ervin’s rights were abused,” he said. “He has been egregiously wrong. His rights to due process have been violated, and we intend to apply for redress on both the state and federal level.”

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