CHARLESTON, W.Va. — Two years after a harassment claim against businessman Bray Cary was settled, the issue has resurfaced thanks to his newly-disclosed role as a citizen volunteer in the Governor’s office.
Cary was the subject of a harassment lawsuit filed by a nurse who claimed he became hostile and belligerent during a routine examination. His company, West Virginia Media Holdings, also was sued in a lawsuit that wound up being settled for an undisclosed sum.
Cary now has unique status within Gov. Jim Justice’s office, essentially becoming an insider who is not on payroll. If he were to be sued over a workplace problem, could the state now be liable?
“I can’t speak to the merits of that lawsuit that he was involved in, but the fact remains that the state is now on notice of a a suit being brought against Mr. Cary for actions he took toward another person,” House Minority Leader Tim Miley said in a telephone interview.
“What happens if he does something else adverse to another person that generates a lawsuit? Is the state responsible? There’s so many issues, all of which could be avoided if they just took a commonsense approach to this.”
Cary’s unpaid role came under scrutiny this week because it lies in a gray area.
He received a reserved parking spot, a swipe card for 24-7 access to the Capitol and the ear of the governor. He is said to have office space near the governor and has been participating in meetings dealing with policy.
“What’s the recourse if he serves in some supervisory role and takes an action against an employee for which he is later sued?” asked Miley (D-Harrison).
“Who would be liable? Bray Cary personally or the State of West Virginia? There are so many more questions being raised that it seems to make the most sense to put him on the payroll.”
House Judiciary Chairman John Shott (R-Mercer) raised similar questions about Cary’s role.
“The whole issue in my mind is you ought to operate under an abundance of caution,” Shott said.
“When there’s a possibility or the temptation is there to abuse whatever authority you have or may appear to have, the prudent thing to do would be to take the position you’re going to register as a lobbyist or become an employee, and it clears everything up.”
Shott said he doesn’t believe Cary is the kind of person who would abuse his position, yet suggested the state and Cary be cautious.
“If somebody asked my advice, I’d say I think you need to clarify that role,” Shott said. “Then you know the duties and the responsibilities and the state knows what its liability is.”
The state’s Division of Personnel Prohibited Workplace Harassment Policy addresses issues involving employees and volunteers: “This prohibition applies to independent contractors and volunteers while engaged in any work-/service-related activity in a workplace owned, leased, or operated by a public agency or entity.”
The course of action for a claim involving a volunteer isn’t totally clear.
“There are guidelines for the investigative process. While there are no procedures requiring specific action be taken for volunteers, the appointing authority would take action based on the specific details of a situation,” said Diane Holley-Brown, spokeswoman for the Department of Administration.
An appointing authority is defined as the executive or administrative head of a unit of state government who is authorized by statute to appoint employees in the classified or classified-exempt service.
But since no one appoints a volunteer, how might that apply?
The state Democratic Party brought up the earlier incident against Cary this week in a media release titled, “Bray Cary Must Answer For Alleged Mistreatment of Female Nurse.”
“Since Bray Cary is serving in an official capacity in the Governor’s office, West Virginians deserve to know the details of what happened between Cary and his nurse,” stated Belinda Biafore, chairwoman of the West Virginia Democratic Party.
The lawsuit against Cary was filed April 7, 2014, in Kanawha Circuit Court by nurse Melinda Heiss.
She claimed the incident happened in 2012 when as an employee of Portamedic she visited WOWK-TV in Charleston to perform medical screening necessary for a life insurance policy.
Heiss contended the then-TV executive became belligerent after she drew a vial of blood and asked Cary a series of questions. The lawsuit claimed Heiss decided to leave, but Cary blocked the door and demanded she return the vial of blood.
Heiss claimed an insurance agent who was put on the phone pleaded with her to finish the exam or, at least, obtain a urine sample.
She agreed, but according to the complaint: “Rather than retreating to the men’s restroom, Defendant Cary went inside an office, urinated in the cup, and returned with his trousers visibly unzipped and was very rude and insulting” when he gave the sample to Heiss.
Heiss claimed the incident was so upsetting that she suffered severe emotional distress, had to quit her job, and suffered from post-traumatic stress disorder.
Cary’s answer to the lawsuit denied the claims, although with little detail. Even the day and time of the incident were disputed.
“Defendant denies that the date and time of the alleged meeting between Ms. Heiss and Defendant occurred on April 9, 2012, at 8 a.m. and demands strict proof thereof,” wrote Cary’s lawyers.
“Defendant admits that he met with Ms. Heiss, but denies that such a meeting occurred on that date and time.”
And then this:
“Upon information and belief, Defendant admits that he received a urine collection cup from Ms. Heiss. Defendant is without sufficient information to either admit or deny the remaining allegations contained in paragraph 30 of the complaint and therefore, denies the same and demands strict proof thereof.”
A judgment offer on May 16, 2014, proposed a $10,000 settlement for Heiss, plus attorneys fees and costs not to exceed $1,000.
It’s unclear if that offer was accepted or if it became a negotiating point.
On June 8, 2015, the case was dismissed. Cary and West Virginia Media Holdings reached an agreement with Heiss.
The terms were placed in a confidential settlement agreement.
Mike Hall, the chief of staff for the Justice administration, said he feels comfortable with Cary’s role in that situation. Hall said he and Cary have talked about the circumstances of the lawsuit.
“I believe when you dig into the details of that you’re going to discover that what’s going to be said about that by innuendo and actual fact is going to prove itself out to be a non-issue,” Hall said.
“People get sued all the time. Sometimes those lawsuits are more frivolous than others. I’ll let others determine that.”