Whitt Ints & Rpds

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF ONSLOW 06 OSP 0989

Walter Giese ) Petitioner ) ) vs. ) DECISION ) Onslow County Board of Health ) Respondent )

Pending before the Office of Administrative Hearings in this matter is Respondent Onslow County Board of Health’s Motion for Summary Judgment. The undersigned having found that no genuine issue of material fact exists and that Petitioner’s admissions demonstrate that Respondent possessed just cause to dismiss Petitioner for unacceptable personal conduct, Respondent’s motion is allowed and Respondent’s decision is affirmed.

PROCEDURAL BACKGROUND

On May 30, 2006, Petitioner filed a petition for contested case hearing in the Office of Administrative Hearings contending that Respondent did not have just cause to dismiss him for unacceptable personal conduct. After obtaining continuances, the parties filed their prehearing statements, with Petitioner filing his Prehearing Statement on July 26, 2006, and Respondent filing its Prehearing Statement and documents constituting final agency action on August 1, 2006.

The parties conducted discovery, including deposition examination of Petitioner. On December 4, 2006, Respondent filed the instant Motion for Summary Judgment. On January 2, 2007, discovery closed. At the request of the undersigned, the parties submitted evidence and information regarding Respondent’s motion. Specifically, on December 27, 2006, Respondent filed its submissions containing excerpts from Petitioner’s deposition and the deposition of former Onslow County employee Teresa Smith. On January 4, 2007, Petitioner filed his Response to Motion for Summary Judgment, including the deposition testimony of Onslow County employee Lori Brill and an unverified excerpt from the Onslow County Personnel Manual. On January 11, 2007, Petitioner filed a Memorandum in Response to Motion for Summary Judgment.

Discovery having closed and the parties having tendered their submissions, this matter is now ripe for disposition.

STANDARD OF REVIEW

Pursuant to North Carolina General Statute § 150B-33(b)(3a), the undersigned is empowered to rule of all prehearing motions that are authorized by North Carolina General Statutes 1A-1, the Rules of Civil Procedure. Rule 56 provides that judgment shall be rendered if the competent summary judgment record shows that there is no genuine issue of material fact and that any party is entitled to judgment as a matter of law.

Whether the undisputed facts demonstrate that Respondent possessed just cause when it dismissed Petitioner from his employment with the Onslow County Health Department for unacceptable personal conduct.

UNDISPUTED FACTS

The official record demonstrates the following undisputed facts:

1. Petitioner was employed by the Onslow County Health Department in the Environmental Health Department. (Respondent’s Prehearing Statement, ¶ 2.b.). On December 16, 2005, Petitioner was an Environmental Health Supervisor One, having been promoted to that status on July 01, 2005.

2. On February 15, 2006, Respondent dismissed Petitioner from his employment on the basis of unacceptable personal conduct.

3. According to Petitioner’s sworn admissions and his submissions in response to the instant Motion, on Friday, December 16, 2005, Petitioner engaged in a “fit of anger as a result of being notified” of the results of Onslow County’s compensation classification study. (Deposition of Walter Giese, pp. 29-36, 66-68; Memorandum in Support of Petitioner’s Response to Respondent’s Motion for Summary Judgment, p.2).

4. According to Petitioner, a Supervisor, his “fit of anger” included:

a. becoming “upset” and “angry,” (Deposition of Walter Giese, pp. 29-36, 66- 68; Memorandum in Support of Petitioner’s Response to Respondent’s Motion for Summary Judgment, p.3);

b. physically knocking items off of his desk in the presence of his co-workers, (Id.);

c. kicking a cork board in or near his office in the presence of his co-workers, (Id.);

d. kicking a laser printer in or near his office in the presence of his co-workers, (Id.);

e. exclaiming “fuck this place” to or in the presence of his co-workers, (Id.);

f. calling Onslow County’s Human Resources Department and speaking in an angry tone, (Id.); g. using profanity, including the words “Goddamn” and “fuck” during the call with Onslow County’s Human Resources Department, (Id.);

h. leaving the workplace prior to the established end of the workday without prior approval or permission, (Id.).

5. Respondent investigated the incident, including the interview of Petitioner and witnesses.

6. On December 19, 2005, Petitioner, his supervisor Jon Harrison, and the Onslow County Human Resources Director Tom Morgan met to discuss the December 16, 2005, incidents at which time Petitioner was asked to provide a written account of the events.

7. Thereafter, Mr. Morgan continued the investigation.

8. On January 20, 2006, Mr. Morgan documented the results of his investigation and concluded that: (1) Mr. Giese did violate the Personnel Policy, Article VII, Section 8 including “unauthorized absence”, “failure to maintain satisfactory and harmonious working relationships with employees”, and “conduct unbecoming a public officer or employee,” and (2) Mr. Giese violated the “Policy of Expectations and Understanding Involving Behavior On and Off Duty that Specifically Affects the Mission, Tasks, Responsibilities, and Reputation of the Onslow County Health Department” by acting in a “threatening, harassing, menacing, or intimidating” manner.

9. Mr. Morgan recommended that Petitioner receive disciplinary action for his actions. Mr. Morgan recommended disciplinary action including dismissal with the specific action to be determined at the discretion of the Director of the Onslow County Government Health Department.

10. On February 13, 2006, George O’Daniel, the Onslow County Health Director, conducted a pre-disciplinary conference where Petitioner was afforded the opportunity to provide any information regarding the incident to those involved in the Investigation.

11. On February 15, 2006, Mr. O’Daniel made the decision to terminate Petitioner’s employment with the Onslow County Health Department. Reasons for the termination were given as “unacceptable personal conduct as defined by 25 NCAC 1I2304(b) for your actions on December 16, 2005.” The termination letter advised Petitioner of his rights to appeal.

12. Petitioner exercised his rights to appeal Respondent’s decision. Petitioner and his counsel appeared and provided information and arguments to Mr. O’Daniel on March 14, 2006.

13. On March 20, 2006, Mr. O’Daniel corresponded with Mr. Giese, informing him that he had “considered the information and arguments you provided” and had “decided not to alter” the February 15, 2006, dismissal.

14. Petitioner appealed Mr. O’Daniel’s decision to the Onslow County Board of Health, and on April 24, 2006, appeared with counsel before the Board and provided information and arguments. After deliberation, the Onslow County Board of Health unanimously recommended that Petitioner’s dismissal be upheld. 15. On May 2, 2006, Mr. O’Daniel corresponded with Petitioner, informing him of the Board of Health’s recommendation and alerting him that “the final agency decision is that the action of February 15, 2006, terminating you from the Department for unacceptable personal conduct remains unchanged and stands as previously set forth.”

16. This contested case followed.

CONCLUSIONS OF LAW

1. The parties properly are before the Office of Administrative Hearings. Respondent received proper notice of the Petition and Petitioner received proper notice of the Motion for Summary Judgment.

2. At the time of his dismissal, Environmental Health Supervisor One Giese was a career state employee entitled to the protections of the North Carolina State Personnel Act; specifically, the just cause provision of N.C. Gen. Stat. §126-35.

3. The State Personnel Act permits disciplinary action against career state employees for “just cause.” N.C. Gen. Stat. §126-35. Although “just cause” is not defined in the statute, the words are to be accorded their ordinary meaning. Amanini v. Dep’t of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114 (1994) (defining “just cause as, among other things, good or adequate reason).

4. Respondent has the burden of proof in this contested case hearing to show that it had just cause to dismiss Petitioner in accordance with N.C. Gen Stat. §126-35.

5. Administrative regulations provide two grounds for discipline or dismissal based on just cause: unsatisfactory job performance and unacceptable personal conduct. N.C. Admin. Code tit. 25 r. 1J0604(b).

6. Petitioner was dismissed from his employment with the Onslow County Health Department for unacceptable personal conduct which means, among other things, conduct for which no reasonable person should expect to receive a prior warning or the willful violation of known or written work rules or conduct unbecoming a State employee that is detrimental to State service. N.C. Admin. Code tit. 25 r. 1J0604(b).

7. The undisputed, competent summary judgment record, most notably Petitioner’s own sworn admissions and Petitioner’s submissions, demonstrate that Respondent had just cause to dismiss Petitioner for unacceptable personal conduct in accordance with N.C. Gen. Stat. §126-35.

DECISION

Based upon the foregoing Undisputed Facts and Conclusions of Law, the decision of Respondent Onslow County Board of Health to dismiss Petitioner for unacceptable personal conduct is supported by the evidence and is affirmed. ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with North Carolina General Statute 150B-36(b).

NOTICE

The State Personnel Commission will issue an advisory opinion to the Director of the Onslow County Department of Health. G.S. 150B-23(a). The Director of the Onslow County Department of Health will make the final decision in this contested case.

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

This the 22nd day of January, 2007

______Beecher R. Gray Administrative Law Judge