STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 06 OSP 0134 06 OSP 0135

Lisa A Forbes ) Petitioner ) ) vs. ) DECISION ) Dorothea Dix Hospital ) Respondent )

Upon consideration of Respondent’s Motion for Summary Judgment, the undersigned hereby GRANTS the Respondent’s Motion for Summary Judgment on the grounds that Petitioner has failed to established a prima facie case of being denied a promotion and failure to receive priority consideration because of her race and creed. Accordingly, there are no genuine issues of material facts existing which are determinative of any right or duty which Respondent owes Petitioner and, as a matter of law, Respondent is entitled to summary judgment.

FINDINGS OF FACT

1. On January 23, 2006, Petitioner filed (2) two separate Petitions for Contested Case Hearings. In Contested Case (06 OSP 0134) Petitioner alleges failure to be promoted based on racial and creed discrimination. In Contested Case (06 OSP 0135) Petitioner alleges failure to receive priority consideration based on racial and creed discrimination.

2. Based on the affidavit of Sondra Chavis and Petitioner’s responses to Respondent’s Requests for Admission, Petitioner has not applied for any position at Dorothea Dix Hospital since 2004. Respondent has not taken any action from which Petitioner can appeal.

3. On March 9, 2006, Respondent filed Motions for Summary Judgment in both cases on the grounds that Petitioner fails to make out a prima facie case of racial and creed discrimination in not being promoted and not receiving priority consideration.

4. On March 13, 2006, Chief Administrative Law Judge Julian Mann, III ordered that the two contested cases be consolidated for hearing.

CONCLUSIONS OF LAW

1. This contested case is subject to a ruling on summary judgment pursuant to N.C. Gen. Stat. §1A-1, Rule 56 of the Rules of Civil Procedure, N.C. Gen. Stat. §§150B-33(b)(10) and 150B-36(c) and 26 NCAC 3.0105 and .0115. -2-

2. In order to make a case for discrimination based on race and creed, Petitioner is required to offer proof of facts making out each element of a prima facie case for each claim. Petitioner has failed to meet this requirement. Petitioner has not established a prima facie case because she has not established that there was in fact any action from which she is legitimately entitled to lodge an appeal.

DECISION

Based upon the foregoing, the undersigned hereby DISMISSES this contested case petition with prejudice. Petitioner has failed to establish a genuine issue of material fact in that she has failed to establish a prima facie of discrimination based on race and creed. Petitioner has not shown that she was denied a promotion, or that she failed to receive priority consideration, because of her race and creed.

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, NC 27699-6714, in accordance with N.C. Gen. Stat. § 150B-26(b).

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-36(b). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency making the final decision is the North Carolina State Personnel Commission.

This the 29th day of March, 2006.

______Beecher R. Gray Administrative Law Judge