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STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF COLUMBUS 05 OSP 1017

Deena Ward, ) Petitioner ) ) v. ) DECISION ) Columbus County Department of ) Social Services, ) Respondent. )

Administrative Law Judge Melissa Owens Lassiter conducted a contested case hearing in this case on November 18, 2005 in Carolina Beach, NC; on January 11, 12, 18, 2006 in Wilmington, NC; and on February 7, 8, 14, 2006 in Raleigh, NC. At the beginning of the hearing, the undersigned granted Petitioner’s Motion to Sequester witnesses, and Motion to Seal the record. During the hearing, the undersigned also Denied Respondent’s Motion to Dismiss Petitioner’s harassment, sexual harassment, hostile work environment, and retaliation claims.

By Order dated February 15, 2006, the undersigned ordered the parties to submit proposed decisions on or before March 15, 2006. On March 14, 2006, Respondent submitted its proposed Decision. Pursuant to an Order Granting an Extension of Time, on March 16, 2006, Petitioner filed her proposed Decision. On May 2, 2006, Chief Administrative Law Judge extended the deadline for the undersigned to file her Decision until June 19, 2006. On June 19, 2006, Chief Administrative Law Judge extended the deadline for the undersigned to file her Decision until June 21, 2006.

APPEARANCES

For Petitioner: Bartina L. Edwards Attorney at Law 10925 David Taylor Drive Suite 100 Charlotte, NC 28262

For Respondent: James R. Caviness Attorney at Law Columbus County DSS PO Box 397 Whiteville, NC 28472 EXHIBITS

For Petitioner: 2 - 5, 7, 8, 10, 13 - 14, 17 - 20, 22, 24 - 30, 32 - 33, 35 - 37, 39, 41, 43, 44

For Respondent: 1 - 9, 10 – 26, 28 – 32

STATUTES AT ISSUE

N.C. Gen. Stat. §§ 126-1, 126-5(a)(2), 126-34.1, 126-35, 126-36 25 NCAC 1I .2300 et seq. N. C. State Personnel Manual, Sections 1 & 7 Columbus County Personnel Manual & Policies

ISSUES

1. Whether Respondent followed proper procedure in suspending Petitioner for 10 days without pay?

2. Whether Respondent had just cause to suspend Petitioner from employment for 10 days without pay?

3. Whether Respondent, its agents, and/or employees harassed and/or sexually harassed Petitioner, because of her sex, status, and physical characteristics?

4. Whether Respondent, its agents, and/or employees created a hostile work environment for Petitioner at Petitioner’s place of employment?

5. Whether Respondent, its agents, and/or employees retaliated against Petitioner after Petitioner filed numerous internal grievances and EEOC grievances opposing alleged harassment, sexual harassment, and unlawful and hostile work environment by Respondent and its agents, and/or employees?

FINDINGS OF FACT

Background Facts

1. On or around September 21, 1999, Petitioner was hired by Respondent Columbus County Department of Social Services (“Respondent” or “DSS”) as an Income Maintenance Caseworker II.

2. At all times relevant to this case, Petitioner has been employed as an Income

2 Maintenance Caseworker II with Respondent.

3. Petitioner is a married, caucasian female with striking physical characteristics, having one young child and one adult child.

4. Petitioner is the only employee with her physical characteristics in her workplace unit.

5. At all times relevant to this case, including the contested case hearing, Ms. Ethel Patrick was Petitioner’s immediate supervisor with Respondent.

6. At all times relevant to this case, Ms. Becky Williamson has been the Income Maintenance Administrator for Respondent. She is also known as Petitioner’s manager, and is Ms. Patrick’s immediate supervisor. Ms. Williamson reports directly to Respondent’s Director Ms. Marva Scott.

7. Both Ms. Williamson and Ms. Patrick have supervisory or management positions at Respondent, possessing the authority to discipline, and recommend suspension and/or termination for Petitioner.

8. From early 1996 until February 28, 2003, Mr. Larry Moore was Respondent’s Director.

9. In March 2003, Marva Scott began as Respondent’s Director. All of the above-named employees fall within Ms. Scott’s ultimate responsibility for personnel as Director of Respondent.

10. As mandated by statute, Respondent has a Social Services Board that, among other things, maintains oversight responsibility for the agency, including the hiring and firing of the Respondent’s Director. Respondent’s Board consults with the Director on agency issues.

11. While Respondent has implemented some of its own operating policies, it remains an agency within Columbus County, and thus, is subject to the Columbus County rules and regulations as defined by the governing policies and statutes. As such, Petitioner’s employment as a county and social services employee is governed by, and meets, the definition of “employee” under Chapter 126 of the North Carolina General Statutes.

12. At all times relevant to this case, Respondent employed over 100 employees.

Facts Regarding Inappropriate Touching/Dress Code

13. When Mr. Moore became Director in 1996, a dress code restricting the wearing of certain items of clothing, prohibiting certain types of dress, and setting the minimal length of women’s skirts was already in effect. Specifically, that policy required that “Skirts or dresses should be no more than two (2) inches from the top of the knee.” While Mr. Moore made revisions in the dress code, he did not change the provision regarding the length of dresses or skirts.

14. A preponderance of the evidence at hearing established that supervisors were

3 “responsible for seeing that staff adhere to the dress code.” (Respondent’s Exhibit 8) The policy allowed supervisors to use their subjective judgment and/or discretion to determine what clothing attire violated the dress code. Under both Director Moore and Director Scott, if the Director saw an employee improperly dressed and the supervisor had not taken the proper measures to ensure the dress code was followed, then the supervisor would also be required to use the same amount of leave as the employee for the employee to correct his/her attire. (Respondent’s Exhibit 8)

15. On or about December 2000, Ethel Patrick became Petitioner’s immediate supervisor. Ms. Patrick consistently rated Petitioner as performing her job “at or above Respondent’s expectations” during Petitioner’s annual performance evaluations. Specifically, Ms. Patrick rated Petitioner’s job performance based on Petitioner’s knowledge of her job, and her effort in completing her assignments.

16. On or around February 5, 2001, Petitioner returned to work after maternity leave. About two months later, Petitioner experienced unwanted touching, constant harassment, and unwarranted scrutiny about Petitioner’s style of clothing from Ms. Patrick. Specifically, Ms. Patrick would touch and rub Petitioner’s shoulders and back in the pretext of telling Petitioner that her bra strap was showing. Ms. Patrick made verbal comments to Petitioner about Petitioner’s body and clothing. In addition, Patrick would grab Petitioner’s hands and squeeze or rub them without Petitioner’s consent.

17. Beginning in 2001, each morning after Petitioner arrived at work, Patrick would stare at Petitioner’s breasts, and/or look Petitioner’s body up and down to examine Petitioner’s clothes. Patrick often asked Petitioner what kind of underwear she wore. She also asked Petitioner what was thong underwear, how thong underwear felt, and asked Petitioner to turn around so Patrick could see Petitioner’s underwear. (Direct-Examination of Petitioner)

18. Every 2-3 months, Ms. Patrick would call Petitioner into Patrick’s office, close the door, and measure Petitioner’s skirt. Patrick measured Petitioner’s skirt by holding a ruler at the bottom of Petitioner’s skirt, and measuring down to Petitioner’s knee. Patrick placed her head between Petitioner’s knees to measure. Patrick advised Petitioner that she was measuring Petitioner’s skirt to determine if Petitioner complied with Respondent’s dress code.

19. Beginning in 2001, Patrick repeatedly measured the same skirts or dresses of Petitioner’s, that Patrick had measured on prior occasions. These were the same skirts and/or dresses that Petitioner had worn to church. When Petitioner asked Ms. Patrick why she had to measure the same clothes on multiple occasions, Patrick indicated that she was enforcing the dress code.

20. Petitioner neither welcomed nor appreciated Patrick’s touching, rubbing, and verbal comments. Petitioner felt scared, and extremely uncomfortable with Patrick’s behaviors. She cried and repeatedly asked Ms. Patrick to stop the measuring and the touching. Patrick told Petitioner that one of Petitioner’s coworkers had complained about Petitioner’s attire. When Petitioner asked Patrick to tell her who was the complainant, Patrick refused; advising Petitioner not to worry about it, that people were jealous. Petitioner continued asking Patrick to stop the measuring through 2005.

4 21. In May or June 2001, Petitioner sought relief from Patrick’s recurring and harassing behavior by orally complaining to Director Larry Moore. Director Moore informed Petitioner that he would address the matter with Ms. Patrick, but was limited as to the type of action he could take under the informal component of the county’s policy. Moore advised Petitioner that she needed to file a written complaint before he could take any greater action. (See Columbus County Handbook, Pg 14; Pg. 34, Sec 4 of the Personnel Administration Policy for the County of Columbus).

22. Petitioner did not feel comfortable filing a written complaint against Patrick, a more senior employee, because she did not want to risk losing her job. Neither did Petitioner want to suffer the embarrassment of having a sexual harassment claim, and potentially having her past, of being raped when she was a child, exposed to her employer or her children.

23. Director Moore continued to act as a buffer to the harassment incidents between Petitioner and Patrick until he retired in March 2003. When Petitioner advised Moore of Patrick’s inappropriate behavior, Moore talked to Patrick about her behaviors. After talking with Moore, Patrick would cease such behavior towards Petitioner for a short time. Patrick would then resume the unwanted touching and measuring of Petitioner’s skirt on an intermittent basis. Ms. Patrick always explained that she was just enforcing the dress code. However, Moore thought that Patrick’s behaviors exceeded what was necessary of Ms. Patrick to enforce the dress code.

24. At Larry Moore’s Retirement Party in March 2003, Patrick apologized to Mr. Moore for Petitioner wearing an inappropriate backless blouse to his party. Patrick told Petitioner that she needed to put on a sweater as her back and shoulders were exposed by her blouse in violation of the dress code. However, the evidence at hearing showed that Petitioner did not wear a backless or halter top to Moore’s retirement party in violation of the dress code.

25. Since 2001, Ms. Patrick continually made comments to Petitioner stressing that Petitioner was not from Columbus County. Patrick repeatedly called Petitioner names such as “City Girl,” and “Vanna White” in front of other staff.

26. On numerous occasions, Petitioner complained to Becky Williamson about Patrick’s harassment issues, including the constant measuring of Petitioner’s skirt. Williamson did not respond to Petitioner’s complaints other than, “Oh, well.”

27. On or about March 2003, Marva Scott began as Respondent’s Director after Larry Moore retired. A preponderance of the evidence showed that after Scott became Director, Patrick’s unwanted touching, comments, and measuring of Petitioner’s skirts increased to an almost daily occurrence. Patrick became more brave in the actual touching.

28. On April 1, 2003, Director Scott implemented a revised dress code for Respondent. Scott did not change the provision covering the minimum length allowed for women’s skirts.

29. In April 2003, Petitioner requested Director Scott meet with Petitioner to discuss Patrick’s harassment of Petitioner. Scott refused Petitioner’s request, and advised Petitioner that

5 she must follow the internal chain-of-command, and first talk to her immediate supervisor, Ms. Patrick.

30. Later in April 2003, Director Scott conducted a staff meeting for all DSS employees. Scott advised staff that she did not have an open door policy, and her office was not a place to gripe about one’s supervisor.

31. A preponderance of the evidence showed that during 2001-2003, Ms. Patrick sent one employee home for violating the dress code for wearing a shirt depicting cows, and one employee home for not wearing appropriate shoes. From 2001-2004, Patrick did not send any other employee home for violating the dress code regarding skirt length, and did not measure any other employee’s skirts more than one time. From 2004-2005, Patrick did not measure any other employee’s skirt or dress except Petitioner’s, because “there was no need to.” (Patrick Testimony, February 14, 2006) At the same time, earlier during direct-examination, Patrick explained that she measured two employees’ skirts for length within the last year (2004-2005).

32. The preponderance of evidence showed that in 2004, Patrick called Petitioner out of a client review meeting. Patrick advised Petitioner that she was not complying with the dress code, because she could see Petitioner’s bra or skin. Patrick pinned the frontal portion of Petitioner’s blouse closed, touching Petitioner’s breast. Petitioner’s blouse had a keyhole-shaped opening located on her upper chest area. Petitioner denies that she was showing any skin or that you could see Petitioner’s bra.

33. A preponderance of the evidence presented at hearing demonstrated that Patrick’s constant unwanted touching of Petitioner on a daily basis, name-calling, and measuring Petitioner’s skirt continued until two weeks before November 18, 2005, the first contested case hearing date. That contact occurred when Patrick walked up behind Petitioner, and started rubbing her back. No one else saw this contact. Petitioner had not told anyone that she was sick, and therefore, would not have needed comforting in that way. The evidence also established that Patrick continued staring at Petitioner’s breasts until two weeks before Petitioner testified at this hearing on January 18, 2006.

34. At the contested case hearing, Ms. Patrick acknowledged measuring Petitioner’s skirts. She only recalled sending Petitioner home on one occasion from 2001-2003. Yet, Patrick did not take any disciplinary action, such as issuing a written warning, or noting dress code violations in Petitioner’s annual evaluations, against Petitioner for violating the dress code from 2001-2003. Neither did Respondent present any documentation proving that Patrick or any other supervisor disciplined Petitioner from 2001-2003, and sent Petitioner home, for violating the dress code.

Petitioner’s Caseload

35. After Petitioner verbally complained to Mr. Moore about Patrick’s harassment in April 2001, Patrick began to assign Petitioner case files containing inaccurate information. This assignment of cases continued with increasing frequency through 2004.

6 36. In 2003, Ms. Patrick asked Petitioner to make changes to files on several occasions. Ms. Patrick requested Petitioner change information in some files, and not change information in other files that had been processed by other caseworkers. Despite Patrick’s repeated requests, Petitioner refused to make some of the file changes, because Petitioner could not verify the validity of the changes, and she did not think she could legally change entries in Respondent’s files.

37. One of Respondent’s policies prohibited its employees from using whiteout to make changes to case files. That policy required workers strike through written entries in case files, and initial the change. Since 2003, Carol Starnes observed Patrick, on at least a daily basis, using whiteout to make changes on case files and departmental logs in contradiction to Respondent’s policy.

(a) Starnes also noticed changes in Petitioner’s files that were made by Ms. Patrick. On at least five occasions since 2003, Starnes examined files where Patrick used whiteout to cover Petitioner’s comments in Petitioner’s files, and write her (Patrick’s) own comments. (Starnes’ testimony)

(b) Yet, Respondent presented no competent evidence at hearing that Patrick had a legal justification to make changes in Petitioner’s files.

38. No other similarly situated workers were designated for, or received, the level of quality control file reviews by the DHHS’ Quality Control Unit as Petitioner. Yet, when DHHS’ Quality Control representatives reviewed Petitioner’s case files, they confirmed Petitioner’s files to be accurate, and successfully meeting the requirements of the Quality Control process.

39. As a supervisor, Ms. Patrick could also conduct random audits of DSS case files. Around April or May 2004, Petitioner was assigned cases for emergency food stamp services. Patrick told Petitioner that Respondent did not screen for that service, but Petitioner indicated they did. When Patrick learned that Respondent did screen cases for emergency food stamp benefits, Patrick requested lead worker Carol Starnes, pull all of Petitioner’s case files to determine if Petitioner had done anything wrong in the files. Starnes was Petitioner’s lead worker, and was very familiar with Petitioner’s cases and workload.

(a) Pursuant to Patrick’s request, Starnes continued pulling Petitioner’s case files with great frequency. Each time Starnes pulled Petitioner’s case files for Patrick, she found no errors with Petitioner’s work. Patrick’s requests to pull Petitioner’s files continued through at least 2004.

(b) For more than one month during 2004, Petitioner’s files were the only files assigned to caseworkers that Ms. Starnes pulled for Ms. Patrick.

(c) On one occasion, Patrick pulled one of Petitioner’s cases, and told the client that she would have emergency benefits the next day. However, since Patrick incorrectly keyed the matter into the system, the client did not receive her benefits for five days. Patrick did not make any notations to the client’s file about her actions. Therefore, Starnes documented Patrick’s

7 actions in the file. The undersigned DENIES Respondent’s Motion to Strike Starnes opinion testimony regarding the result of Patrick’s failure to document her actions. At hearing, Starnes opined that if another person had reviewed this client’s file, he/she would not have known what Patrick had done in this case, and it would have looked like Petitioner, instead of Patrick, made errors in the case.

(d) On another occasion, Patrick reviewed Petitioner’s work on a client’s file, and determined the action taken was incorrect. Patrick told Starnes about her determination. Starnes informed Patrick that the case was another caseworker’s file, Patrick changed her mind, and opined that the action taken on the case was okay. (Petitioner’s Exhibit 38)

40. Beginning in 2003, Petitioner’s caseload became significantly higher than any other Income Maintenance Caseworker II.

41. A preponderance of the evidence showed that Petitioner’s caseload remained higher than any other caseworker in her unit through the dates of the contested case hearing. (Carol Starnes Direct-Examination)

42. At the hearing, Respondent’s witnesses asserted that Respondent’s Exhibit 30 showed that Petitioner did not always have a heavier caseload than other caseworkers. Yet, contrary to Respondent’s assertion, a review of Respondent’s Exhibit 30 proved that Petitioner consistently carried a heavier caseload than other caseworkers. In April 2004 alone, Petitioner carried approximately 60 more intensive types of cases than any other employee on Team 2. (Respondent’s Exhibit 30)

(a) The undersigned notes that the caseloads depicted in Respondent’s Exhibit 30 are based solely upon Ms. Patrick’s input into that report, and do not include the cases listed in Petitioner’s Exhibit 46. Petitioner explained that Petitioner’s Exhibit 46 contains a subset of cases from Respondent’s Exhibit 30. Reading Respondent’s Exhibit 30 and Petitioner’s Exhibit 46 together, one gets a more accurate representation of cases assigned to Petitioner during the time period represented in those documents. That reading also showed that Petitioner carried a heavier caseload than other caseworkers during those time periods. (Petitioner’s Rebuttal Testimony)

(b) In addition, the preponderance of the evidence also established that neither Petitioner’s Exhibit 46 nor Respondent’s Exhibit 30 listed the extra cases that Patrick constantly assigned to Petitioner, without “officially” reassigning such cases to Petitioner on Respondent’s computer system. When a caseworker’s number is not changed at the DSS level, or if a case is closed, additional casework can only be done in a “work-only” status. The evidence presented at hearing established that since 2003, Patrick unofficially reassigned cases to Petitioner, without changing the caseworker number for those cases, on a consistent basis. For example, Patrick reassigned many of caseworker # 85’s cases to Petitioner after that caseworker left DSS in April 2004. Yet, Patrick did not officially reassign those cases to Petitioner in Respondent’s computer system and on the DHHS’ reports, such as Respondent’s Exhibit 30. (Petitioner’s Rebuttal Testimony)

8 Continued Harassment and Different Treatment

43. In September 2003, Petitioner’s supervisors denied Petitioner the opportunity to attend a DSS Conference for which Petitioner was eligible to attend, and in which Petitioner was one of the first to apply. The reapplication process was scheduled while Petitioner was out sick with pneumonia. Upon Petitioner’s return and well in advance of the scheduled conference, Respondent’s supervisors approved a less senior worker to attend the conference.

44. Similarly, in September 2003, Patrick’s supervisors denied Petitioner administrative leave to attend a funeral for her husband’s father. Patrick instructed Petitioner to use her personal sick leave time. However, another employee was allowed to use administrative leave to attend a funeral for a step-grandmother (grandmother of a stepparent). According to the written policy in existence at the time, this step-grandmother was not a covered relative under the agency’s administrative policy.

45. In July or August 2004, Patrick’s harassment of Petitioner increased again. Starnes regularly saw Patrick treating Petitioner’s work on case files differently than other caseworker’s work. On a continuous basis, when Petitioner was out of the office, Patrick would retrieve some of Petitioner’s case files, take them into her office to review Petitioner’s work, and not return those files to Petitioner’s desk. As a result, when Petitioner returned to work, she could not locate and complete work on those files. (Petitioner’s Exhibit 38, p 3) Starnes told Patrick that she was showing partiality to workers other than Petitioner. That is, if Petitioner took action on a case, it was not okay, but if other workers took the same action, Patrick thought it was okay. (Starnes’ Direct-Examination) Petitioner took leave due to Patrick’s behavior.

46. In August 2004, Petitioner took four days of vacation. When she returned on August 9, 2004, she had 63 phone messages, applications for recertification for that week, four stacks of files, and a large amount of mail that had not been opened.

(a) That same day, Patrick called Petitioner into a supervisory conference. Patrick informed Petitioner that while she was on vacation, Patrick reviewed Petitioner’s existing files, and questioned Petitioner’s job performance in some of her case files. In one client’s file, Patrick raised a question about Petitioner’s use of a DSS form. Second, Patrick had received a letter from another client of Petitioner, who complained when Petitioner kept her waiting while Petitioner worked on another case. (Client D. Wilson) When Petitioner requested a copy of the letter, Patrick refused to show the letter to Petitioner. Ms. Patrick advised Petitioner that she only mentioned the letter for awareness, and “We are not going to worry about this, it is obvious that this client has issues with the agency as she applied for a job and was not hired.”

(b) Later, Petitioner presented documentation to Patrick rebutting Patrick’s allegations from the supervisory conference. In the case where Patrick questioned Petitioner about using a form, Petitioner pointed out that, that particular form was pre-dated and pre- stamped before Petitioner arrived back to work. Regarding client D. Wilson, Petitioner showed Patrick a June 6, 2004 email from DSS supervisor Edie Hewitt that said, “If there are a lot of clients that have signed in, you still need to go [take a lunch break] when you finish that client. It won’t hurt a client to wait.” (Petitioner’s Exhibit 35) Petitioner advised Patrick that pursuant to

9 Hewitt’s June 2004 email, she thought it was acceptable for workers to make a client wait a reasonable time. Even though Petitioner presented such evidence to Patrick, Patrick did not remove the supervisory conference memo from Petitioner’s personnel file.

Patrick’s Request for Passwords

47. On August 12, 2004, Patrick sent an email to all staff in her unit, including Petitioner, to:

provide me with your current password to phone and computer by 4:00 p.m. today. Also, if there is a change made at any time forward the change to me at once.

(Petitioner’s Exhibit 39, p 2) When Petitioner asked Ms. Patrick via e-mail about her request to obtain Ms. Ward’s password access, Patrick responded that it was needed. She did not provide Petitioner with any other explanation.

48. At hearing, Patrick asserted that knowing her employees’ passwords did not violate policy. She and Becky Williamson had been asked to develop a disaster food stamp backup program. She contended that they needed employees’ passwords for security and contingency planning, so they could determine the number of working computers if a disaster such as a hurricane struck the area.

49. However, contrary to Patrick’s assertions, the evidence at hearing showed that a DSS Policy prohibited employees from exchanging or disclosing employee’s systems passwords during the time when Ms. Patrick requested Ms. Ward’s password. This policy was even reiterated by Patrick and Edie Hewitt by email several months later. In that email, Patrick and Hewitt advised employees that:

PROTECT YOUR PASSWORD FROM USE BY OTHER PEOPLE. DO NOT SHARE YOUR PASSWORD INTENTIONALLY OR ACCIDENTALLY WITH ANYONE ELSE, INCLUDING YOUR SUPERVISOR.

(Petitioner’s Exhibit 39, p 1) In addition, Patrick did not competently explain at hearing, how having access to employees’ passwords, assisted or supported the security and contingency plans for the agency. Neither did Patrick explain why they were gathering passwords when DSS already had an IT technician named Tommy Thompson.

50. Most importantly, by having access to Petitioner’s passwords, Patrick not only had the authority, but the ability to influence Petitioner’s caseload assignments, and access to Petitioner’s work. This factor showed its significance on October 20, 2004 when Petitioner’s emails, time, display of “Scotland Yard,” Respondent’s system, and confidential information of other service workers were deleted from Petitioner’s computer. (Petitioner’s Exhibit 24, p 3)

51. Later in August of 2004, County Administrator Billy Joe Farmer received an anonymous letter regarding allegations about ongoing problems at DSS that he needed to investigate. The letter advised Farmer to contact various DSS employees about these allegations. Since

10 Petitioner’s name was the first DSS employee listed on the letter, Farmer asked his assistant to schedule a meeting with Petitioner.

(a) Pursuant to Farmer’s request, Petitioner met with Farmer. Petitioner thought Farmer called her to discuss her personnel issues at DSS. During that conversation, Petitioner advised Farmer of Patrick’s constant harassment, inappropriate touching, constant measuring, name calling of Petitioner, and Petitioner’s hostile work environment.

(b) At this time, Petitioner’s relationship with Patrick as “awful.” Petitioner tried to stay away from Patrick at work. Petitioner thought she was following county procedure per the Columbus County Handbook by orally filing a grievance with the County Manager. (Petitioner’s Exhibit 7)

52. On September 2, 2004, approximately mid-day, Patrick sent Petitioner home for wearing specialty underwear that Ms. Patrick stated was visible under Petitioner’s white suit. Ms. Patrick informed Petitioner that her “panty lines” were visible, and everyone could see them. Ms. Patrick further indicated that while she was also wearing white pants and you could see her underwear too, her underwear was different from Petitioner’s underwear, and her shirt covered the top part of her pants. At this point, Petitioner had already completed a majority of her workload for the day.

(a) Petitioner asked Becky Williamson about her attire. Williamson responded that she would uphold Ms. Patrick’s decision. Prior to leaving work, Petitioner advised Patrick and Williamson that she was going to see County Manager Farmer, because she had, had enough, and could not take it anymore. Petitioner decided it was time to put her hostile work environment, and harassment complaints in writing.

(b) Respondent’s dress code policy did not specifically address or prohibit specific types of underwear or visible panty lines.

53. After leaving work on September 2, 2004, Petitioner drove to the County Manager’s office. Petitioner was very distraught when she arrived at Farmer’s office. She advised Farmer that Patrick had sent her home for violating the dress code for having visible panty lines. Farmer called County Commissioners Bill Memory, David Dutton, and Sammie Jacobs to get their opinion whether Petitioner’s attire violated the DSS dress code. At Mr. Memory’s office, Petitioner stood in front of Memory, Dutton, and Farmer, and turned around while they viewed Petitioner’s attire.

(a) Petitioner and Farmer also drove to Commissioner Sammie Jacobs’ office, where Jacobs’ viewed Petitioner’s attire in the same manner. Photos were taken of Petitioner’s attire at Memory’s office.

(b) These Commissioners and Farmer concluded that Petitioner’s attire did not constitute a violation of the dress code policy. These Commissioners and Farmer thought that Petitioner’s attire was professional and acceptable attire for the workplace. (See Petitioner’s Exhibit 19) That same day, Commissioners Memory and Dutton visited the DSS workplace

11 unannounced. Memory and Dutton saw Ms. Patrick was also wearing white pants with a trace of a panty line showing. They observed other DSS female employees whose panty lines were also visible, and saw other employees wearing sleeveless shirts. (Petitioner’s Exhibit 20)

54. On September 21, 2004, Patrick conducted Petitioner’s annual performance evaluation for 2003-2004. In that evaluation, Patrick downgraded Petitioner’s performance to “Fair” in the categories of (1) Knowledge and use of basic laws, agency policies, and functions (4) Client- Worker Relationship. In category (1), Patrick rated Petitioner as “fair,” because she sent Petitioner home in early September for violating the dress code by having visible panty lines. In category (4), Patrick rated Petitioner as “fair” based upon client letter Patrick had told Petitioner not to worry about during the August 2004 supervisory conference. (Respondent’s Exhibit 28, p 2)

55. During Petitioner’s prior annual evaluations, Patrick had rated Petitioner’s job performance as either “Good,” or “Very Good” in all categories, including the above categories (1) and (4). (Respondent’s Exhibit 29)

56. Later in September 2004, Petitioner filed a written internal grievance with County Manager Farmer under the county’s grievance, discrimination, and workplace harassment policies, alleging discrimination and workplace harassment.

57. In October 2004, County Manager Farmer presented the findings of his investigation into Petitioner’s complaint to Respondent’s DSS Board. Farmer gave each board member a folder outlining Petitioner’s complaints, and describing his recommendation for action. DSS Attorney Hill advised the DSS Board about applicable county, state, and federal law. After his presentation, Farmer did not continue his investigation, because he assumed the matter was the Board’s responsibility.

58. By letter dated October 19, 2004, Billy Joe Farmer informed Petitioner that he had investigated her unlawful harassment complaint, and had made a recommendation to the DSS Board for further review and investigation. (Petitioner’s Exhibit 2)

Internal Grievance of Prohibition of Emailing Supervisors

59. On or about October 20, 2004, from 8:30 a.m. through 9:00 a.m., Petitioner could not access her emails; time information; “Scotland Yard” i.e. Respondent’s tracking system; and confidential information of other service workers. All of that information had been deleted from Petitioner’s computer. The missing emails included emails Petitioner had sent to Patrick, Williamson, and Scott, asking for copies of her evaluations, and for a response to the grievances she had filed. (Petitioner’s Exhibit 24, p 3; Petitioner’s Testimony)

(a) Petitioner checked eight other coworkers’ computers to see if emails sent to Ms. Patrick were being deleted, but they were not. During that test, Petitioner sent several emails to Patrick, Williamson, and Scott asking them to send IT technician Tommy Thompson to check her computer. Thompson did not come until Petitioner called Thompson herself. (Petitioner’s Exhibit 24, p 3; Petitioner’s Testimony)

12 (b) Around 9:10 a.m., Ms. Scott called Petitioner on the telephone, and told Petitioner that she needed to meet with Petitioner immediately in Scott’s office. Within a few minutes, Ms. Scott, Patrick, and Williamson met with Petitioner in Scott’s office. Scott read a prepared statement to Petitioner that the conference was not a disciplinary action. Scott told Petitioner that she was NOT to send any more emails to Patrick, Williamson, and Scott. When Petitioner asked to have a written transcript of the conference, Scott refused.

(c) By letter dated November 4, 2004, Petitioner filed a grievance with the Office of State Personnel against Marva Scott for discrimination, workplace harassment, and hostile work environment and retaliation that occurred on October 20, 2004. Specifically, Petitioner appealed Scott, Patrick and Williamson’s decision to prohibit her from using emails to correspond with them. (Respondent’s Exhibit 9)

November 16, 2004 Contested Case Petition

60. On November 16, 2004, Petitioner filed a contested case petition with the Office of Administrative Hearings, alleging that Respondent had subjected her to discrimination, workplace harassment, hostile work environment, and retaliation on October 28, 2004. Specifically, Petitioner asserted that Director Scott, had harassed, discriminated, and retaliated against her by telling Petitioner that she could not send emails to Patrick, Williamson, and Scott. When Petitioner asked Ms. Scott for a transcript of this conference, Scott refused. Petitioner claimed that she was the only person in Respondent’s employment who had been forbidden from corresponding with these persons by email. Petitioner served a copy of her petition on Director Scott.

Post Traumatic Stress Syndrome Diagnosis

61. In November and December 2004, Patrick’s unwanted touching behaviors towards Petitioner increased again. Petitioner became more anxious, depressed, and generally “on edge all the time.”

62. In December 2004, Petitioner sought professional therapy or counseling from a psychologist and psychiatrist for the stress and anxiety caused by her work environment and Patrick’s behaviors towards her. Petitioner was diagnosed with Post Traumatic Stress Syndrome, and depression caused by her hostile work environment and Patrick. Petitioner’s work environment and Patrick’s behaviors triggered Petitioner’s past trauma of being raped as a child.

January 2005 Grievances with DSS Board and EEOC

63. In January 2005, Petitioner filed a grievance and complaint against the DSS Board for refusing to address, and investigate her employment issues and claims. Petitioner was frustrated by DSS Board’s lack of response to her grievances and failure to give Petitioner a hearing, as provided for in the Columbus County Employee Handbook, Pg 15, Step 4 (Petitioner’s Exhibit 7), as well as in the Personnel Administration Policy for the County of Columbus, Page 36 (Petitioner’s Exhibit 37). Per the Columbus County Policy, if an employee is not satisfied with

13 the appeals process to the director, the board is to hear the matter if the employee wishes to be heard. Moreover, the Columbus County Handbook, Page 15, Step 4 allows for the employee to appeal directly to the County Administrator in an adverse action.

64. There was no evidence presented at hearing that the DSS Board addressed Petitioner’s appeals by following the above-referenced county personnel policy until January 2005. At the DSS Board’s January 20, 2004 meeting, Bill Memory, now a DSS Board member, distributed Petitioner’s January 2005 letter grieving the sexual harassment, hostile work environment, and retaliation at DSS. Scott also attended the meeting, and was present when the Board discussed Petitioner’s grievance letter. However, she refused to accept Petitioner’s letter. Scott did advise the Board that everything was taken care regarding the matter with Petitioner. (Commissioner Bill Memory’s Testimony)

65. On January 24, 2005, Petitioner filed a Pro Se EEOC Charge for Sexual Harassment and Hostile Environment. (Petitioner’s Exhibit 33) In February 2005, Petitioner filed an amended EEOC Charge. Neither the County nor Respondent responded to Petitioner’s EEOC complaints.

66. On January 24, 2005, the undersigned dismissed Petitioner’s claim for failing to state a claim for relief under N.C. Gen. Stat. § 126-34.1 by failing to specify the type of discrimination Petitioner had suffered.

67. At the February 2005 DSS Board meeting, all of the DSS Board members and Director Scott attended the meeting. Per Scott’s request, Mr. Patrick McCoy from the NC Office of State Personnel attended the meeting. McCoy advised the DSS Board of the undersigned’s January 24, 2005 dismissal of Petitioner’s grievance, and therefore was no grievance left before the Board. (Pat Paschal Testimony)

68. It is undisputed that Marva Scott attended the DSS Board meetings on a regular basis after she became Respondent’s Director in 2003. A preponderance of the evidence showed that on at least two occasions when the DSS Board inquired about personnel matters at the agency, Ms. Scott responded that all was well and everything was being handled. (See Petitioner’s Exhibit 31, December 1, 2004 letter; Ken Skipper, Bill Memory, and Pat Paschal’s Testimony)

Flex Time Internal Grievance

69. On February 11, 2005, Patrick conducted a supervisor conference with Petitioner. Patrick advised Petitioner that she was removing Petitioner from flextime, because Petitioner did not have sufficient leave. Patrick advised Petitioner that removing Petitioner from flex would allow Petitioner time to accumulate leave. Patrick noted on her Supervisory Conference Notes that Petitioner only had 1.84 hours of available vacation, 1.7 hours of petty leave, and 0 available sick leave. (Petitioner’s Exhibit 43) Patrick noted that Petitioner would “go off flex effective March 1, 2005”.

70. Flextime was a benefit Petitioner had come to enjoy, utilized to offset her leave time, and used to cope with her job-related issues. Petitioner also used her flex days for doctor’s appointments.

14 71. Unbeknownst to Petitioner, before the February 11, 2005 supervisory conference, Patrick and Williamson had adjusted Petitioner’s time sheets from December 2004 and January 2005 without advising Petitioner.

72. On February 21, 2005, Petitioner filed an internal grievance with Patrick, appealing Patrick’s decision to remove Petitioner from flextime. (Petitioner’s Exhibit 25, p 1)

73. By letter dated February 23, 2005, Patrick advised Petitioner that she would discuss Petitioner’s appeal on February 25, 2005. (Petitioner’s Exhibit 25, p 2) On February 25, 2005, Williamson and Patrick met with Petitioner. Williamson advised Petitioner that the decision to remove her from flex effective March 1, 2005 “will stand as is.” (Petitioner’s Exhibit 25, p 3)

74. On March 2, 2005, Petitioner appealed Williamson’s decision on Petitioner’s flextime to Marva Scott. Petitioner stated that “I am not being treated fairly in light of harassment.” (Petitioner’s Exhibit 25, p 4)

75. By letter dated March 11, 2005, Marva Scott, upheld Williamson’s decision to suspend Petitioner from flextime. Scott advised Petitioner that suspension of flex was a discretionary decision by one’s supervisor. Ms. Scott referred Petitioner to review the written flextime policy as revised 10/8/03, and that her flex suspension was effective March 1, 2005.

76. The evidence at hearing proved that Respondent’s Flextime Policy in effect at that time did not require an employee have a certain amount of leave available, before that employee was eligible to participate in flextime. That policy did not allow a supervisor to remove an employee from flextime for an employee’s tardiness or absenteeism. (Petitioner’s Exhibit 5)

77. It was undisputed that when Patrick removed Petitioner from flextime, Petitioner had 1.84 hours of vacation leave available, and 1.7 available petty leave. The evidence was also undisputed that Petitioner was scheduled to receive additional leave time on February 15, 2005, fours day after Patrick removed Petitioner from flextime. In addition, Petitioner would continue to receive additional leave time on the 15th of each month.

Time Sheet Internal Grievance

78. On February 24, 2005, Petitioner noticed her computer’s electronic timekeeper, “Scotland Yard,” was not reflecting her time accurately. When Petitioner attempted to access her time, her timesheet information was not available via the computer. Petitioner requested Tommy Thompson, the DSS computer technician, to provide her with her timesheet information for February 14 and 15, 2005.

79. Instead of providing her with her timesheet information as had been done with employees in the past, Thompson forwarded Petitioner’s request to Marva Scott.

80. On March 11, 2005, Ms. Scott denied Petitioner’s request to provide her timesheet information including hours worked.

15 81. On March 2, 2005, Petitioner submitted a formal written request to Ms. Scott for the timesheet information. Again, Scott denied Petitioner’s request.

82. On March 21, 2005, Petitioner sent another letter to Scott, requesting Scott provide her with her timesheet information. In addition, Petitioner advised Scott that management had not yet explained to her, per the county policy, what attendance problems she was experiencing that would justify removing her from flextime. (Respondent’s Exhibit 13)

83. On March 30, 3005, all of Team 2 workers met to review DSS rules. Approximately 17 employees attended, including Carol Starnes, Petitioner and Patrick. Each employee presented one section of the rules to the remainder of the team. The presentations were given in the game format of “Who Wants To Be A Millionaire.” After Petitioner and coworker Rose Nance presented their section, Ms. Patrick said to Petitioner, “Okay, Vanna White,” in a sarcastic tone of voice. Carol Starnes witnessed and heard Patrick make this statement. Given Patrick’s tone of voice and body language, Starnes did not think Patrick’s comment was said in a joking manner. (Starnes’ Cross Examination Testimony)

(a) Starnes told Patrick that she thought Patrick was treating Petitioner differently than other workers. Particularly, Petitioner’s caseload was larger than anyone else’s caseload. Petitioner’s coworkers also observed that Patrick kept staring at Petitioner. Patrick advised Starnes that she did not want to hear it.

(b) After the meeting, Patrick called her unit into her office. She told them it had come to her attention that she had offended Petitioner. Patrick asked the unit if they thought Patrick was harassing Petitioner. The unit replied, “Yes.” Patrick apologized to the unit, but did not specifically apologize to Petitioner. (Starnes’ on February 7, 2006 Direct Examination Testimony; Petitioner’s January 18, 2006 Cross-Examination Testimony)

84. On April 5, 2005, Ms. Scott denied Petitioner’s request to obtain her time and hours worked information. Scott did not explain the basis for her denial. She noted:

Be advised, any further correspondence relating to these same issues will not be addressed by me and you should not expect any response, since they have already been addressed.

In the future, any new issues should be first addressed with your immediate Supervisor, Mrs. Ethel Patrick.

(Respondents Exhibit 14)

85. Thereafter, Ms. Patrick and Ms. Williamson advised Petitioner that in accordance with direction from Marva Scott, if Petitioner continued to raise the leave time issue, all leave would be taken away from her.

16 86. Given the ongoing and multiple grievances Petitioner was appealing to Director Scott from February through April 2005, it was clear that Ms. Scott knew Petitioner was having problems with her immediate supervisor.

April 1, 2005 Supervisory Conference

87. On April 1, 2005, Patrick and Williamson conducted a Supervisory Conference with Petitioner regarding Petitioner’s job performance. Patrick and Williamson noted that Petitioner was maintaining a caseload of approximately 382 cases. However, they still raised the following issues with Petitioner (Issues raised are bolded below):

Issues Presented

1. Personal feelings are not to be documented in case record. County Case# 28465, dated 2-11-05.

Petitioner’s response: She was unaware of any such case, and that no one had brought this matter to her attention before now, even though Petitioner’s “personal feeling” documentation occurred in February 2005. When Petitioner requested the file to review so that she could more adequately respond, Patrick and Williamson said they could not locate the file.

2. 03-04-05 you were observed by supervisor in worker #88 office, that was on leave, using her phone[,] the number called was 654-6307. You were on that worker’s phone for 17 minutes and 58 seconds. Also, 9 calls to the same numbers from your office total 53 minutes and 50 seconds during date 2-28-05 to 3-31-05. This number belongs to [an] employee in the Food Stamp unit.

Petitioner’s Response: she did not call anyone from another worker’s office, unless she was asked to do so by a supervisor if she was in a particular office, or if her phone was out of order. She acknowledged calling the stated number from her office, but did not understand what the issue or the problem was, as it was a telephone number that was within the agency.

3. During the month of February 2005 per signed statement IMC II, Heather Bowen employee in the Food Stamp Dept. (Patrick unit) [Y]ou approached her with a written statement concerning a clothing issue you had, that had occurred two or [ ] years ago with supervisor, Ethel Patrick. You wanted Heather to sign this statement but she refused.

Petitioner’s Response: During February 2005, Petitioner asked Heather if she would sign a statement, if she ever needed one. However, Petitioner never wrote any statement for Heather to sign. Ms. Bowen said she did not feel comfortable signing anything unless she had to, but would talk with Petitioner’s attorney, if needed.

17 4. On 3-08-05 -- per signed statement Suzanne Brown, front desk receptionist, you called in reference to an e-mail from personnel unit. In reference to an e-mail to all staff about new employees beginning to work on March 14, 2005. You called Suzan[ne] and asked if one employee was the daughter of another county employee. Deena stated to Suzanne “[W]ell[,]we knew that was coming.

Petitioner’s Response: She advised Patrick that she asked Suzanne, during general conversation, who were the new workers and if she knew them.

5. 3-18-05 – Per signed statement from worker IMC II Mable Cribb, employee in the Food Stamp Dept. (Patrick unit). Received a call at home from co-worker Deena Ward, and was asked if she (Mable) was OK with her time – because Mrs. Scott, Director, and Ethel Patrick Supv. were not allowing any leave to be taken and you just called to warn her about being out.

Petitioner’s Response: She told Patrick and Williamson that Mable Cribb asked Petitioner to call her if anything happened while she was out. As a fellow co-worker, Petitioner called Mable to let her know what had happened that day and what was going on at the office. Since Petitioner recorded Ms. Cribb’s conversation, she offered to provide the tape recording to Ms. Patrick. However, Ms. Patrick dismissed the offer to review the tape.

6. 3-18-05—Statement made to Supv. Ethel Patrick by worker, Deena Ward that she would need to take a lot of leave next week.

Petitioner’s Response: She told Patrick she may need to take some time off the following week as she had a doctor’s appointment. This was an appointment that arose outside of her normally scheduled appointments. Petitioner was giving Patrick advance notice of her need for leave, since Petitioner had been taken off flextime. Petitioner also advised Patrick that she normally used her flex days for her ongoing and regular doctor’s appointments that began around late 2003.

7. 3-22-05–You approached Supervisor in hallway leaving worker #92's office[.] Quote ‘I was looking for you[.] [D]o I need to take petty time to go outside and roll my windows up because it was raining[.]’ I stated, ‘[N]o you did not have to take petty leave for that task. It was not raining because I asked when you returned was it raining and you said no.’

Petitioner’s Response: She admitted asking Patrick the above statement, but stated that it looked like it was getting ready to rain, and did she need to take petty time to go outside to roll up her windows. That is why Petitioner stated that it had not started to rain yet, when she returned from outside.

18 (Bold Emphasis Added to Questions as appeared in Respondent’s Exhibit 1, pp 1-3)

88. Pursuant to the April 1, 2005 Supervisory Conference, Patrick and Williamson implemented the following for Petitioner:

Corrective Action Plan

1. Discontinue being disruptive in our unit and the agency. 2. Disruptive behavior and attitude will not be tolerated now or in the future. 3. You shall not give false information to other workers, and state it came from supervisor, program manager, or director. 4. Personal feeling about a client is not to be entered in case record. 5. Discontinue using another workers telephone unless approved by supervisor. If your phone is out of order - notify supervisor or appropriate agency staff so it can be fixed. 6. Inform Supervisor of schedule[d] appointments medical or personal, in advance. 7. You conduct yourself in a professional manner.

“This action is to begin immediately!

Not complying with any of these request[s] will lead to disciplinary action –which could result in termination.”

(Emphasis added; Respondent’s Exhibit 1, pp 3-4)

89. Patrick and Williamson did not allow Petitioner an opportunity to provide a written response to support her verbal responses. Patrick and Williamson also refused to provide Petitioner with any documentation to substantiate the allegations against Petitioner. For those reasons, Petitioner refused to sign the Supervisory Conference Form.

90. The preponderance of the evidence proved that none of the listed “complaints” by Patrick and Williamson on April l1, 2005 were violations of any departmental policies. Instead, the substantial evidence at hearing established that these “complaints” by Patrick and Williamson were unsubstantiated, and were unrelated to any aspect of Petitioner’s job performance. Instead, a preponderance of evidence demonstrated that these “complaints” were just a part of Patrick’s need to control Petitioner.

91. At the contested case hearing, the evidence showed that on multiple occasions, Petitioner’s computer and telephone, as well other employees’ computers and telephones, experienced technical difficulties at the DSS office. (Carol Starnes Testimony)

Affect on Petitioner’s Relationships with Fellow Employees

19 92. On or about April or May 2005, after filing her many grievances, Petitioner observed that her coworkers, especially Patrick, Williamson, and Scott were treating her differently. Specifically, coworkers no longer would go out to lunch with Petitioner. Some of Petitioner’s coworkers advised Petitioner that they were told not to be seen with Petitioner. At the administrative hearing, Petitioner’s husband corroborated this treatment. Mr. Ward explained that while he was at Wal-Mart in July 2005, he talked with some of their good friends, who were also Respondent’s employees. These employees/friends used to come over and socialize with him and Petitioner, but were advised at work, not to associate anymore with Petitioner and her husband. (Petitioner’s testimony, Alfred Ward testimony)

April 14, 2005 – May 13, 2005- Interim Director Larry Moore

93. From April 14, 2005 through May 13, 2005, the County placed Marva Scott on administrative leave pending an investigation into DSS and Scott.

94. While Scott was on leave, the DSS Board appointed Larry Moore, the previous DSS Director, to serve as Interim Director.

95. At the request of the DSS Board, on or around April 22, 2005, Mr. Moore reviewed several personnel and case files. Petitioner’s personnel and case files were included in the files reviewed.

(a) Moore discovered e-mails between Ms. Scott and Ms. Patrick about observations relating to Petitioner. That email is as follows: On Friday, April 1, 2005 at 2:11 p.m., Scott replied back to Patrick regarding Patrick’s supervisory conference with Petitioner later that day. Scott advised Patrick that, “Thanks. I saw a few things I would like to mention to you.” (Petitioner’s Exhibit 41)

(b) At the administrative hearing, Scott did not recall sending the email in Petitioner’s Exhibit 41 to Ms. Patrick, and noted that Larry Moore was no longer serving as Interim Director when that email was sent.

96. As part of the file review process, Mr. Moore requested that Becky Williamson and Ethel Patrick review employees’ personnel files for flextime issues. Williamson’s review indicated that at least two employees should be reinstated to flextime. One of the employees had initially been removed from flextime without the supervisor stating a reason for the removal. The supervisors also discovered some prior adjustments had been made on an employee’s time sheets months after time sheets were submitted. The other flextime removals were consistent with the written flextime policy.

(a) Mr. Moore did not know the names of the particular employees whose flextime had been reviewed. During Moore’s final review of the flextime information, the employees’ names were excluded.

(b) Mr. Moore agreed with Williamson’s decision to reinstate those affected employees to flextime, with the employees’ knowledge, and in accordance to policy. Per

20 Moore’s authorization, Williamson, Patrick reinstated Petitioner to flextime.

97. The preponderance of the evidence showed that Petitioner was the employee who was removed from flextime without a stated reason and not in accordance with the flextime policy. At hearing, Petitioner’s time sheets reflected that in February 2005, just before Patrick removed Petitioner from flextime, Patrick adjusted Petitioner’s time sheet for the months of December 2004 and January 05.

98. During Moore’s tenure as Interim Director from April 14, 2005 through May 13, 2005, Petitioner again advised Moore that Patrick was continuing to harass her. Moore told Petitioner that she must file a written complaint for him to do something about it.

(a) By email dated April 21, 2005, Petitioner advised Moore that Patrick, Williamson, and Scott had prohibited her from sending emails to them. She explained that such prohibition was hindering her work, and that she was the only employee who had been so restricted. She asked Moore to advise her.

(b) In response, by email dated April 22, 2005, Moore advised Petitioner that Ms. Scott had not documented the email prohibition in Petitioner’s personnel file. Moore reinstated Petitioner’s right to email Patrick, Williamson, and the Director on an “as needed basis.” (Respondent’s Exhibit 21)

99. On April 26, 2005, Mr. Moore attempted to present Petitioner’s harassment and hostile work environment claims to the DSS Board during a special session. However, the Board refused Moore’s presentation. Two Board members advised Moore that Marva Scott and Patrick McCoy had informed them that Petitioner’s case had been dismissed and the Board would take no further action. By a majority vote, the DSS Board voted not to hear Petitioner’s case. (Respondent’s Exhibit 20)

100. On April 29, 2005, Petitioner filed and a subsequent EEOC Charge for Retaliation. (Respondent’s Exhibit 24)

101. By letter dated May 6, 2005, Moore advised Petitioner of the events at the April 26, 2005 DSS Board meeting. He also advised Petitioner that since neither she nor DSS Chairman Ken Skipper had received a dismissal letter from the Office of State Personnel (OSP) Petitioner should assume OSP has not dismissed her grievance. (Respondent’s Exhibit 20)

102. By letter dated May 9, 2005, Interim Director Moore advised Petitioner that the County had received her April 2005 EEOC charge/complaint on May 5, 2005. Moore advised that County Manager Billy Joe Farmer had requested Moore provide him with Petitioner’s personnel file from DSS, including her daily assignment sheets, time cards, attendance and payroll records for the period March 1, 2003 - April 30, 2005. (Respondent’s Exhibits 18-19)

103. On or around May 11, 2005, Interim Director Larry Moore provided those records to the County Manager (Petitioner’s Exhibit 18), and noted in Petitioner’s personnel file that he had pulled such records for Farmer to respond to Petitioner’s EEOC charge.

21 104. On May 13, 2005 was Moore’s last day as Interim DSS Director. When he left, Moore left copies of all matters he had dealt with as Interim Director, any mail addressed to Scott, and any documents from the State, in neat piles on top of Scott’s desk at DSS. Specifically, Moore left Mr. Farmer’s request for information from Petitioner’s personnel file (Respondent’s Exhibit 18), and any other information related to that matter on Ms. Scott’s desk at DSS. By oversight, Moore did not leave Respondent’s Exhibits 19 and 20 on Scott’s desk.

105. At the next DSS Board meeting in May, Moore advised Scott where everything was located. Scott did not speak to Moore, and did not take his telephone calls anytime thereafter.

Petitioner’s Suspension

106. On May 16, 2005, Marva Scott returned from leave. Immediately upon her return, she instructed Ethel Patrick to review all files that Larry Moore had pulled, and to reverse everything that Moore had done while he was Interim Director.

107. Ms. Scott did not ask Edie Hewitt or Becky Williamson to review these files.

108. Around 4:00 p.m. on May 17, 2005, Becky Williamson entered Petitioner’s office, and informed Petitioner that Ms. Scott wanted to meet with her in the Plum Room immediately. When Petitioner entered the Plum Room, Marva Scott, Becky Williamson, and Ethel Patrick were awaiting her arrival. Ms. Scott’s first words were, “Unless you are leaving to go home, you can take your pocketbook back to your office.” Petitioner responded, “I prefer to keep my pocketbook with me.” Ms. Scott responded, “We’re meeting to discuss you. I don’t need your pocketbook here or your tape recorder or anything else. If you have a tape recorder on, I want you to turn it off now!”

(a) Petitioner responded, “You’re asking me to turn off my tape recorder?” Ms. Scott responded, “I am. Did you turn your tape recorder back on?” She further stated, “You’ve got one of two choices, if that tape recorder is on I want it off now. Give me your tape recorder.” Petitioner replied, “No, I will not take anything out of my pocketbook.”

(b) This conversation proceeded back and forth in the same manner, until Scott stated, “Let me ask you a few questions because the tape recorder really doesn’t matter. On 4-05- 05, you have a narrative in here on Webb. Tell me where you got that information.” As Scott spoke, she flung client Webb’s Running Record/Case History (Respondent’s Exhibit 2) into the air.

(c) Petitioner responded by reading from the Webb’s Running Record as follows:

Keyed with three month certification period, client states that supervisor, Ethel Patrick is helping her with her husband’s disability case, hasn’t received approval as of yet. Signed Deena Ward.

Petitioner told Scott, “The client stated this.”

22 (d) Ms. Scott then asked Petitioner, “Now tell me about the next one on 4-12-05.” Petitioner read:

Webb in office with Ethel Patrick, supervisor, this afternoon at 4:45, client waved to me as she went by my office. Signed Deena Ward.

(e) During this conversation, Petitioner advised Scott, Patrick, and Williamson that she merely wrote down what she had observed, since certain observations may or may not impact a client’s benefits. Additionally, if she felt it was necessary to document a client’s conduct, then she would document it, as she had begun to document everything. Specifically, Petitioner was aware that Client Webb had a previous fraud noted in the file. (See Petitioner’s Exhibit 26, p 3)

(f) The questioning became very heated until Ms. Scott began screaming at Petitioner. Ms. Scott informed Petitioner that “she had better come up with some comment,” other than the one Petitioner offered, “because if she put dictation down then, she must have proof of what she dictated.” Scott asked Petitioner where she had obtained the information for entries in the Webb file from 4-12-05 and 4-5-05.

109. On May 20, 2005, at 2:30 pm, Petitioner received a memorandum (Respondent’s Exhibit 6) from Marva Scott notifying Petitioner of a pre-disciplinary conference for that afternoon at 4:30 p.m. to discuss Petitioner’s unacceptable personal conduct. (Petitioner’s Exhibit 27) In that notice, Scott summarized the April 1, 2005 supervisory conference meeting, and Scott’s May 17, 2005 meeting with Petitioner. In her memo, Scott recounted the May 17, 2005 supervisory meeting between Petitioner and Scott. Scott specifically noted that Petitioner told Scott: (1) Ms. Webb made the statements documented by Petitioner in the file, (2) Petitioner documents everything, and (3) Scott asked Petitioner,” So are you telling me you falsify records all the time?” (Respondent’s Exhibit 6) In her memo, Scott also advised Petitioner that “You will have an opportunity to respond during our meeting to the above allegations.” (Respondent’s Exhibit 6)

110. On May 20, 2005, Scott conducted a pre-disciplinary conference with Petitioner. Patrick and Williamson also attended. Scott read her May 20, 2005 letter to Petitioner and asked Petitioner had any response. Petitioner informed Scott that there was no falsification in any records on her part. Scott interrupted Petitioner, while Patrick and Williamson were writing everything that was said by Petitioner. Ms. Scott indicated to Petitioner, “Go ahead,” but Petitioner said she was finished. Scott stared back at Petitioner. Petitioner then advised Scott that anything else would come from her attorney. Scott asked again, if Petitioner had anything else to say, “Yes or No!” Petitioner repeated that anything further would come from her attorney. (Respondent’s Exhibits 6, 7, 15 )

111. On May 23, 2005, Scott, Patrick and Williamson met Petitioner again, and gave Petitioner a letter that Scott was suspending Petitioner, without pay for unacceptable personal conduct. The suspension letter was lying on the table when Petitioner walked into Scott’s office. Petitioner’s suspension would begin on May 24 2005 and end on June 6, 2005.

23 112. In accordance with county policy, an employee is allowed a written response (See Personnel Administration Policy for the County of Columbus, Pg. 31 Section 9, “Failure in Personal Conduct”). In violation of that policy, Scott did not afford Petitioner the opportunity to respond to the allegations against Petitioner in writing, before she issued her decision to suspend Petitioner.

113. In addition, Scott’s May 23, 2005 letter of suspension did not set forth the specific acts by Petitioner which were the reasons for Petitioner’s suspension. Scott did not specify with particularity what personal conduct Scott found to be unacceptable, or if such conduct was detrimental or disruptive to the agency. Neither did she specify with any detail what policy Petitioner had violated, or how Petitioner’s conduct rose to just cause in violation of county, DSS, or state policy. Scott’s letter did not indicate if she conducted an internal investigation into these allegations against Petitioner, and what parts of that investigation were persuasive and sufficient to prove Petitioner should be suspended without pay. Scott admitted at hearing that she did not review Petitioner’s personnel file before she decided to suspend Petitioner without pay.

114. In the May 23, 2005 suspension letter, Scott wrote:

During this meeting, you stated the findings were inaccurate in that you say you did not do the narrative found in the client’s record dated April 5, 2005 and April 12, 2005.

(Emphasis added; Respondent’s Exhibit 7) A preponderance of the evidence at hearing contradicted Scott’s May 23, 2005 statement. First, Petitioner did not deny making the narrative in Client Webb’s file when she talked to Scott on May 17, 2005. Second, in Scott’s May 20, 2005 letter, she wrote that Petitioner did the write the narrative in the Webb file. When confronted about these contradictions at hearing, Scott acknowledged that she wrote both letters, but offered no reasonable explanation for that difference.

115. The evidence at hearing supported Petitioner’s assertion that her April 5, and April 12, 2005 entries in the Webb file were based on her observations and conversation with Ms. Webb on those days. Petitioner had worked with Webbs previously at DSS, and the Webbs were on DSS Recertification during April 2005.

(a) Petitioner’s Exhibit 26 page 6 showed that on April 5, 2005, the “CLT” i.e. client delivered a consent form, signed by David Webb, to Respondent’s office on April 5, 2005. (Petitioner’s Exhibit 26, pp 3-6). Ms. Webb was listed on Petitioner’s voicemail logs for those days (Petitioner’s Exhibit 1) as Petitioner having returned Webb’s phone calls about receipt of benefits. In addition, Respondent’s system’s printout showed a DSS worker took action on the Webb file on April 5 and April 12, 2005.

(b) The fact that Petitioner’s April 5, 2005 and April 12, 2005 Day Sheets did not reflect that Ms. Webb visited Respondent’s office on those dates was insignificant. (Respondent’s Exhibit 3) It was a common practice at DSS for some clients not to be listed on

24 Day sheets or intake logs if: (1) they visited Respondent’s office without an appointment, (2) they are met in the waiting area, and taken straight back to see a caseworker, or (3) they are “Recertification” appointments.

Procedural Problems with Suspension

116. In her letter, Scott advised, “Attached, you will find a copy of your appeal rights.” (Respondent’s Exhibit 7) Ms. Scott attached to Petitioner’s letter, a poor photocopy of one page from the Columbus County’s Personnel Administration Policy. The information was not legible, and was incomplete as to whether Petitioner should follow a DSS or county grievance and appeal process.

117. Petitioner’s Exhibit 14 was part of the grievance policy DSS had provided Petitioner as a county employee. (Scott’s January 11, 2006 Testimony) Petitioner’s Exhibit 14 page one, No. 4 states that an employee has 15 calendar days from the date she receives written notice of any disciplinary action, to file an appeal with her county/agency’s grievance procedure, whichever is applicable. Number 7 of Petitioner’s Exhibit 14 stated that:

Time limits for filing appeals do not start until the employee receives written notice of any applicable appeal rights.

(Petitioner’s Exhibit 14, 2, Number 7) However, Petitioner’s Exhibits 7 and 37 provide that an employee subject to the Personnel Act must appeal an adverse action within 10 days of receipt of notification of such action.

118. Petitioner was previously informed that she needed to follow the DSS grievance process. However, she was met with resistance by her supervisors when trying to gain clarification on which of the three policies (county, state, or DSS) she was to follow. (Petitioner’s Exhibits 7, 37)

119. During her suspension, Petitioner asked Virginia Taylor with the County Personnel Department, which grievance process she needed to follow to appeal a suspension based on retaliation.

120. Pursuant to Ms. Taylor’s instruction, on or about June 6, 2005, Petitioner hand-delivered to Ms. Taylor, her grievance against Ms. Marva Scott, appealing Petitioner’s suspension. (Petitioner’s Exhibit 28, Taylor Acknowledgment). When Petitioner delivered her grievance to Taylor, Taylor did not give Petitioner any additional documents explaining regarding her grievance or the process.

121. On June 8, 2005, Petitioner received a letter from Taylor, and an attached county’s appeals policy outlining the process for filing an appeal. Taylor advised Petitioner that she needed to provide a copy of her appeal to Ms. Marva Scott. Ms. Scott was copied on Taylor’s letter Petitioner. (Petitioner’s Exhibit 29)

122. Before Taylor’s letter, Petitioner did not realize that a “grievance” and an “appeal” were

25 deemed to be one and same.

123. On June 10, 2005, in accordance with Taylor’s instructions, Petitioner sent to Ms. Scott, a copy of the original grievance letter, that she had sent to Taylor.

124. On June 7, 2005, Petitioner had reported back to work. Upon her return to work, Petitioner found unopened mail, large stacks of files, and several telephone messages to be returned. She was first met with a request by Ethel Patrick to turn in her day sheets.

(a) Petitioner’s day sheets were not in her office where she left them prior to being suspended. All of the sheets for the period before her suspension were missing from Petitioner’s desk and papers. When Petitioner told Patrick about this, Patrick told Petitioner to estimate her time and do the best she could in locating whatever else she needed. In light of her recent incidents, Petitioner did not feel comfortable estimating her time sheets.

(b) Petitioner requested that the replacement sheets be signed by Ms. Patrick indicating approval of these actions. Initially Ms. Patrick refused to do this.

125. On June 10, 2005, Ms. Patrick agreed to sign and approve Petitioner’s replacement sheet. That same day, Ethel Patrick and Tommy Thompson, the computer technician, called Petitioner into a meeting to review Petitioner’s time sheets. Patrick and Thompson acknowledged they had not located Petitioner’s original time sheets, and agreed that Petitioner would be allowed to estimate her time based on the information she had available on her logs and other data sheets. All other sheets would reflect notations that the original sheets were missing.

126. Concurrent with agreeing to sign the estimated day sheets, Ms. Patrick informed Petitioner that Petitioner had been officially removed from the Employee Relations Committee (ERC) for the Department. Petitioner had been elected to the ERC by her peers, and viewed being a member of the ERC as a privilege. Upon hearing this news, Petitioner felt she was being denied a privilege. Even though Petitioner was later told that the entire committee had been disbanded by Ms. Scott, she observed the committee being reorganized with new members.

(a) The committee once known as ERC still existed “in substance” to support social and civic events for the department. All immediate past members remained on the committee, except for Petitioner. The emphasis of the committee became less focused on employee morale and employee concerns, and more focused on promoting and facilitating social and civic activities for the department.

127. On June 16, 2005, Ms. Scott advised Petitioner that since she had not filed her written notice of appeal within 10 days of receiving Scott’s decision to suspend Petitioner, Scott was not considering Petitioner’s appeal. (Respondent’s Exhibit 16; Petitioner’s Exhibit 10)

128. On June 29, 2005, Marva Scott received a copy of Petitioner’s EEOC charges.

129. In July 2005, one month after Scott suspended Petitioner, Scott revised some of Respondent’s policies, and implemented several new DSS policies. (Petitioner’s Exhibit 22) She

26 amended the policies of flextime, absenteeism, leave without pay and dress cod. She created a new policy on tape recorder, camera or picture taking devices. At hearing, Scott explained that she revised some existing policies, and created new policies for simpler and more efficient operation of the agency. She further explained that revision of said policies had been an ongoing process since 2004.

(a) However, a preponderance of the evidence showed that at least two of the policies Scott revised, directly addressed recent personnel issues of which Petitioner had been involved. First, Scott amended the Flextime policy, granting supervisors the discretion to remove employees from flex due to an employees’ absenteeism. The old Flex policy did so authorize. February through March 2005, Petitioner had appealed Patrick’s removal of Petitioner from flextime to Ms. Scott.

(b) Second, Scott created the Tape Recording policy that prohibited employees from bringing personal tape recording devices onto the premises without a supervisor’s authorization. (Petitioner’s Exhibit 22) On May 17, 2005, Scott and Petitioner argued about whether Petitioner could tape record Petitioner’s supervisory conference with Patrick, Williamson, and Scott. Respondent presented no other evidence that private tape recording was an issue with other DSS employees.

130. On July 11, 2005, DSS Board Chairman Ken Skipper advised Petitioner that the Board would hear her grievance at its July 12, 2005 meeting. (Respondent’s Exhibit 22) Due to the late notice, Petitioner requested and received a continuation to the next Board meeting.

131. At the August 2005 DSS Board meeting, Petitioner and her husband attended, intending to present Petitioner’s case of harassment, hostile work environment, and retaliation to the Board. The Board conducted its meeting, but did not hear Petitioner’s case. After the meeting was over, DSS Attorney tried to advise Petitioner why her case had not been heard and talk to Ms. Scott. Marva Scott ordered Petitioner, her husband, and the DSS Attorney out of the building, because she needed to lock up the building.

132. Before this contested case hearing began, Petitioner repeatedly requested Ms. Patrick to perform her 2005 annual evaluation. However, as of the last hearing date, Patrick had not performed Petitioner’s annual evaluation. Petitioner’s annual evaluation was due September 2005. Patrick failed to give Petitioner any explanation why such evaluation had not completed.

133. On June 23, 2005, Petitioner filed a contested case petition with the Office of Administrative Hearings, alleging that Patrick, Williamson, and Scott had suspended her from employment without just cause, created a hostile work environment, retaliated against her for filing grievances, and that Patrick had sexually harassed her. (Petition)

134. On September 29, 2005, Marva Scott amended the DSS’ policies for employees appealing adverse actions within Respondent DSS. (Petitioner’s Exhibit 17) The new policy required that all employees appealing an adverse action not based on discrimination must first file his/her appeal with Ms. Scott, and Ms. Scott will make the final decision on the appeal. Only

27 after Ms. Scott renders her decision, may an employee appeal the matter to the State Personnel Commission.

Analysis

135. The preponderance of the evidence showed that Victoria Webb was not a credible witness for several reasons. First, at hearing, Ms. Webb explained that she visited the DSS office “on and off” from 1990 through 2005 to apply for and receive DSS benefits for she and her husband. She stressed that she, but not her husband, was the one from their family that visited the DSS office during that time. Webb adamantly denied visiting the DSS Office on April 5, and April 12, 2005. Yet, DSS documentation proved that on April 5, 2005, “the CLT” i.e. client brought a consent form into the DSS office. By necessary implication, Webb admitted that she, not her husband, would have been the “client” who visited the DSS office on April 5, 2005.

(a) Second, Ms. Webb acknowledged she had experienced some problems receiving excess public assistance benefits from social services in the past. While she could recall various details about her visits to the DSS office, she conveniently could not recall the specifics about her problems receiving DSS benefits.

(b) Third, the Webb’s DSS file noted that a fraud form had been filed in the Webb’s case, and someone from the fraud division had been alerted. (Petitioner’s Exhibit 26, p 3; Petitioner’s Testimony) Fourth, Ms. Webb admitted that she and Ms. Patrick attended the same church, and that their church held a fund-raising benefit to support Webb and her husband while he was trying to obtain disability benefits. Ms. Webb admitted that once she told Petitioner that she and Ms. Patrick attended the same church, Petitioner treated her more nicely. This admission proved that Webb would use any factor to her benefit.

(c) For the above reason, Webb’s testimony that she did not visit the DSS office on April 5, and 12, 2005 was not believable.

136. The inconsistency in Patrick’s testimony also made her an unbelievable witness. First, Patrick emphasized at hearing that she followed her supervisor’s, Becky Williamson’s, instruction on how to measure employees’ skirts and enforce the dress code. During rebuttal testimony, Patrick explained and demonstrated how Williamson directed her to use a ruler to measure employee’s skirts from the end of the skirt to the top of the kneecap. Yet, during her rebuttal testimony, Becky Williamson confidently asserted that she never instructed Ms. Patrick how to measure an employee’s skirt. Williamson explained that a person can use common sense to judge and “eyeball” two inches above the knee.

(a) During her rebuttal testimony, Patrick explained that she measured two employees’ skirts for length within the last year (2004-2005). Yet, during her testimony later, she stated that she did not measure any other employee’s skirt or dress except Petitioner’s skirt during 2004-2005, because “there was no need to.” (Patrick Rebuttal Testimony)

(b) Patrick conceded that in March 2003, she apologized to Mr. Moore, at his retirement party, because Petitioner was wearing a halter top, exposing her bare back and bare

28 shoulders. However, the evidence at hearing proved that Petitioner was wearing a sleeveless blouse, not a halter blouse, at that party.

(c) During her rebuttal testimony, Patrick could not recall whether other employees ever told her that Patrick was treating Petitioner differently, and that Petitioner wore appropriate clothing. However, the evidence showed that on March 30, 2005, Patrick’s unit staff told her she was treating Petitioner differently, and Patrick apologized to such staff. Carol Starnes repeatedly told Patrick verbally and by letters that she was treating Petitioner differently. The preponderance of the evidence established that Patrick assigned Petitioner a heavier caseload, “dumped” other cases on Petitioner to work on, touched Petitioner inappropriately in the pretext of enforcing the dress code, and harassed Petitioner about petty issues such as using other workers’ computers and emails. In essence, Ethel Patrick liked to control the daily operation of DSS, her employees, and especially Petitioner.

137. Based upon testimony, Marva Scott is an intelligent woman who managed Respondent DSS with a very hands-on approach. Ms. Scott admitted that she was often in the DSS Office, “…most of the time, a majority of the time, unless I have meetings.” Yet, she acknowledges that she delegated the daily operational responsibilities to her supervisors. Nevertheless, Scott also accepts that she is ultimately responsible for her agency and her caseworkers’ handling of their cases.

Given Scott’s intelligence and management style, it is unreasonable to believe that she did not know about Patrick’s constant and continuous harassment, and sexual harassment of Petitioner. Given the number of grievances Petitioner filed through the DSS chain of command, and the pettiness of Patrick and Williamson’s decisions, it is unreasonable to believe Scott did not know, and should have known of the hostile work environment that Patrick, and indirectly Williamson who supported Patrick, created for Petitioner at DSS. Given Scott’s intelligence, attendance at DSS Board meetings, and role at those meetings, it is unreasonable to believe that Scott did not see the letters/documents that Moore left on her desk about Petitioner’s EEOC complaints, or did not know about her April 1, 2005 email to Ethel Patrick before Patrick’s April 1, 2005 supervisory conference with Petitioner.

138. The preponderance of the evidence showed since 2001, Ethel Patrick harassed, sexually harassed, and created a hostile work environment for Petitioner. Petitioner wore dress attire at work that was professional and appropriate. (Carol Starnes, Bill Memory Testimony) Williamson and Patrick harassed Petitioner and created a hostile work environment from 2001-2005 by subjecting Petitioner to unwarranted scrutiny, heavier and unreasonable caseloads, affecting Petitioner’s relationship with her work peers, and denying or limiting Petitioner work privileges such as flextime, computer and email privileges.

139. The preponderance of the evidence showed that Ms. Scott and Ms. Williamson knew, and should have known of Ms. Patrick’s unacceptable personal conduct. By doing nothing, Williamson and Scott allowed and essentially condoned Patrick’s harassment of Petitioner in the workplace. The evidence also proved that Respondent retaliated against Petitioner for filing her EEOC, internal, and contested case grievances, in opposition to her harassment, and sexual harassment by Ms. Patrick.

29 140. Within the last two years, Petitioner’s stress and depression caused her to hide in the bathroom at work to avoid Patrick. She has become easily agitated and upset, and often has left work because of the treatment by Respondent’s Patrick, Williamson, and Scott. Petitioner tried to stay busy with clients so her contacts with Patrick at work would be limited. Since 2003, Petitioner was forced to take more leave to deal with the stress and harassment at work, and she often called her therapist during work, because she was so upset and anxious. Petitioner found it increasingly difficult to breathe and talk when Patrick entered a room at work. As such, the hostile work environment which Petitioner experiences, significantly interferes with Petitioner’s ability to work.

141. Similarly, at home Petitioner has become impatient with her young daughter, and did not spend time with her daughter. Within the last 2 years, the increased stress and anxiety caused Patrick at work has caused Petitioner to shut herself off from her husband and young daughter. Petitioner has become depressed to the point of isolating herself in the bedroom on a constant basis. Petitioner’s husband has noticed a tremendous difference in Petitioner the last two years.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case pursuant to Chapter 126 and 150B of the North Carolina General Statutes.

2. Petitioner is local government employee, and subject to the protections of the State Personnel Act pursuant to N.C. Gen. Stat. § 126-5(a)(2)b.

Suspension Without Just Cause Claim

3. Pursuant to N.C. Gen. Stat. § 126-35, no career State employee subject to the State Personal Act shall be suspended for disciplinary reasons, except for just cause.

4. Respondent has the burden of showing by a preponderance of the evidence that it had “just cause” to suspend Petitioner. N.C. Gen. Stat. § 126-35(d); N.C. Gen. Stat. § 150B-29(a).

5. N.C. Gen. Stat. § 126-35 does not define “just cause.” 25 NCAC 01I .2301(b) provides that unsatisfactory job performance, and unacceptable personal conduct are the two bases for the discipline or dismissal of employees for just cause. The distinction between the categories of “’just cause’ provides an applicable test for determining whether a dismissal is for a ‘good or adequate reason having a basis in fact under particular circumstances.’” Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 679, 443 S.E.2d 114, 121 (1994)

6. 25 NCAC 01I .2301(a) provides:

Any employee, regardless of occupation, position, or profession may be warned, demoted, suspended or dismissed by the appointing authority. Such actions may be taken against employees with permanent status, as defined in 25 NCAC 1I . 2002(a)(2), only for just cause. The degree and type of action taken shall be

30 based upon the sound and considered judgment of the appointing authority in accordance with the provisions of this Rule.

7. 25 NCAC 01I .2302(a) also states that employees may be dismissed for a current incident of unacceptable personal conduct. It defines unacceptable personal conduct as:

(1) conduct for which no reasonable person should expect to receive prior warning; or

(2) job related conduct which constitutes violation of state or federal law; or

(3) conviction of a felony or an offense involving moral turpitude that is detrimental to or impacts the employee's service to the agency; or

(4) the willful violation of known or written work rules; or

(5) conduct unbecoming an employee that is detrimental to the agency's service; or

(6) the abuse of client(s), patient(s), student(s) or a person(s) over whom the employee has charge or to whom the employee has a responsibility, or of an animal owned or in the custody of the agency; or

(7) falsification of an employment application or other employment documentation; or

(8) insubordination which is the willful failure or refusal to carry out a reasonable order from an authorized supervisor. Insubordination is considered unacceptable personal conduct for which any level of discipline, including dismissal, may be imposed without prior warning; or

(9) absence from work after all authorized leave credits and benefits have been exhausted.

8. 25 NCAC 01I .2302(b) requires that prior to dismissing an employee with permanent status for unacceptable personal conduct, the agency director or the designated representative shall conduct a pre-dismissal conference with the employee. This conference shall be held in accordance with the provisions of 25 NCAC 01I .2308. 25 NCAC 01I .2302 further requires that:

(d) Dismissals for unacceptable job performance require written notification to the employee. Such notification must include specific reasons for the dismissal and notice of the employee's right of appeal.

31 (e) Failure to give specific written reasons for the dismissal, failure to give written notice of applicable appeal rights, or failure to conduct a pre- dismissal conference constitute procedural violations with remedies as provided for in 25 NCAC 01B .0432. Time limits for filing a grievance do not start until the employee receives written notice of any applicable appeal rights. (Emphasis added)

9. 25 NCAC 01I .2308(c) requires that the agency “furnish the employee a statement in writing setting forth the specific acts or omissions that are the reasons for the suspension.” Similarly, N.C. Gen. Stat. § 126-35 provides:

In cases of such disciplinary action, the employee shall, before the action is taken, be furnished with a statement in writing setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employee’s appeal rights.

10. In this case, Respondent violated N.C. 126-35, 25 NCAC 01I .2308(c), and 25 NCAC 01I .2302 when it failed to give Petitioner the specific written reasons Respondent was suspending Petitioner without pay. Scott’s May 23, 2005 letter of suspension did not set forth the specific acts by Petitioner that were the reasons for Petitioner’s suspension. Scott did not specify with particularity what personal conduct Scott found to be unacceptable, or if such conduct was detrimental or disruptive to the agency. Neither did she specify with any detail what policy Petitioner had violated, or how Petitioner’s conduct rose to just cause in violation of county, DSS, or state policy.

11. Respondent also violated N.C. 126-35, 25 NCAC 01I .2308(c), and 25 NCAC 01I .2302 when it failed to properly give Petitioner her applicable appeal rights in its May 23, 2005 suspension letter. The Fourth Circuit Court has explicitly provided guidance on the importance of properly giving aggrieved parties, notice of the statute of limitations for filing their grievances. In CM, a minor, by and through her parents, JM and EM v. The Board of Education of Henderson County, 241 F.3rd 374 (4th Circuit 2001), that Court held:

The very reason that the North Carolina Supreme Court has refused to extend statutes of limitations by construction is to ensure that parties have notice of the time limits applicable to their cases. Unless parents are informed that an agency decision in their case has triggered the limitations period, simply notifying them of the general right, procedure, and time limitation to request a due process hearing is worthless.

In that case, the Court ruled that handing parents a generalized Parents’ Rights Handbook as attachment to agency’s “decision” letter, was inadequate to trigger the limitations period. Id.

12. Although this case is not a special education case, the reasoning in CM is equally applicable in this case. 25 NCAC 01I .2309 (e)(3) provides that “An agency shall furnish to an employee, as an attachment to the written documentation of a grievable disciplinary action, a copy of the agency grievance procedure.” However, using the CM reasoning, Respondent’s

32 attachment of a poor, illegible photocopy of one page from the Columbus County’s Personnel Administration Policy, failed to give the detailed notice requirements particular to this Petitioner that would trigger the limitations period. In addition, Scott failed to explain in her suspension letter whether Petitioner was required to follow a DSS or county grievance and appeal policy, and which policy the attached described. As such, Respondent did not sufficiently advise Petitioner of her appeal right, and the required time deadlines for filing her appeal.

13. As Petitioner was a county employee, Petitioner was subject to the county appeal procedures, and had ten working days from receipt of notification of her suspension to file her appeal with Scott. (Petitioner’s Exhibits 7, 37) Pursuant to county policy, the time limit for filing one’s appeal does not start until one is given one’s appeal rights. (Petitioner’s Exhibit 14) May 31, 2005 was a State observed holiday.

(a) The preponderance of the evidence showed that Petitioner did not sufficiently receive her appeal rights until County Personnel Representative Virginia Taylor gave Petitioner such appeal rights on June 8, 2006. Under the county’s policy, had until June 20, 2005 to filed her appeal with Ms. Scott.

(b) Petitioner timely appealed her suspension with Marva Scott on June 10, 2005 as she filed such appeal within 10 working days of receiving her appeal rights.

14. Based upon the foregoing, Respondent violated Petitioner’s procedural due process rights when it failed to give her specific reasons for the basis of Petitioner’s suspension, and failed to give Petitioner her appeal rights.

15. In addition to the procedural due process violations, Respondent lacked just cause to suspend Petitioner without pay. Respondent failed to prove by a preponderance of the evidence that it had just cause to suspend Petitioner without pay. Instead, the preponderance of the evidence in the above Findings of Fact, proved that Petitioner did not engage in unacceptable personal conduct as defined in 25 NCAC 01I .2302(a).

Harassment and Sexual Harassment Claims

16. The courts of North Carolina look to decisions of the courts of the United States for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases. The ultimate question in a discrimination case is whether the plaintiff was the victim of intentional discrimination. Department of Correction v. Gibson, 308 N.C. 131, 136- 47, 301 S.E.2d 78, 82-88 (1983).

17. N. C. Gen. Stat. § 126-34.1(10) provides that an employee may file an action directly with OAH when the allegations involve harassment in the workplace based on age, sex, race, color, national origin, religion, creed or handicapping condition. N. C. Gen. Stat. § 126-36(b)(2) authorizes an employee to bring an action that alleges harassment in the workplace based on age, sex, race, color, national origin, religion, creed or handicapping condition and for alleged retaliation based on opposition to such harassment. In applying North Carolina discrimination

33 law, the Undersigned is guided not only by North Carolina law and cases, but also by federal employment discrimination decisions which are applicable and authoritative.

18. The United States Supreme Court has recognized that sexual harassment that creates a hostile or abusive atmosphere in the workplace may give rise to a claim of sex discrimination under Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986).

19. A hostile work environment based upon harassment is present when “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Harris v. Forklift Systems, Inc ., 510 U.S. 17, 114 S. Ct. 367 (1993).

20. To establish a hostile work environment claim, Petitioner must prove that: (1) the conduct in question was unwelcome; (2) the harassment was based on race and sex; (3) the harassment was sufficiently severe or pervasive to create an abusive working environment; and (4) there is some basis for imposing liability on the employer. White v. Federal Exp. Corp., 939 F.2d 157, 159- 60 (4th Cir. 1991).

21. In determining whether a workplace environment is sufficiently ‘hostile” or “abusive” one looks to the totality of the circumstances including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Harris , 510 U.S. 17 (1993).

22. In this case, Petitioner proved by a preponderance of the evidence that Ethel Patrick harassed Petitioner since 2001 based on her gender in a manner that was sufficiently severe or pervasive to alter the conditions of her employment. The preponderance of the evidence showed since 2001, Ethel Patrick harassed, sexually harassed, and created a hostile work environment for Petitioner. Williamson and Patrick harassed Petitioner and created a hostile work environment from 2001-2005 by subjecting Petitioner to unwarranted scrutiny, heavier and unreasonable caseloads, affecting Petitioner’s relationship with her work peers, and denying or limiting Petitioner work privileges such as flextime, computer and email privileges.

23. Given Marva Scott’s intelligence and management style, it is unreasonable to believe that she did not know about Patrick’s constant and continuous harassment, and sexual harassment of Petitioner. Given the number of grievances Petitioner filed through the DSS chain of command, and the pettiness of Patrick and Williamson’s decisions, it is unreasonable to believe that Scott did not know, and should have known of the hostile work environment that Patrick, and indirectly Williamson who supported Patrick, created for Petitioner at DSS. Given Scott’s intelligence, attendance at DSS Board meetings, and role at those meetings, it is unreasonable to believe that Scott did not see the letters/documents that Moore left on her desk about Petitioner’s EEOC complaints, or did not know about her April 1, 2005 email to Ethel Patrick before Patrick’s April 1, 2005 supervisory conference with Petitioner.

24. The preponderance of the evidence showed that Ms. Scott and Ms. Williamson knew, and should have known of Ms. Patrick’s unacceptable personal conduct. By doing nothing,

34 Williamson and Scott allowed and essentially condoned Patrick’s harassment of Petitioner in the workplace.

Retaliation

25. A prima facie case of retaliation is established when an employee shows: (1) the employee engaged in protected activity; (2) she suffered an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse action. Bryant v. Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536, 543 (4th Cir. 2003); King v. Rumsfeld, 328 F.3d 145, 150- 51 (4th Cir. 2003).

26. As in other civil rights contexts, to show protected activity, the Petitioner in a retaliation case need "only ... prove that he opposed an unlawful employment practice which he reasonably believed had occurred or was occurring." Bigge v. Albertsons , Inc. , 894 F.2d 1497, 1503 (11th Cir.1990); Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985), (stating that a Title VII oppositional retaliation claimant need not show that the underlying claim of discrimination was in fact meritorious in order to prevail). Many courts thus see the inquiry as whether one in good faith, subjectively believed that the Respondent had engaged in a discriminatory practice, and whether the belief was objectively reasonable in light of the facts. W eeks v. Harden Mfg. Corp., 291 F.3d 1307, (11th Cir.2002); Peters v. Jenney, 327 F.3d 307, (4th Cir. 2003).

27. After a prima facie showing is made, a presumption arises that the State unlawfully discriminated or retaliated against the employee. To rebut the presumption of discrimination or retaliation, the employer must produce a legitimate, non-discriminatory reason for its actions. Thereafter, the employee may prevail by showing that the proffered reason was not the true reason for the employment decision, but is merely a pretext for discrimination or retaliation. Enoch v. Alamance County Dep't of Soc. Servs., 164 N.C. App. 233, 595 S.E.2d 744, (2004); St. Mary’s Honor Center v. Hicks , 509 U.S. 502, 113 S. Ct. 2742 (1993).

28. To qualify as a protected activity, an employee need not engage in the formal process of adjudicating a discrimination claim. Protected activity encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one’s opinions in order to bring attention to an employer’s discriminatory activities. Laughlin v. Metropolitan Washington Airports Auth. , 149 F.3d 253 (4th Cir. 1998)

29. Petitioner proved by a preponderance of the evidence that Respondent retaliated against Petitioner for filing her EEOC, internal, and contested case grievances where Petitioner opposed her harassment, and sexual harassment by Ms. Patrick. In response to Petitioner’s multiple grievances, both internally and externally to DSS, Respondent subjected Petitioner to unwarranted scrutiny, heavier and unreasonable caseloads, affecting Petitioner’s relationship with her work peers, and denying or limiting Petitioner work privileges such as flextime, computer and email privileges.

30. Respondent failed to present legitimate, non-discriminatory reasons for its actions. The preponderance of the evidence showed that Respondent’s disciplinary actions against Petitioner, including the many supervisory conferences, were petty and retaliatory in nature. The evidence

35 showed that Petitioner did not engage in the unsatisfactory job performance actions as Respondent claimed. Assuming Respondent presented legitimate, non-discriminatory reasons for its actions, Petitioner showed by the preponderance of the evidence that such reasons were pretexual and retaliatory in nature.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that Respondent lacked just cause to suspend Petitioner from employment without pay. As such, Respondent’s decision to suspend Petitioner should be REVERSED. Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that Petitioner has proven by a preponderance of the evidence that she was subjected to harassment, and sexual harassment in the nature of a hostile work environment by Respondent, and Respondent retaliated against Petitioner for opposing such treatment by Respondent.

Petitioner is entitled to back pay for the ten days she was suspended without pay. Petitioner’s personnel file should be appropriately rectified to reflect that she was suspended without just case. Further, pursuant to 25 N.C.A.C. 1B.0414, Petitioner should be awarded reasonable attorney fees, based upon Petitioner’s attorney’s submission of an itemized statement of the fees and costs incurred in representing the Petitioner, in a Petition to the North Carolina State Personnel Commission for Attorney Fees.

ORDER AND NOTICE

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it 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. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

Pursuant to N.C.G.S. 126-37, the State Personnel Commission will make the Final Decision in appeals involving alleged retaliation or harassment. In so far as this matter involves a local government employee subject to Chapter 126 pursuant to North Carolina General Statute § 126-5(a)(2), the decision of the State Personnel Commission, absent a finding of discrimination, shall be advisory to the local appointing authority which shall render a Final Agency Decision. Further requirements of rights, notices and timelines to the Parties shall be forthcoming from the State Personnel Commission and/or the local appointing authority as the circumstances and stage of the process may dictate.

This the 22nd day of June, 2006. ______Melissa Owens Lassiter Administrative Law Judge

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