State of North Carolina s63

STATE OF NORTH CAROLINA IN THE OFFICE OF COUNTY OF WARREN ADMINISTRATIVE HEARINGS 06 OSP 1313 ______

Gloria Davis ) Petitioner, ) ) v. ) DECISION ) Employment Security Commission of ) North Carolina ) Respondent. ) ______

The above-entitled matter was heard before Donald W. Overby Administrative Law Judge on May 30 and May 31, 2007 in Raleigh, North Carolina.

APPEARANCES

Petitioner: Gloria Davis 431 Snow Hill Road Warrenton, NC 27589

Respondent: Camilla F. McClain Employment Security Commission of North Carolina PO Box 25903 Raleigh, North Carolina 27611-5903

STATEMENT OF THE CASE

Petitioner filed a Petition for Contested Case Hearing with the Office of Administrative Hearings on July 24, 2006 alleging that Respondent, Employment Security Commission of North Carolina (“ESC”), used discriminatory, unlawful and harassing training procedures against her; subjected her to a hostile work environment based upon her sex, race and handicapping condition; and discriminated against her by dismissing her from her position as Employment Consultant I without first giving her a pre-dismissal conference; a written statement enumerating the basis for the proposed action; and without including her appeal rights in her dismissal letter.

On July 27, 2006, Petitioner also filed a charge of employment discrimination with the Office of Administrative Hearings (CRD Charge No. 06-CRD-0085); and with the federal agency, the U.S. Equal Employment Opportunity Commission (EEOC Charge No. 14-B-2006- 00085), alleging that she was discriminated against during employment based on her race, sex, disability and that she was retaliated against, dismissed from her position and otherwise treated improperly by ESC. Pursuant to a Work Sharing Agreement between the Office of Administrative Hearings and the U.S. Equal Opportunity Employment Commission, the Office of Administrative Hearings, Civil Rights Division was assigned to investigate the charge Petitioner filed.

On August 14, 2006, Respondent filed a Motion to Stay Contested Case, after receiving notification of the charge filed by Petitioner with the Office of Administrative Hearings, and the U.S. Equal Employment Opportunity Commission; and on the following dates, Petitioner filed the following motions: September 18, 2006, a Motion for Summary Judgment; September 26, 2006, a Motion to Sanction Respondent; and October 5, 2006, a Motion to Amend Brief in Support of Motion for Summary Judgment.

On October 2, 2006, Chief Administrative Law Judge (“ALJ”) Julian Mann, III, entered an Order Staying Contested Case; on November 29, 2006, Petitioner filed a Request to Lift the Order Staying Contested Case.

On April 10, 2007, Chief ALJ Mann III, entered an Order Lifting Stay; and for good cause shown reassigned the contested case to the undersigned ALJ.

On May 9, 2007, the undersigned ALJ issued a Notice of Hearing scheduling the contested case for hearing on May 30, 2007; and on May 10, 2007, the undersigned ALJ entered an Order denying the Petitioner’s Motions for Sanctions and Summary Judgment.

STATUTES, RULES & POLICIES IN ISSUE

N.C. Gen. Stat. Section 126-1.1 N.C. Gen. Stat. Section 126-34 N.C. Gen. Stat. Section 126-35 N.C. Gen. Stat. Section 126-36 N.C. Gen. Stat. Section 150B-23 N.C. Gen. Stat. Section 168A-3 Office of State Personnel, Personnel Manual

ISSUES

1. Whether the Petitioner was a career state employee subject to the provisions of N.C. Gen. Stat. Section 126 -35?

2. Whether Respondent discriminated against the Petitioner based upon sex, race and handicapping condition.

WITNESSES

Petitioner testified on her own behalf.

Respondent presented the following witnesses:

2 David Breeding Gloria Butler Steve Gay Alma Gupton Pamela Shugart Lisa Thompson

EXHIBITS

Petitioner’s Exhibits 1-8

Respondent’s Exhibits 1-4; 8-56; 58-63; 65-71; and 73-75

FINDINGS OF FACT

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the undersigned ALJ makes the following Findings of Fact. In making these Findings of Fact, the ALJ has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including, but not limited to, the demeanor of the witnesses, any interests, bias, or prejudice the witnesses may have, the opportunity of the witnesses to see, hear, know or remember the facts or occurrences about which the witnesses testified, whether the testimony of the witnesses is reasonable and whether the testimony is consistent with all other believable evidence in the case.

1. This matter is properly before the Office of Administrative Hearings and OAH has subject matter jurisdiction. All parties are properly noticed.

2. Petitioner was appointed to the position of Employment Consultant I in the Interstate Group of the Employment Security Commission’s (hereinafter ESC) Remote Service Center in Raleigh, NC, on August 1, 2005. Petitioner worked for ESC for non-consecutive terms of fifty- two months. All of her positions, prior to the one at issue, were in part-time and/or intermittent employment.

3. Prior to the employment at issue herein, the last position Petitioner held was as an Employment Consultant I in the Rocky Mount Office of ESC. Petitioner acknowledges that she was hired in that position as an “intermittent” employee. Petitioner acknowledges that the position in Rocky Mount never was a permanent position and that she was never told that she was a career employee. She understood when she was hired that the position was not expected to exceed nine months, but that period could be extended for emergencies up to and including for twelve month periods. 4. Petitioner knew that she had been hired in Rocky Mount to assist ESC with its increased workload following the September 11, 2001 terrorist attacks against the United States. This was

3 an extreme emergency with lasting effects that served to extend Petitioner’s period of intermittent employment.

5. Petitioner did not earn any benefits as an intermittent employee. The position she occupied in Rocky Mount was not funded as a full time permanent position and was only funded as an intermittent position. Petitioner worked in this intermittent position from February 2002 through July 2005.

6. While working as in intermittent Employment Consultant I in the Rocky Mount Office of ESC, Petitioner submitted an employment application on April 6, 2005, for an Employment Consultant I position in ESC’s Remote Service Center in Raleigh, NC. On the application, Petitioner is asked “Reason for Leaving” to which she responded “intermittent.” Petitioner knew that accepting the position would mean leaving the intermittent position that she held. Petitioner was not seeking a transfer or lateral move within the state employ even though the position she held in Rocky Mount and the position she sought in Raleigh were both Employment Consultant I.

7. Petitioner’s appointment to the position of Employment Consultant I in the Interstate Group of ESC’s Remote Service Center in Raleigh, NC was to a permanent position subject to a probationary period. By letter, Petitioner was informed when she was appointed to the position that it was probationary and that “[t]he attainment of permanent status is contingent on the satisfactory performance of the duties assigned, satisfactory completion of a background check and appropriate personal conduct in accordance with State Personnel policy.” (Respondent’s Exhibit 2)

8. Petitioner was hired subject to a six to nine month probationary period.

9. Petitioner went through a new hire orientation session when she began work for ESC in August 2005. Among other things, the orientation session covered ESC’s grievance policies. Employees, including Petitioner, were notified that an employee who believed that he or she was being discriminated against or harassed in the workplace based on age, sex, race, color, national origin, religion, creed or handicapping condition, had a right to file a grievance.

10. Petitioner began her work in the Interstate Group of ESC’s Remote Service Center under the supervision of Teresa Barefoot, supervisor.

11. Petitioner contends and alleges the following: While working in the Interstate Group of ESC’s Remote Service Center she thought that her co-workers hated her. She alleges that she was not properly trained and she was subjected to a training procedure where she had to sit with different people on a daily basis, a procedure not followed with the others who were hired at the same time as she. She feels that people such as her who had a master’s degree were ridiculed. She worked in an environment where her co-workers allegedly called the hurricane Katrina survivors dumb and stupid. Petitioner was offended and felt discriminated against by this because she is black, and most of the hurricane Katrina survivors were black and poor. Further, there were times when her co-workers David Breeding, and Lisa Thompson allegedly made inappropriate comments about her health by stating that she was bipolar, dyslexic, and needed to go to a dentist. Thompson also allegedly engaged in loud laughter, while the claimant was on

4 the telephone trying to do her job. There was also allegedly an occasion when she was told to take a break, instead of being allowed to go home when sick; and she was allegedly discharged from employment, while waiting to take leave pursuant to the Family and Medical Leave Act (FMLA). Petitioner asserts that she was treated in the manner described because of her race, sex and alleged handicapping condition, and because her coworkers wanted her to leave.

12. Petitioner suffered from the following health conditions during employment: high blood pressure, fibroids and sarcoidosis. Her co-workers were not aware of any health problems during the term of her employment. Petitioner acknowledges that none of the health conditions interfered with the Petitioner’s ability to perform her work duties well.

13. Petitioner did not file any grievances against anyone in the Interstate Group of ESC’s Remote Service Center, prior to her separation from employment.

14. Petitioner began employment in the Interstate Group of ESC’s Remote Service Center as one of 10 Employment Consultants. Petitioner and Employment Consultant I David Breeding (white, male) began work on the same day. Jonathan Garner (white, male) another Employment Consultant I, came to the Interstate Group later but during the same month the Petitioner began.

15. Petitioner, Breeding, and Garner (when he arrived) went through the same approximately three week training in August 2005, with Betty Thomas, employment analyst/trainer; and then a longer more in depth training during the October through December 1, 2005 time period. The newly trained Employment Consultants were also given the same training material to use at their desks.

16. As part of the training process, each of the Employment Consultants were also required to observe the claims taking process for a few days while sitting with skilled Employment Consultants in the group.

17. Petitioner was resistant to the training that she received in that she told her supervisor that she did not need the additional training when scheduled to take the October through December 1, 2005 training. Petitioner did not cooperate with co-worker, Employment Consultant I Alma Gupton’s (black, female) efforts to train her while she was sitting with Gupton observing the claims taking process.

18. Petitioner demonstrated an attitude that she already knew the job since she had worked in the ESC previously and was resistive of suggestions on how to better perform her duties. She was not receptive to changes in procedure even when directed by supervisors to up-date her reference manual. She was not receptive to suggestions as to how she could perform her duties better by co-workers, senior co-workers or supervisors.

19. Barefoot was promoted during Petitioner’s employment; and Pamela Shugart was promoted from Employment Consultant to supervisor in December 2005, and became Petitioner’s immediate supervisor.

5 20. Shugart began to monitor each of the new Employment Consultants’ work after they completed training on December 1, 2005. Petitioner’s, Breeding’s and Garner’s work was all critiqued in the same manner. Any errors in processing were returned to each Employment Consultant and discussed on a daily basis. The Employment Consultants were encouraged to ask questions and come to Shugart, if needing guidance.

21. Petitioner struggled in the performance of her job and made errors. She completed “C1” computer transactions in error that resulted in the release of over $4,000.00 in unemployment insurance benefits to one claimant and over $1,600.00 in unemployment insurance benefits to another claimant, money that was not recoverable once paid. After making the errors, she jokingly told Shugart that she guessed she had given someone a good Christmas present. Shugart explained the seriousness of the situation and told Petitioner not to process any more “C1’s” without Shugart’s approval.

22. Petitioner continued to process “C1’s” from time to time, without being authorized to do so.

23. Petitioner showed the ability to select and use appropriate “aux work codes,” on the Interstate Group’s telephone system while taking telephone claims from December 5, 2005 through January 6, 2006. After showing that she knew how to use the telephone system properly she repeatedly made errors through the remainder of her employment in that there were times that she did not log out of the telephone system after 5:00 p.m., and she used the “aux work code” designated as “time in other,” even though that code was not to be used. She also improperly coded time to “default,” and she used incorrect “aux work codes.”

24. As the first 6 months of Petitioner’s employment was drawing to an end in February 2006, Shugart, and Barefoot (who became Petitioner’s second level supervisor when she was promoted) met with Petitioner, discussed her job performance with her, and informed Petitioner that her probationary period was being extended. Petitioner had been absent the day before this meeting, but her absence had nothing to do with the meeting. Petitioner was not told at this meeting or at any other time, as she alleges, that she had to get herself together, and that she could always go back to the Rocky Mount office of ESC.

25. Petitioner’s job performance problems continued after her probationary period was extended. There were times that Petitioner failed to call claimants at the time she was scheduled to call them. Petitioner continued to key incorrect “aux work codes”, and, among other things, she drafted and mailed an unauthorized letter. She routinely failed to get weekly status reports to Shugart on time. 26. Petitioner was not ridiculed for having a master’s degree.

27. Hurricane Katrina survivors were not called dumb or stupid, when filing claims for unemployment insurance benefits through the Interstate Group.

28. Neither Breeding nor Thompson told Petitioner that she was bipolar, dyslexic, or that she needed to go to a dentist, and they did not hear anyone make the alleged remarks to the petitioner or in her presence. Neither had any basis of knowledge of the illnesses, nor reason to attribute

6 them to the Petitioner. No one is aware of loud laughter or other noise by anyone that would have interrupted the Petitioner’s ability to conduct telephonic communications, and Petitioner never complained to anyone of such.

29. Shugart did not tell Petitioner to take a break, instead of allowing Petitioner to go home when Petitioner was sick, contrary to the Petitioner’s allegation.

30. Petitioner was separated from her probationary appointment as an Employment Consultant I, in the Interstate Group of ESC’s Remote Service Center on April 26, 2006. She was separated from employment solely because of her failure to achieve permanent status due to her unsatisfactory job performance. Contrary to Petitioner’s contention, she was not entitled to the same appeal rights that she would have as a permanent employee, having failed to achieve permanent status.

31. Petitioner had submitted a request to take FMLA, prior to her separation from employment. She submitted the FMLA request form to Shugart on March 20, 2006, and informed Shugart at that time that she had been diagnosed with fibroids. She was to have surgery for the condition, but it had not been scheduled yet.

32. March 20, 2006 was the first time that Petitioner ever mentioned any health problem to Shugart.

33. Petitioner was informed that the entire FMLA form had to be completed in order for FMLA to be approved, including a doctor’s certification section.

34. Petitioner informed Shugart prior to her separation from employment that she would probably not be having surgery; and the required doctor’s certification section of the FMLA form was never submitted. The FMLA request was never approved, and the Petitioner’s contention that she was terminated the day before she was to go on FMLA leave is without merit.

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings which has subject jurisdiction over this case.

2. N.C.G.S. §126-35 provides that:

No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted, except for just cause.

N.C.G.S. §126-1.1 provides that:

For the purposes of this Chapter, unless the context clearly indicates otherwise, ‘career State employee’ means a State employee who:

7 (1) Is in a permanent position appointment; and (2) Has been continuously employed by the State of North Carolina in a position subject to the State Personnel Act for the immediate 24 preceding months.

According to Office of State Personnel, Personnel Manual, Employment and Records, Section 3, Page 3:

A permanent appointment is a permanent full-time appointment to a permanently full-time established position when the incumbent is expected to be retained in the position on a permanent basis. A permanent appointment shall be given when (1) the requirements of the probationary period have been satisfied, (2) an employee in a trainee appointment has completed all training and experience requirements, or (3) a time-limited permanent appointment extends beyond three years.

Individuals receiving initial appointments to state government must first serve a probationary or trainee appointment before being eligible for a permanent appointment.

Employees with a permanent appointment receive leave, total state service credit, retirement and health benefits, and when applicable, severance pay and priority reemployment consideration.

3. Petitioner was not a career State employee, subject to the provisions of N.C.G.S. §126-35, at the time of her dismissal. She was still within her probationary period; and had not been continuously employed by the State of North Carolina in a position subject to the State Personnel Act for the immediate 24 preceding months. Petitioner was not entitled to the same appeal rights that she would have as a permanent employee, having failed to achieve permanent status. Respondent has satisfied and complied with all due process requirements.

4. Petitioner’s employment with the Rocky Mount office of ESC prior to this employment was as an intermittent employee, and the Petitioner’s contention that her uninterrupted service in excess of 24 months made that position a permanent position is without merit and not supported by law.

5. 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. North Carolina Department of Correction v. Gibson, 308 N.C. 131, 136-47, 301 S.E.2d 78, 82-88 (1983).

6. 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

8 discrimination under Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986).

7. 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); Swentek v. US Air, Inc., 830 F.2d 552, 557 (4th Cir. 1987).

8. The harassment is actionable only if it is so severe or pervasive to "alter the conditions of [the victim's] employment and create an abusive working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986) (internal quotation omitted) (alteration in original).

9. To establish a prima facie case of discrimination under Title 1 of the American with Disabilities Act, “a plaintiff must demonstrate that (1) she has a disability; (2) she is a qualified individual; and (3) she was subjected to unlawful discrimination as the result of her disability. Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 910 [6AD Cases 282] (citations omitted).

10. Petitioner has shown that she is a member of a protected class, in that she is black and female, and she was qualified for her position, but the record shows that her job performance was not satisfactory. Petitioner has not presented a prima facie case of unlawful workplace harassment, nor has she presented sufficient evidence to show that she had a disability within the meaning of the law, and that she was subjected to unlawful discrimination as a result of it.

DECISION

Based on the foregoing, Petitioner was not a career State employee subject to the provisions of N.C.G.S. §126-35 at the time of her dismissal. Further, Petitioner has not presented a prima facie case of unlawful workplace harassment, nor has she met her burden of proof to show that she has a disability within the meaning of the law, and that she was subjected to unlawful discrimination as a result of it.

ORDER AND NOTICE

The North Carolina State Personnel Commission will make the Final Decision in this contested case. The agency is required to give each party an opportunity to file exceptions and to present written arguments regarding this Decision issued by the Undersigned in accordance with N. C. Gen. Stat. § 150B-36. State Personnel Commission procedures and time frames regarding appeal to the Commission are in accordance with Section 0.0400 – Appeal to Commission of Title 25, Chapter 1, Sub Chapter B of the North Carolina Administrative Code (25 NCAC 01B . 0400).

9 In accordance with N.C. Gen. Stat. § 150B-36 the agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence, giving due regard to the opportunity of the administrative law judge to evaluate the credibility of witnesses. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency. Every finding of fact not specifically rejected as required by Chapter 150B shall be deemed accepted for purposes of judicial review. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency establishing that the new finding of fact is supported by a preponderance of the evidence in the official record. The agency shall adopt the decision of the Administrative Law Judge unless the agency demonstrates that the decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record.

This 18th day of July 2007.

______Donald W. Overby Administrative Law Judge