STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF CUMBERLAND NO. 11 OSP 0510

REGINALD LYONS,

Petitioner, DECISION v.

FAYETTEVILLE STATE UNIVERSITY,

Respondent.

The above-captioned case was heard before the Honorable Donald W. Overby, Administrative Law Judge, on June 13 2011, in Fayetteville, North Carolina.

APPEARANCES

For Petitioner: Donald C. Hudson McGeachy, Hudson & Zuravel 138 Dick Street P. O. Box 747 Fayetteville, N.C. 28302

For Respondent: Stephanie A. Brennan Assistant Attorney General NC Department of Justice P.O. Box 629 Raleigh, N.C. 27602

EXHIBITS

Official Notice was taken of Exhibits A, B, and C. The following Exhibits were admitted for Respondent: Exhibit Letter Date Document A. N/A N.C.G.S. Ch 126, Art. 8 B. N/A 25 N.C.A.C. O1I, Section 2300 C. N/A State Personnel Policy, Section 7 D. N/A FSU, SPA Grievance Policy E. 09/02/10 Letter from B. Harrell

1 G. 09/29/10 Letter from B. Harrell H. 10/04/10 Letter from A. Williams I. 10/26/10 Letter from S. McDonald J. 11/05/10 Letter from R. Botley K. 11/07/10 Letter from Lyons M. 11/19/10 Letter from S. McDonald N. 11/29/10 Grievance Hearing Summary O. 12/14/10 Letter from Chancellor Anderson P. 08/27/10 Photo stills R. 07/01/07 – FSU Performance Management Appraisal Form 06/30/08 S. 07/01/06 – FSU Performance Management Appraisal Form 06/30/07 T. 12/14/10 ESC Appeals Decision U. 07/07/10 Policies signed by Lyons V. 05/25/11 Deposition of Reginald Lyons AA. 08/27/10 Surveillance video from Butler Lobby BB. 04/16/11 Photo of lighting trusses being used in FSU production

WITNESSES

Called by Respondent: Keewon Andrews Billie Harrell Lt. George Johnson Sabrena McDonald Derrek Melby Allen Williams Reginald Lyons

Called by Petitioner: Linda Saunders Horace Underwood Kevin Scott Davis Anthony Toller Douglas Cornelius Gibson

2 ISSUE

Whether Respondent had just cause to fire Petitioner

ON THE BASIS of careful consideration of the sworn testimony of witnesses presented at the hearing, documents received and admitted into evidence, and the entire record in this proceeding as appropriate for consideration, the undersigned makes the following findings of fact. In making these findings, the undersigned 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 witness; any interest, bias or prejudice the witness may have; the opportunity of the witness to see, hear, know and remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether such testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

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

2. Petitioner Reginald Lyons was a permanent State employee subject to Chapter 126 of the General Statutes of North Carolina (“the State Personnel Act”).

3. Respondent Fayetteville State University (“FSU”) is subject to Chapter 126 and was Petitioner’s employer.

4. Petitioner was employed by Respondent as a Building & Environment Technician in Facilities Management, a unit within Business & Finance. Tr. 37. In that role, Petitioner’s two primary responsibilities were handling moving requests and doing set- ups for FSU events. Tr. 44.

5. Starting in May 2009, Petitioner worked under the supervision of Billie Harrell. Ex. Q; Tr. 42. While under Harrell’s supervision, Petitioner did not have the authority to remove state property from FSU grounds without approval and was not authorized to be in or around campus buildings unless necessary to complete a work order. Ex. U; Tr. 53.

6. It was not part of Petitioner’s job to determine whether FSU property should be sent to salvage. Tr. 116-17. Petitioner was aware that FSU policy required him to go through FSU’s property salvage operator, Brian Mayers, prior to sending any items to trash or salvage. Tr. 49-51, 118.

7. Petitioner also was aware that he was not allowed to sell FSU property. Tr. 51. He signed a document in July 2010 in which he acknowledged that, “Removal of state property is considered theft, and the first offense may result in dismissal. Tr. 52-53.

3 8. On August 27, 2010, Petitioner is shown on a security camera in the lobby of the Butler Theater building on FSU’s campus. Petitioner is shown on the video removing four aluminum lighting trusses from the building on a wheeled cart. Ex. P, AA, Tr. 103-04. Petitioner conceded that still photographs from the videotape show him removing the trusses. Tr. 55-56; Ex. P.

9. On August 27, 2010, the trusses belonging to FSU were recovered from Mike’s Core and Battery. The trusses had been sold to Mike’s Core and Battery by Keewon Andrews, a part-time employee of FSU under Petitioner’s direct supervision. The trusses were delivered using Petitioner’s work truck. Ex. V; Tr. 78, 99.

10. Andrews testified that Petitioner had instructed him to take the trusses to Mike’s Core and Battery and bring the money back to Petitioner. Andrews further testified that he sold the trusses for approximately $147 and brought the money to Petitioner, who gave Andrews a portion of the cash and kept the remainder. Andrews testified that he and Petitioner had been together at Mike’s Core and Battery prior to the sale of the trusses to sell other FSU property and that Petitioner had authorized the sale of FSU property to Mike’s Core and Battery. Tr. 19-21. In the light of other credible evidence, this part of Andrews’ testimony is found to be credible.

11. Petitioner denied instructing Andrews to sell the trusses or any knowing involvement in their sale. He claimed that he was removing the trusses from a mechanical room at the Butler Theater because he had been told several years before August 27, 2010 to clean out the mechanical room to eliminate a fire hazard. He further claimed that he intended to send the trusses to salvage. Tr. 58, 67, 71-73. He denied ever having been to Mike’s Core and Battery. Tr. 66. Petitioner’s testimony in this regard is not credible.

12. Derrick Melby, an employee at Mike’s Core and Battery, testified that Petitioner was at Mike’s Core and Battery with Andrews in an FSU truck at least twice, that Petitioner identified himself as Andrews’ “boss,” and that Petitioner told Melby that it was alright to sell FSU material to Mike’s Core and Battery. Tr. 147.

13. Petitioner initially denied having any recollection of removing the trusses. It was not until the November 29, 2010 grievance hearing when he was shown the videotape stills that showed him removing the trusses that he conceded that he had removed them. Tr. 60-66.

14. Work orders are an integral part of the process in order to properly schedule work and to track the work being performed. Work was sometimes performed without written work orders, but such occasions were usually more of an emergency situation and generally Ms. Harrell would still know of the work being performed. Petitioner had more flexibility in his duties under Harrell’s predecessor as his supervisor.

15. If an area is deemed a fire hazard, it immediately generates a written work order and receives a high priority.

4 16. There were no work orders that would have required Petitioner to be present in the Butler Theater on or around August 27, 2010. Ex. N; Tr. 125-26. There is no evidence that any part of the Butler Theater was designated as a fire hazard during the relevant times herein.

17. Petitioner did not produce any documentation of a request or work order to clean out the mechanical room in the Butler Theater or identify who gave him the order. Tr. 67, 129.

18. FSU had no plans to salvage the trusses, which were in active use by the FSU theater department. Tr. 119-21, 134-35; Ex. BB.

19. Petitioner was not instructed by his supervisors or by anyone else to remove the materials in question from the Butler Theater on or around August 27, 2010.

20. Petitioner did not discuss removal of the trusses with his supervisor, Billie Harrell, notify Brian Mayers that he was sending any items for salvage, or tell anyone at FSU (other than Andrews) of his plans to remove the trusses.

21. Although the mechanical room where the trusses were stored contained furniture, file cabinets, two coffins, some lights, and a few chairs as well as the trusses, and Petitioner testified that these items were to be removed because they were a fire hazard, Petitioner removed only the aluminum trusses. There is no evidence that Petitioner attempted to clean or remove any of the other items stored in the mechanical room.

22. Petitioner offered no credible explanation for why he waited several years to clean out the mechanical room if there were a fire risk. Petitioner offered no credible explanation concerning why he decided several years later to return to clean out the room without informing his supervisor of his plans. Petitioner offered no credible explanation concerning why he removed only the trusses on August 27, 2010.

23. On September 2, 2010, Petitioner was placed on investigatory leave, and suspended with pay. Ex. E. A predisciplinary conference was held on October 1. Ex. G. On October 4, 2010, Alan Williams, Director of Operations at FSU terminated Petitioner’s employment due to unacceptable personal conduct based upon his removal of the trusses. Ex. H.

24. Petitioner challenged the termination through the University’s grievance process. Exs. I, J-M. The University Grievance Committee unanimously upheld the termination and the Chancellor also upheld the termination. Exs. N-O.

25. Billie Harrell, Lt. George Johnson, Allen Williams, Sabrena McDonald and Derrick Melby were credible witnesses. Furthermore, crucial parts of their testimony were supported by documentation.

26. Petitioner’s testimony and contentions are found not to be credible.

5 CONCLUSIONS OF LAW

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

2. On the sole issue to be heard, Respondent met its burden to show that it had just cause to dismiss Petitioner.

3. A career State employee may be dismissed only for just cause. N.C. Gen. Stat. § 126- 35(a). The State employer has the burden of proving that there was just cause for the dismissal. N.C. Gen. Stat. § 126-35(d).

4. An employee may be dismissed without any prior warnings or disciplinary action when the basis for dismissal is unacceptable personal conduct. 25 N.C.A.C. 1J.0608(a). One instance of unacceptable personal conduct constitutes just cause for dismissal. Hillard v. North Carolina Dep’t of Corr., 173 N.C. App. 594, 597, 620 S.E.2d 14, 17 (2005).

5. “Unacceptable Personal Conduct” includes: (1) “conduct for which no reasonable person should expect to receive prior warning”; (2) “job-related conduct which constitutes a violation of state or federal law”; (3) “the willful violation of known or written work rules”; and (4) “conduct unbecoming a state employee that is detrimental to state service.” 25 N.C.A.C. 1J.0614(8)

6. Unacceptable personal conduct includes stealing or misusing State property. Amanini v. N. Carolina Dept. of Human Res., N.C. Special Care Ctr., 114 N.C. App. 668, 679, 443 S.E.2d 114, 121 (N.C. Ct. App. 1994).

7. In the case of “conduct unbecoming a state employee that is detrimental to state service,” the State employer is not required to make a showing of actual harm, “only a potential detrimental impact (whether conduct like the employee’s could potentially adversely affect the mission or legitimate interests of the State employer).” Hilliard v. North Carolina Dep’t of Corr., 173 N.C. App. 594, 597, 620 S.E.2d 14, 17 (2005)

8. Petitioner’s removal of the trusses from the Butler Theater building was conduct for which no reasonable person should expect to receive a prior warning.

9. Petitioner’s removal of the trusses from the Butler Theater building constituted a violation of state law. N.C. Gen. Stat. § 14-74.

10. In removing the trusses, Petitioner willfully violated a written work rule. See Ex. U.

11. Petitioner’s removal of the trusses from the Butler Theater building, which led to their subsequent sale to Mike’s Core and Battery, constitutes conduct unbecoming a state employee that is detrimental to state service.

6 12. In removing the trusses, Petitioner misused State property to the detriment of Respondent.

13. Petitioner’s conduct constituted unacceptable personal conduct, which justified his dismissal.

14. Respondent followed proper procedures in dismissing Petitioner for unacceptable personal conduct.

On the basis of the above Conclusions of Law, the undersigned issues the following:

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that Respondent has sufficiently proved that it had just cause to dismiss Petitioner based on his unacceptable personal conduct, and Petitioner’s claim of dismissal without just cause is therefore DISMISSED.

ORDER

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

NOTICE

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

The agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings. The agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.

This the 19th day of August, 2011.

______Donald W. Overby Administrative Law Judge

7 A copy of the foregoing was mailed to:

Donald C. Hudson McGeachy, Hudson & Zuravel PO Box 747 Fayetteville, NC 28302 ATTORNEY FOR PETITIONER

Stephanie A. Brennan Assistant Attorney General NC Department of Justice 9001 Mail Service Center Raleigh, NC 27699-9001 ATTORNEY FOR RESPONDENT

This the 19th day of August, 2011.

______Office of Administrative Hearings 6714 Mail Service Center Raleigh, NC 27699-6714 (919) 431-3000

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