State of North Carolina s13

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF ROBESON 06 OSP 2346

KEITH DIAL, ) Petitioner, ) ) v. ) DECISION ) NORTH CAROLINA DEPARTMENT ) OF JUVENILE JUSTICE AND ) DELINQUENCY PREVENTION, ) Respondent. )

This matter was heard before Beecher R. Gray, Administrative Law Judge, on 12 April 2007, in Smithfield, North Carolina.

APPEARANCES

For Petitioner: Keith Dial 47 Elias Road Maxton, NC 28364

For Respondent: Gail E. Dawson Special Deputy Attorney General

Teresa H. Pell Assistant Attorney General

North Carolina Department of Justice P.O. Box 629 Raleigh, NC 27602-0629

EXHIBIT

The following exhibit was admitted into evidence:

Resp. Exh. 19: Employment Posting, position number 1840-0000-0040-920 (8/17/06) ISSUE

Whether Petitioner was denied a promotion based on his race, age, or in violation of promotional priority consideration.

STATUTES AND RULES IN ISSUE

1. N.C. Gen. Stat. § 126-16 2. N.C. Gen. Stat. § 126-34.1 3. N.C. Gen. Stat. § 126-36 4. N.C. Gen. Stat. § 126-7.1

DISPOSITIVE MOTIONS

Respondent moved for a protective order with respect to evidence of confidential personnel information pertaining to the applicants for the position of Chief Court Counselor II. The motion was allowed and a Protective Order was entered on 3 April 2007. At the close of Petitioner’s evidence, Respondent moved under Rule 41(b) of the North Carolina Rules of Civil Procedure to dismiss Petitioner’s contested case for failure to establish a prima facie case. The motion was allowed.

WITNESSES

Petitioner: Keith Dial

FINDINGS OF FACT

1. The parties properly are before the Office of Administrative Hearings.

2. Respondent is a North Carolina State Agency.

3. Petitioner, Keith Dial [hereinafter “Petitioner”], is an individual employed at the North Carolina Department of Juvenile Justice and Delinquency Prevention as a Juvenile Court Counselor. (Petition)

4. Petitioner is a fifty-three year old Native American male. (Petition)

5. Petitioner has been employed as a Juvenile Court Counselor by Respondent since April 1990. (Petition)

6. Petitioner has a good employment history with Respondent.

7. Respondent posted an employment opportunity on 17 August 2006 for a Chief Court Counselor II, position number 1840-0000-0040-920. (Respondent’s Exhibit 19)

8. The Chief Court Counselor II position requires, among other things:

2 Graduation from a four-year college or university with a degree in a human services field such as Social Work, Psychology, Counseling, or Criminal Justice and six years of progressively responsible experience in juvenile court counseling; including one year in a supervisory or administrative role; or, a Master’s Degree in a human service field and four years of progressively responsible experience in juvenile court counseling, including one year in a supervisory or administrative role; or, an equivalent combination of training and experience.

(Respondent’s Exhibit 19)

9. Petitioner applied for position number 1840-0000-0040-920 as a Chief Court Counselor II in Robeson County on 21 August 2006. (Petition)

10. Petitioner’s application does not reflect any supervisory experience.

11. Petitioner does not have any experience supervising employees except for his military supervisory experience which he did not list on his application.

12. Petitioner has a bachelor’s degree in Sociology.

13. Petitioner does not have a master’s degree.

14. Petitioner did not indicate any special training on his application.

15. Petitioner is not an instructor or trainer for the Department.

16. Petitioner testified that he is not a good public speaker and acknowledged the importance of public speaking to the position of Chief Court Counselor II.

17. Petitioner and three other applicants were selected for an interview. Each of the three other applicants was a state employee in the Robeson County Juvenile Court Counselor’s Office.

18. Petitioner interviewed for the position of Chief Court Counselor II on October 26, 2006.

19. Petitioner testified he took notes to the interview and read from them.

20. Petitioner did not listen carefully to the questions at his interview.

21. Petitioner testified that he reacted before he thought about his answers at his interview.

3 22. Petitioner believed himself to be the most qualified candidate based solely on his years of service.

CONCLUSIONS OF LAW

1. The parties properly are before the Office of Administrative Hearings.

2. To establish a prima facie case for discrimination based on race under Title VII, Petitioner has the burden of proving that: a) Petitioner is a member of a protected class; b) petitioner applied for and was qualified for the available position; c) petitioner was rejected; and d) after rejection, the position remained open or the employer filled the position with an employee in a non-protected class. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 677 (1973); Enoch v. Alamance County Dep’t of Social Servs., 164 N.C. App. 233, 242, 595 S.E.2d 744, 752 (2004).

3. “ An employee can establish a prima facie case of age discrimination when the employee shows that (1) the employee is a member of the protected class, or over forty years old; (2) the employee applied or sought to apply for an open position with the employer; (3) the employee was qualified for the position; and (4) the employee ‘was rejected for the position under circumstances giving rise to an inference of unlawful discrimination.’ Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959-60 (4th Cir. 1996). An inference of unlawful discrimination arises when an employee is replaced by a ‘substantially younger’ worker. O’Connor v. Consol. Coin Caterers, 517 U.S. 308, 312-13, 134 L.Ed.2d 433, 438-39, 116 S.Ct. 1307 (1996); Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 430 (4th Cir. 2000).” N. C. Dept. of Crime Control & Pub. Safety v. Greene, 172 N.C. App. 530, 538, 616 S.E.2d 594, 600-601 (2005).

4. Petitioner is a member of a protected class.

5. Petitioner applied for and was denied a promotion to Chief Court Counselor II.

6. Petitioner’s evidence established that his application showed no supervisory experience, nor did he have a master’s degree, and therefore Petitioner failed to show that he was qualified for the position for which he applied.

7. Petitioner failed to establish a prima facie case of discrimination based on his race or age.

8. North Carolina General Statute Section 126-7.1 (c) provides:

If a State employee subject to this section: (1) Applies for another position of State employment that would constitute a promotion and;

4 (2) Has substantially equal qualifications as an applicant who is not a State employee then the State employee shall receive priority consideration over the applicant who is not a State employee. This priority consideration shall not apply when the only applicants considered for the vacancy are current State employees.

9. Petitioner’s testimony established that the only applicants considered for the vacancy were current State employees.

10. Petitioner failed to show that he was entitled to promotional priority consideration under N.C.G.S. 126-7.1(c).

BASED UPON the foregoing Findings of Fact and Conclusions of Law, the undersigned renders the following:

DECISION

Plaintiff failed to meet his burden of proof to establish a prima facie case of discrimination based on race or age. Petitioner failed to show that he was entitled to promotional priority consideration. Respondent’s Motion to Dismiss is ALLOWED and Petitioner’s claims are DENIED. Petitioner is ordered to return discovery materials provided under the Protective Order to counsel for Respondent.

ORDER AND NOTICE

The North Carolina State Personnel Commission will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Under 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, North Carolina 27699-6714.

This the 20th day of April 2007.

______Beecher R. Gray Administrative Law Judge