STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF CRAVEN 01 OSP 1122, 1123

REGINALD ROSS, ) Petitioner, ) ) DECISION v. ) ) N.C. DEPT. OF CORRECTION, ) Respondent. )

Petitioner’s Contested Case was heard by Administrative Law Judge Beryl E. Wade, on 27 & 28 November 2001.

APPEARANCES

For the Petitioner: Robert McAfee, Esquire McCotter, McAfee & Ashton, PLLC 3515 Trent Road, No. 10 New Bern, North Carolina 28562

For the Respondent: Deborrah L. Newton, Esquire Assistant Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina 27602-0629

ISSUES

1. Did Respondent have just cause to terminate Petitioner’s employment because of unacceptable personal conduct, and was the termination in retaliation for objection to alleged discrimination or discriminatory?

2. Based upon the official documents in the file, sworn testimony of the witnesses and other competent and admissible evidence, the undersigned makes the following:

FINDINGS OF FACT

1. Petitioner began employment at Craven Correctional Institution on 28 March 1996.

2. Petitioner was dismissed on 30 March 2001 due to unacceptable personal conduct, to wit: violation of a work rule against taking institution food without paying for it, and for insubordination in disobeying an order to reveal the contents of the tray taken from the institution dining hall. 3. Petitioner was hired by the North Carolina Department of Correction on 28 March 1996 and, at the time of his termination on 30 March 2001 had 60 months of continuous state employment and, therefore, was a "career State employee" within the meaning of N.C. Gen. Stat. §126-1.1. As a result, he was subject to and bound by the provisions of the State Personnel Act, N.C. Gen. Stat. § 126-1, et seq. (1996, as amended)("SPA").

4. On 21 June 2001 Petitioner received and signed for a letter from the North Carolina Department of Correction Employee Relations Committee ("ERC") providing him with notice that his termination was upheld and that he had the right to appeal within thirty (30) days of receipt thereof pursuant to N.C. Gen. Stat. § 126-38.

5. On 15 June 2001 the EEO Office completed its investigation and determined that there was not enough evidence to substantiate Reginald Ross’ allegations that he was retaliated against based on his involvement in a previous EEO investigation and that his dismissal was based on discrimination and unfair treatment.

6. On 25 June 2001 Petitioner filed a form Petition for Contested Case Hearing, with an attached one-page addendum, with the Office of Administrative Hearings. The Petitioner indicated on the form Petition that his appeal was based on "wrongful termination". Petitioner also claimed in an EEO complaint that such was based on retaliation and discrimination. In the addendum to the form, Petitioner alleges facts relating to the termination issue. The petitions were consolidated for the purposes of the hearing as they both alleged wrongful termination. Service of the Petitions was improper, in that service was executed on the prison administrator and EEO officer, rather than the registered agent for service of process, General Counsel LaVee Hamer.

7. The facts giving rise to Petitioner’s dismissal found by this court were: On 25 January 2001 at approximately 12:40 pm. Correctional Officer Reginald Ross was observed by the institution’s food service manager in possession of a styrofoam tray for which he had not paid. Petitioner was ordered by the manager to reveal the contents of the tray. Petitioner refused the food service manager’s order to open the tray to reveal the contents after denying that he had food, which belonged to the institution in the tray. He told the food service manager that another employee had given him the food. Testimony revealed that this employee did not give the officer any food that day. Testimony revealed that officers at the institution were required to pay $2.12 for meals taken from the institution. Institution records admitted at the hearing revealed that Petitioner did not pay for a lunch meal or any meal that day. Instead, Petitioner denied that he had taken a meal. The Court finds that there was a violation of a work rule against taking food from the institution without paying for it by Petitioner.

8. The food service manager and Petitioner engaged in an altercation in the presence of inmates in the dining hall regarding the tray when Petitioner refused to reveal the contents of the tray. Yelling and obscenities were exchanged. Petitioner challenged the authority of the food service manager to issue an order, which he was required to obey. This challenge continued at the hearing, with several witnesses challenging the authority of the food service manager. From the testimony of management of the prison, it is clear that the food service manager had the authority to issue the order to Petitioner, and have it obeyed. The court finds it credible that he had the authority to issue the order, and reasonable that he order Petitioner to reveal the contents of the tray, as he was a supervisor for the purposes of the dining room. The Court finds Petitioner willfully refused to obey the lawful order of a supervisor to open the tray.

9. Petitioner then proceeded from the dining hall to the control room, where the evidence revealed that he entered the restroom with a tray, and emerged without one. Testimony revealed that the trash can in the restroom contained a styrofoam tray with a meal, uneaten and which was the same meal that had been served in the dining hall that day, immediately after Petitioner had been in the restroom.

10. When questioned about the incident and the results of the investigation engaged in by the institution resulting from Petitioner’s conduct, Petitioner denied taking the food. This denial was in conflict with the testimony of witnesses at trial.

11. Petitioner presented no credible evidence demonstrating that his dismissal was in retaliation for objection to alleged discrimination or discriminatory. Respondent met its burden to demonstrate that the Petitioner was dismissed for non-discriminatory and non-retaliatory reasons, as stated in the letter of dismissal. The Court finds as a fact that the dismissal was not for an improper retaliatory purpose or discriminatory.

12. The Court finds that Petitioner had been a good officer and during his tenure was assigned to train other officers. Without medical testimony offered by Respondent, but objected to by Petitioner, the Court is unable to speculate on the cause for the conduct on the date in question which the Court has found Petitioner engaged in, and which resulted in his dismissal from State employ as a correction officer for unacceptable personal conduct and sufficient just cause for his dismissal from state service.

13. The Court however finds that the testimony and evidence presented at the two day hearing sufficient to determine that Respondent has met its burden to demonstrate that Petitioner violated a work rule and disobeyed a lawful order, and that such violations constitute just cause to dismiss him from state service as a correction officer.

CONCLUSIONS OF LAW

1. Petitioner is a career State employee subject to the provisions of N.C. Gen. Stat. § 126, et seq., the State Personnel Act.

2. N.C.G.S. § 126-35 states that "[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause." As defined by SPC rules in effect at the time this action was taken, “[e]ither unacceptable job performance or unacceptable personal conduct constitutes just cause for discipline or dismissal.” 26 NCAC I J.0604(3)(effective May 1, 1994).

3. The term “unacceptable personal conduct" is defined as conduct for which no reasonable person should expect to receive prior warnings or conduct unbecoming a State employee that is detrimental to State service. 25 NCAC I J.0614 (effective May 1, 1994). 4. On 25 January 2001 at approximately 12:40 pm. Correctional Officer Reginald Ross was observed by the institution’s food service manager in possession of a styrofoam tray for which he had not paid. Petitioner was ordered by the manager to reveal the contents of the tray. Petitioner refused the food service manager’s order to open the tray to reveal the contents after denying that he had food, which belonged to the institution in the tray. Testimony revealed that officers at the institution were required to pay $2.12 for meals taken from the institution. Institution records admitted at the hearing revealed that Petitioner did not pay for a lunch meal or any meal that day. The Court finds that there was a violation of a work rule against taking food from the institution without paying for it by Petitioner, sufficient to justify his dismissal. See Oates v. North Carolina Dep’t of Correction, 114 N.C. App. 597, 442 S.E.2d 542 (1994).

5. Petitioner challenged the authority of the food service manager to issue an order, which he was required to obey. The court finds it credible that he had the authority to issue the order, and reasonable that he order Petitioner to reveal the contents of the tray, as he was a supervisor for the purposes of the dining room. The Court finds Petitioner willfully refused to obey the lawful order of a supervisor to open the tray.

6. Petitioner Reginald Ross’ actions, and each of them, on 25 January 2001 at approximately 12:40 p.m. rise to the level of unacceptable personal conduct sufficient to warrant his dismissal from state service pursuant to the letter of dismissal.

7. Petitioner refused to accept responsibility for his actions.

8. Petitioner presented no credible evidence demonstrating that his dismissal was in retaliation for objection to alleged discrimination or discriminatory. Respondent met its burden to demonstrate that the Petitioner was dismissed for non-discriminatory and non-retaliatory reasons, as stated in the letter of dismissal. The Court finds as a fact that the dismissal was not for an improper retaliatory purpose or discriminatory.

9. Respondent had just cause to dismiss Petitioner Reginald Ross for unacceptable personal conduct occurring on 25 January 2001. Respondent has demonstrated that it did not act arbitrarily or capriciously when it dismissed Petitioner for such conduct. Petitioner has failed to carry his burden to demonstrate otherwise.

Based on the foregoing Findings of Fact and Conclusions of Law, this Honorable Court enters the following:

DECISION

The North Carolina State Personnel Commission will make the Final Decision in this contested case. It is recommended that the State Personnel Commission adopt the Findings of Fact and Conclusions of Law set forth above and find that the Respondent had just cause to dismiss Petitioner Reginald Ross and that such dismissal was not retaliatory or discriminatory. It is the undersigned decision that Petitioner Reginald Ross be denied reinstatement to his former position, and denied back pay, costs and attorney’s fees. NOTICE

Before the State Personnel Commission makes the FINAL DECISION, it is required by N.C.G.S. § 15OB-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED DECISION, and to present written arguments to those in the State Personnel Commission who will make the final decision.

The State Personnel Commission is required by N.C.G.S. § 15OB-36(b) to serve a copy of the FINAL DECISION on all parties and to furnish a copy to the Parties’ attorneys of record and the Office of Administrative Hearings.

This the 28th day of June, 2002.

______Beryl E. Wade Administrative Law Judge