State of North Carolina s19

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 03 OSP 0013 ______

WILLIAM MICHAEL MCDUFFIE, ) Petitioner, ) ) v. ) DECISION ) ) WAKE CO. JUVENILE DETENTION ) CENTER ) Respondent. ) ______

This contested case was heard before the Honorable Beryl E. Wade, Administrative Law Judge, on April 29, 2003 in Raleigh, North Carolina.

APPEARANCES

Petitioner: William Michael McDuffie, Pro Se 1012-D Village Greenway Cary, North Carolina 27511

Respondent: Staci Tolliver Meyer Special Deputy Attorney General NC Department of Justice Post Office Box 629 Raleigh, North Carolina 27602

EXHIBITS

The following exhibits, or portions thereof, were admitted into evidence:

RESPONDENT Respondent’s Exhibit 1 - Directive to Report to Work Respondent’s Exhibit 2 - Pre-Disciplinary Conference Notification Respondent’s Exhibit 3 - Dismissal Letter Respondent’s Exhibit 4 - McDuffie Step I Grievance Letter to Linda Washington Respondent’s Exhibit 5 - Step I Grievance Response Respondent’s Exhibit 6 - McDuffie Step II Grievance Letter to Linda Washington Respondent’s Exhibit 7 - McDuffie Step I Grievance Response to Written Warning Respondent’s Exhibit 8 - Grievance Hearing Report Respondent’s Exhibit 9 - Final Agency Decision Respondent’s Exhibit 10 - Petition Respondent’s Exhibit 11 - McDuffie Leave Requests

PETITIONER Petitioner’s Exhibit 1-3 - Certification and Explanations of Benefits

Whether Respondent had just cause to terminate Petitioner from employment as a Counselor Technician.

STATUTES AND RULES IN ISSUE

N.C. Gen. Stat. 126-34.1

DISPOSITIVE MOTIONS

At the close of Petitioner’s evidence, Respondent moved pursuant to 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. After fully weighing and evaluating the evidence presented by Petitioner and allowing oral arguments by both parties, the motion was granted based upon the insufficiency of the evidence presented by the Petitioner.

FINDINGS OF FACT

1. Petitioner is an African American male.

2. Petitioner was employed by Respondent Office of Juvenile Justice and Delinquency Prevention (now Department of Juvenile Justice and Delinquency Prevention) as a Counselor Technician at Wake Detention Center.

3. On August 1, 2002, Petitioner informed Sheila Davis, Facility Director, that he would not be reporting to work on August 10, 2002 and August 12, 2002. Davis told Petitioner that he was scheduled to work and that he must report to work or otherwise, there would be disciplinary consequences.

4. Later that same day, Davis and Troy Smith, Program Assistant, met with Petitioner and explained in detail that he was to report to work on August 10-11, 2002. During the meeting, Petitioner explained that he would not be reporting to work on those dates and that he didn’t agree with the August schedule.

5. Ms. Davis met with Petitioner on August 5, 2002 and gave him a Written Directive dated August 5, 2002 directing Petitioner to report to work on August 10-11, 2002 and explaining to Petitioner that failure to report would be considered insubordination.

6. Despite the fact that Petitioner received a written directive to report to work on August 10-11, 2002, Petitioner failed to report to work as scheduled.

7. On August 10, 2002, Mr. Smith called Petitioner’s home at 7:45 a.m. and asked whether Petitioner was reporting to work. Petitioner responded “no.” When Mr. Smith inquired of his reasons for not reporting, Petitioner stated “I told you last week my reasons.”

8. On August 11, 2002, Petitioner again did not report for work as scheduled. Mr. Smith called Petitioner at 8:30 a.m. but got no answer.

9. In a meeting on August 12, 2002 Ms. Davis asked Petitioner why he had not reported for work on the previous two days. Petitioner responded, “I told you last week my reasons.”

10. Petitioner believed the work schedule for Wake Detention to be unfair and unreasonable. Petitioner submitted a proposed schedule to management to consider where employees would have more time off including every other weekend.

12. Management considered the schedule presented by Petitioner but because the detention center is a seven day, twenty four hour operation, the proposed schedule was not feasible due to staff shortages and it would require overtime of employees.

13. Petitioner maintains that his job was taken away from him because he voiced his opinion and stood up for what was right.

14. Petitioner was dismissed from employment for unacceptable personal conduct, insubordination for willful refusal to obey a written directive of the facility director to report for work at a scheduled time.

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings on the issue of just cause.

2. Petitioner offered no evidence whatsoever to contradict the evidence of Respondent showing that the Department had just cause to terminate Petitioner’s employment for insubordination.

3. Petitioner has failed to show that under the facts and the law that he is entitled to the relief sought in his Petition.

4. Petitioner’s appeal must be dismissed pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure. FINAL DECISION

Based on the foregoing findings of fact and conclusions of law, the undersigned hereby enters this DECISION, dismissing this Contested Case with prejudice for Petitioner’s failure to show upon the facts and the law that he is entitled to relief.

NOTICE

This Final Decision is issued under the authority of N.C. Gen. Stat.§ 150B-36(c). Pursuant to N.C. Gen. Stat. § 150B-45, any party wishing to appeal the Final Decision of the Administrative Law Judge may commence such an appeal by filing a Petition for Judicial Review in the Superior Court of Wake County or in the Superior Court of the county in which the party resides. The party seeking review must file the petition within thirty (30) days of being served a written copy of the Administrative Law Judge’s Decision and Order.

N.C. Gen. Stat. § 150B-47 requires the Office of Administrative Hearings to file the official record in the contested case with the Clerk of Superior Court within thirty (30) days of receipt of the Petition for Judicial Review. To ensure the timely filing of the record, the appealing party must send a copy of the Petition for Judicial Review to the Office of Administrative Hearings at the time the appeal is initiated.

This the 11th day of August, 2003.

______Beryl E. Wade Administrative Law Judge