Alonso Van Began Working for the Department of Transportation of July and Not 2001 As A

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF SAMPSON 06 OSP 1145

Alonzo Vann, ) Petitioner, ) ) vs ) DECISION ) N.C. Dept. of Transportation, ) Respondent. )

This matter came on to be heard and was heard before the Honorable Judge Beryl Wade, an Administrative Law Judge, on November 14 & 15, 2006 in Court Room 3 of the Old Cumberland County Courthouse, Fayetteville North Carolina.

APPEARANCES

For Petitioner: Ralph T. Bryant, Jr. Ralph T. Bryant, Jr., P.A. P.O. Box C Greenville, N.C. 27835

For Respondent: Tina A. Krasner Ebony Pittman Asst. Attorney General N.C. Department of Transportation 1505 Mail Service Center Raleigh, N.C. 27699-1505

ISSUES

a. Did Respondent meet its burden to show just cause to dismiss the Petitioner under N.C.G.S. 126-35.

b. Did Respondent intentionally discriminate against Petitioner due to his race (African American).

c. Did Petitioner meet his burden to show he was dismissed in retaliation for engaging in the protected activity of complaining of discrimination in the work place in violation of N.C. Gen. Stat. § 126-34.1(a)(3). WITNESSES

For the Respondent: L.E. Reynolds, Karen Fussell, Alton Thornton, Lloyd Royal, Robert Butler, Patty Cone, Carrie Holland, Dustin Smith, Shannon Baylor, John Devone.

For the Petitioner: Victor Birtch, Alonzo Vann, Stevie Williams, John Daw.

EXHIBITS ADMITTED INTO EVIDENCE

Respondent’s Exhibits: 1. Investigatory Leave With Pay Memorandum to Petitioner dated May 17, 2004 2. Written Warning to Petitioner dated July 26, 2004 3. Notice of Pre-Disciplinary Conference to Petitioner dated February 23, 2005 4. Written Warning to Petitioner dated March 1, 2005 Documented Counseling to Petitioner dated March 11, 2005 5. Addendum to Performance Management Work Plan Memo to Petitioner dated April 12, 2005 6. Notice of Pre-Disciplinary Conference to Petitioner dated May 15, 2005 7. Lloyd Royal Statement dated May 12, 2005 8. Investigatory Placement with Pay Letter to Petitioner dated May 13, 2005 9. Notice of Pre-Disciplinary Conference to Petitioner dated May 16, 2005 10. Dismissal Letter to Petitioner dated May 24, 2005 11. North Carolina Department of Transportation Workplace Violence Policy 12. North Carolina Department of Transportation Violence in the Workplace Policy Statement (signed and dated 719/01) 13. Unlawful Workplace Harassment Policy Statement (signed and dated 7/9/01) 15. Unlawful Workplace Harassment Policy Statement (signed and dated 6/25/03) 17. Written Warning to Steve Daw dated March 1, 2005 19. Employee Skill Block Inventory Sheet.

Petitioner’s. Exhibits: 1. April 24, 2003 rating 2. April 15, 2004 rating 3. January 26th 2005 notes from the Jan. 24th 2005 meeting 5. January 27, 2005 notes from the January 27 meeting 6. December 14, 2004 letter to EEOC 7. February 7, 2005 at EEOC charge 8. January 24, 2004 notes from Petitioner. 9. February 25, 2005 note from Petitioner 10. March 3, 2005 response to written warning from Petitioner 11. May 20, 2005 response to pre disciplinary conference 12. Undated note from Petitioner to EEOC 13. June 7, 2005 letter to Marcia Williams from Petitioner 14. February 25, 2005 letter from Bickham to Pope. 15. Letter to Herb Henderson from EEOC 16. December 14, 2004 letter to EEOC 17. March 17, 2005 EEOC charge 18. March 21, 2005 letter to EEOC from Philip Bickham 19. June 7, 2006 right to sue letter 20. Certified true copy of court proceeding 21. Petitioner's father's medical documentation. 22. July 23, 2004 workability evaluation 23. December 14 2004 workability evaluation 24. E-mails from Bickham to Reynolds

Based upon careful consideration of the testimony and evidence presented at the hearing, documents and exhibits received into evidence, and the entire record of this proceeding, the undersigned makes the following:

FINDINGS OF FACT

1. On February 16 2002 Petitioner Alonzo Vann became a permanent employee of the Department of Transportation as a Transportation Worker. Petitioner worked in Clinton N.C., Sampson County unit.

2. The Petitioner received a work performance rating of very good in April 2003. The Petitioner received a work performance rating of very good in April 2004. These work performance ratings are next to the highest rating that can be received by a state employee. (Pet. Exh. 1 & 2).

3. Or about December 14, 2004, the Petitioner sent a letter to the Equal Employment Opportunity Commission requesting "an investigation into the discriminatory actions that have been shown toward me during the past five months of my employment." (Pet. Ex. 6)(T. p. 375- 376)..

4. In the December 14, 2004 letter, Petitioner essentially complains that Mr. L. E. Reynolds has refused to return him to full duty despite a medical release from his position and that he has not received compensation for at least five skill blocks that he has completed. (Pet. Exh. 6).

5. On December 22, 2004 the Petitioner forwarded his December 14, 2004 letter to Patti Cone. Ms. Cone was the Employee Relations Representative with the Employee Relations Section of the Department of Transportation, and was located at the Division III office in Wilmington, North Carolina. She was responsible for Sampson County. (Cone affidavit).

6. On January 3, 2005, Patti Cone discussed Petitioner’s December 14, 2004 letter to the EEOC, with Mr. L.E. Reynolds, the Sampson County Maintenance Engineer. She specifically informed him that she would be making arrangements to meet with Mr. Vann to discuss the EEOC charges. (Cone Affidavit).

7. Before Ms. Cone could set up a meeting with the Petitioner, Mr. L.E. Reynolds and his supervisor Karen Fussell, the District Engineer, requested that Ms. Cone meet with Mr. Vann’s supervisors to solicit any complaints they may have had against Mr. Vann. (Cone Affidavit). 8. The purpose of the meeting with the Petitioner’s supervisors was to solicit complaints against Mr. Vann. Patti Cone admits that she "met with the supervisors and the unit to discuss problems and concerns they have experienced with Alonzo Vann since he was first hired…”. (Pet. Exh. 3: 1/26/05 letter from Cone to Reynolds) (Affidavit of Patti Cone, Respondents Exhibit 24).

9. On January 24 2005 Patti Cone met with the following persons who had supervised Mr. Vann, at some point during his employment with the Department of Transportation; Dale Underwood, Harry Vann, Henry Rich, Ray Smith, Rex Cashwell, Alton Thornton, Mark McMichael. The supervisors were specifically asked to discuss any problems they have had with Mr. Vann at any time during his employment with the Department of Transportation. (T.p. 709).

10. After meeting with the supervisors on January 24, 2005, Patti Cone met with Mr. Vann on that same day, and told Mr. Vann about the discussion she had with the supervisors regarding any issues or problems that they had with Mr. Vann since he first began working for the Department of Transportation. Mr. Vann was surprised by the fact that a meeting had occurred to discuss issues involving his employment with his previous supervisors and he was surprised by the comments made by the supervisors since none of the supervisors had ever discussed concerns or issues with Mr. Vann. Mr. Vann requested to meet with each of the supervisors face to face to address any concerns or issues they raised with Ms. Cone.

11. During Ms. Cone's meeting with Mr. Vann, he expressed a number of concerns regarding the way in which the African-American employees were treated at the Sampson County Division. Ms. Cone admitted that, "it does appear that he is attempting to draw attention to what he considers mistreatment of African-Americans in the work unit.” (Pet. Exh. 3).

12. On January 25, 2005, Mr. Vann performed his regular duties as a transportation worker, which included supervising inmates performing roadwork. (T.P. 596)

13. On January 26, 2005, Mr. Henry Rich and Mr. Alton Thornton took one of the inmates, Stevie Williams, away from the work site and questioned him extensively regarding the work that Mr. Vann had performed on the previous day. The inmate thought the questioning was unusual because it had never happened before and therefore he advised Mr. Vann of the conversation. (T.P. 596-602).

14. On January 27, 2005 Karen Fussell held a meeting with L.E. Reynolds, Alonzo Vann and all of his past and present supervisors. The purpose of the meeting was to give Mr. Vann an opportunity to hear and discuss the issues raised by the supervisors during the January 24 meeting with Ms. Cone, when Mr. Vann was not present.

15. During the meeting, a number of issues were raised regarding the treatment of African- American employees in the work unit. At the end of the meeting Mr. Vann, Mr. Reynolds and Ms. Karen Fussell had a meeting among themselves to discuss what had transpired. During that conversation Mr. Vann indicated to Karen Fussell that a number of the African-American employees had come to him with these issues and he was raising these issues on their behalf because they were scared to speak up due to fear of retaliation. Karen Fussell then replied: I asked him how far he had gotten being the spokesman for a group of men that turned their backs on him when the chips were down. Did he do them any good? Did he do himself any good? He just looked at me. He was how this may look like he was keeping things stirred up and how he was contributing to disharmony in the workplace. Lynn Reynolds told Alonzo that from now on if he wanted to get in groups and talk about the state he was to do that on his own time and off state property. This included talking to Robert Butler (African-American) in the district office during work hours. (Pet. Exh. 5).

16. During this same conversation with Mr. Vann, Karen Fussell told him he was “no Martin Luther King”, referring to Mr. Vann’s efforts to bring attention to the mistreatment of African American employees in the work place.( T.p. 396).

17. On February 7, 2005 Mr. Vann filed a formal charge of discrimination against the Department of Transportation with the Equal Employment Opportunity Commission. (Pet. Exh. 7).

18. By February 18, 2005 Mr. Philip Bickham, had been notified by the EEOC that Mr. Vann had filed a formal charge of discrimination against the Department of Transportation. Mr. Philip Bickham is the Equal Employment Opportunity officer for the Department of Transportation. On February 18, 2005, Mr. Bickham sent a letter to Allen Pope, the Division III district engineer, notifying the district office that Mr. Vann had filed a complaint of discrimination. That same letter was subsequently sent on February 25, 2005 to the District III office. (Pet. Exh. 24--emails from Phillip Bickham that were provided to the Petitioner’s counsel after the hearing.)

19. On February 21, 2005 the Petitioner and his coworker Steve Daw were working the flatbed truck. Employees assigned to work the flatbed truck performed various duties such as picking up tires, picking up bags of trash that the inmates had bagged, and repairing potholes. On February 21, 2005 the Petitioner and his coworker, Steve Daw, performed these duties as they had generally been performed throughout the course of their employment and in conformity with the general performance of these duties by other employees who operated the flatbed truck. On February 21, 2005, Steve Daw was the driver of the flatbed truck and therefore made decisions as to which duties Petitioner and Mr. Daw would complete. Because of the 14 years experience he had as opposed to Mr. Vann’s four years of experience, Steve Daw acted as the supervisor when Petitioner and Mr. Daw worked together on the flatbed.(T.p. 602-624).

20. Normally, employees working the flatbed truck were not giving any specific assignments to be completed in any specific order. Instead, the employees were given a number of assignments including picking up trash, picking up tires, and repairing potholes, which the employees had the discretion to decide in when and in what order these assignments would be completed. The person responsible for making those decisions was the flatbed truck driver. On February 21, 2005 Steve Daw was the flatbed truck driver and made the decision as to which assignment to complete in the same manner he it made the decisions on numerous previous occasions prior to the filing of the EEOC complaint by Mr. Vann. On that day Mr. Daw determined that certain potholes could not be repaired due to the significant amount of rain that had experienced that day. (T.p. 602-652). 21. On February 25, 2005, the Petitioner was issued a notice of pre-disciplinary conference by L. E. Reynolds. The notice stated that on February 25, 2005 a pre-disciplinary conference would be held to allow the Petitioner an opportunity to respond to the recommendation that he be dismissed for unacceptable personal conduct and unsatisfactory job performance. The notice of pre-disciplinary conference alleged that on February 21, 2005 Mr. Vann failed to complete the work that he was assigned to complete on that day. It also alleged that Mr. Vann ate lunch at a restaurant that was not within the area of his work assignment. (T.p. 602-652).

22. On March 1, 2005 Mr. Vann was issued a written warning alleging unacceptable personal conduct and unsatisfactory job performance. The written warning states the facts upon which the Respondent relied in issuing the written warning. The Respondent’s allegation of unacceptable personal conduct is not supported by the facts stated in the written warning. At most, the written warning describes unsatisfactory job performance by the failure to complete assigned tasks. The purpose for including the frivolous allegation of unacceptable personal conduct was to support the Respondent’s attempt to dismiss the Petitioner without having to follow the procedures required by the State personnel act to dismiss an employee for unacceptable job performance.

23. In the March 1 2005 written warning, Respondent states that the Petitioner specifically alleged during the pre-disciplinary conference that Mr. L. E. Reynolds was bringing up phony charges against him due to his filing of the EEOC charge. Petitioner also alleged that his job performance had never been in question until he filed a complaint with the EEOC alleging discrimination. In response to Petitioner’s allegations that the EEOC charges were the basis for the written warning, Karen Fussell states in the written warning that "we have no knowledge of any charge you may have filed." (Resp. Ex. 4).

24. I find the statement in the March 1, 2005 written warning that the Department of Transportation had "no knowledge of any charge" that Mr. Vann may have filed with the EEOC, is an intentional false statement. The Human Resources Department of the Department of Transportation was aware in December 2004 of the 12/14/04 letter to the EEOC. Moreover, Patti Cone admits to advising Mr. L.E. Reynolds as early as January 3, 2005 that Mr. Vann had filed an EEOC charge. Further, the Department of Transportation was on notice of the EEOC charge at least as of February 18, 2005, as documented by Mr. Philip Bickham's e-mail to L.E. Reynolds. Furthermore, in the conversation that Karen Fussell had with Mr. Vann on January 27, 2005 she specifically advised him that his conduct as an advocate for the African-American employees in his work unit may seem as if he is contributing to disharmony in the workplace. Moreover, the March 1, 2005 written warning was copied to the division engineer Mr. Pope, and the human resources director, Mr. Henderson, both of whom were specifically on notice prior to the issuance of the March 1, 2005 written warning that Mr. Vann had filed an EEOC charge.

25. The March 1, 2005 written warning was issued for retaliatory reasons. Although the Respondent also gave a written warning to Mr. Steve Daw, the sole purpose of issuing the written warning to Mr. Steve Daw was an attempt to justify issuing the written warning to Mr. Vann for retaliatory reasons. Particularly, Mr. Daw had worked for the Department of Transportation for over 14 years and had never received a written warning for his conduct or his work performance during that time. Mr. Daw had conducted himself on February 21 2005 just as he had conducted himself during the previous 14 years of his employment. 26. During his pre-disciplinary conference, Mr. Daw spoke with both Patti Cone and Alan Thornton. During the pre-disciplinary conference Alan Thornton admitted that he should not have suggested disciplinary action against Mr. Daw under the circumstances. Moreover, Mr. Daw advised Patti Cone and Alan Thornton during the pre-disciplinary conference that he made the decision as to what work would be performed February 21, 2005 because he was driving the truck on that day and he was acting as the supervisor. Finally, Mr. Daw believes that the only reason he got the written warning was because the Respondent was using him as an excuse to discipline Mr. Vann for retaliatory reasons. I find Mr. Daw's testimony to be credible. (T.P. 602- 694).

27. Unbeknownst to Mr. Vann, Mr. Phillip Bickham was assigned the tasks of responding to Mr. Vann’s EEOC complaint. (Pet. Exh. 18). Mr. Bickham had been calling Mr. Vann and leaving messages at work for Mr. Vann to call him back to discuss the EEOC complaint. Petitioner thought that Mr. Bickham was investigating the charge and did not know that Bickham was refuting his charge of discrimination with the EEOC. Bickham requested and received an extension of time through March 29, 2005 to file a response with EEOC to the Petitioner’s first charge of discrimination. (Pet. Exh. 18).

28. On March 17, 2005 the Petitioner filed a second EEOC charge alleging retaliation in violation of title VII of the Civil Rights Act of 1964, as amended. (Pet. Exh. 17).

29. There were various e-mail correspondences between Mr. L.E. Reynolds and Mr. Philip Bickham during March and April 2005. E-mail correspondence from April 4 and April 11 reflect specific discussions between the L.E. Reynolds and Philip Bickham as they worked together to file a response on behalf of the Department of Transportation to Mr. Vann’s EEOC charge. (Pet. Exh. 24).

30. On April 12, 2005 the Petitioner received a work performance rating of below good, which is next to the lowest rating that a state employee can receive. (Respondent's Exhibit 6).

31. On May 5, 2005 the Petitioner was working with the shoulder crew on NC 55 operating a front-end loader. At approximately 11:45 a.m. the Petitioner drove the front-end-loader off of the road for purposes of beginning the process of preparing for the lunch break. Petitioner’s actions were consistent with the way the shoulder crew normally prepared for the lunch break. The normal process was for the front-end loader operator to pull the front-end loader off of the road at approximately 11:45 a.m. Then the motor grader operator would push the dirt off of the road. Then the flag crew would leave the area and break for lunch when all the equipment and all of the personnel were off of the road. On May 5, 2005 the Petitioner acted consistent with the normal process and procedures that the shoulder crew used to prepare to go to lunch. The Petitioner did not abandon his equipment at any time. On that day Mark McMichael, a transportation worker one, was filling in as the supervisor, and was unfamiliar with the process that was normally used to prepare to go to lunch. When he saw that the Petitioner had removed the front-end loader from the road, he ordered the Petitioner to return to the road with the front- end loader and continue working. Petitioner obeyed his command and continued working the front-end loader until Mr. McMichael was satisfied that it was time to go to lunch. (T. P. 429- 435; T. p. 651, T. p. 347-349). 32. On May 6, 2005, the Petitioner’s father was in the hospital in Fayetteville North Carolina and was gravely ill. Hospital personnel had asked the Petitioner's mother to bring his family to the hospital with his important paperwork because they were not expecting him to live. Petitioner and his mother left to go to the hospital before the beginning of the DOT workday. Petitioner attempted to call the Clinton office to advise them that he would be unable to be at work that day due to the sickness of his father. When no one answered the phone, Petitioner called his coworker Steve Daw, and asked him to relay the information to someone in the office because he could not carry his cell phone in the hospital, and because he wanted to notify Respondent prior to the beginning of the workday. When Petitioner contacted Steve Daw, Mr. Daw was standing in the office and immediately relayed the information to appropriate office personnel. The Petitioner’s actions of contacting the office prior to beginning of the workday was consistent with the normal process and procedures used to notify the local office of an employee's absence. (T. P. 435-439; T. p. 627-635).

33. No other employee has been disciplined by the Respondent for conducting themselves in the manner that Petitioner conducted himself on May 5 and May 6 2005.

34. The Petitioner was out of work from May 6, 2005 until May 12, 2005. When he returned to work on the morning of May 12, 2005, L. E. Reynolds immediately issued a notice of pre- disciplinary conference for the specific purpose of giving him an opportunity to respond "to the recommendation that you be dismissed for unacceptable personal conduct and unsatisfactory job performance". (Respondent's Exhibit 7). The notice of pre-disciplinary conference referred to two separate incidents. The first incident allegedly occurred on May 5, 2005. The Petitioner is alleged to have “pulled the front end loader off the roadway and abandoned the equipment leaving the dirt exposed in the roadway”. The second incident is alleged to have occurred on May 6, 2005, when the Petitioner notified the office through Mr. Steve Daw that he would be absent from work on that day due to the grave illness of his father. (Respondent's Exhibit 7).

35. The notice of pre-disciplinary conference was typewritten and copied to a number of persons within D.O.T. Those persons included the division engineer Mr. H. A. Pope, D.O.T. Human Resources Director Mr. Herb Henderson and the EEO officer Mr. Philip Beckham. All of these persons were on notice of the Petitioner’s EEOC letter and formal charge. Some of them were actively involved in preparing the responses to the EEOC. Ms. Karen Fussell and Miss Patty Cone testified that prior to the issuance of a disciplinary action such as this, the documentation is reviewed by Herb Henderson, the D.O.T. Human Resources Officer.

36. The incidents addressed in the May 12, 2005 notice or pre-disciplinary conference, do not rise to the level of unacceptable personal conduct.

37. The incidents addressed in the May 12, 2005 notice of pre-disciplinary conference did not constitute unacceptable personal conduct for which an employee could be subject to termination.

38. The May 12, 2005 notice of pre-disciplinary conference was issued for retaliatory reasons.

39. On the morning of May 12, 2005 Mr. Vann became very distraught when he was given the notice of pre-disciplinary conference. A conversation ensued between Mr. Vann, Mr. L.E. Reynolds, and Mr. Mark McMichael. During that conversation Mark McMichael asked the Petitioner "why don't you just quit", and asked the Petitioner to step outside, suggesting that he wanted to fight the Petitioner. As a result of this conversation, the Petitioner was placed on immediate investigatory suspension. No disciplinary action was taken against Mark McMichael. ( T. P. 440-453)

40. The Petitioner left the building and stood outside waiting for someone to pick him up and take him home. He was so upset about receiving the notice of pre-disciplinary conference, and about the conversations in the office with Mark Michael which resulted in his immediate investigatory suspension, that he was visibly shaken and crying as he waited for his ride.

41. The Petitioner saw Mr. Butler and Mr. Royal. He was so distraught that he was crying. He stated that he was so mad at Mr. Reynolds that he could hit him or that he was so mad at Mr. Reynolds that he could kill him. Mr. Royal initially felt that he was just an angry employee blowing off steam. (Respondents Exhibit 8). Mr. Royal left the premises before Mr. Vann. Whatever the specific comments that were made, they were not made to Mr. Reynolds as a threat, and they were not intended as a threat. Instead, it was Petitioner’s way of expressing his understandable frustration with the manner in which he had been treated. (T.P. 440-453; T.P. 309).

42. On May 24, 2005 Petitioner was dismissed from employment. The dismissal letter alleges unacceptable personal conduct and unsatisfactory job performance. The Respondent states as the basis for dismissal the May 5, 2005 incident when Petitioner removed the front-end loader from the roadway in order to prepare for lunch. It also references the May 6, 2005 incident when Petitioner called in to the office to notify them that his father was gravely ill and that he would not be in on that day. The dismissal letter also references the May 12, 2005 conversation between Mr. Reynolds, Mr. Mark McMichael and the Petitioner at the time the Petitioner received the pre-disciplinary conference notice. The dismissal letter also references the statements Petitioner made to Mr. Royal and Mr. Butler after he was placed on investigatory suspension. The notice of dismissal also references the July 26, 2004 written warning for grossly inefficient job performance regarding an incident were Petitioner is alleged to have allowed his child to ride the front-end loader.

43. The Respondent’s treatment of the Petitioner from the time it was placed on notice of the December 14 2004 letter to the EEOC, and on notice of the February 7, 2005 EEOC charge as well as the March 21 2005 EEOC charge, shows an egregious pattern of harassment, intimidation, and reprisal against the Petitioner for engaging in conduct protected under Title VII of the Civil Rights Act of 1964 as amended. The extent to which D.O.T. employees within the higher echelon of the Department of Transportation were involved in this retaliatory conduct is disturbing. Particularly Miss Patty Cone, Mr. Herb Henderson, and Mr. Philip Bickham are all human resources personnel who are tasked with the responsibility to identify this type of retaliatory conduct and to prevent it from occurring. Instead, these persons participated in the retaliatory conduct by both their action in preparing the disciplinary documentation, and their lack of action in face of clear facts that showed that the local division was engaging in retaliatory actions toward Petitioner Vann. 44. Furthermore, the Respondent has failed to show just cause for the termination of the Petitioner. The Respondent is required to specifically list the reasons for the termination of the Petitioner in the dismissal letter. The May 5, 2005 incident where the Petitioner is alleged to have moved the front-end loader off of the roadway in preparation for lunch hour does not constitute a basis for dismissal either under unacceptable personal conduct nor unsatisfactory job performance. The May 6, 2005 incident where Petitioner notified the office prior to the start of the workday that he would be absent due to his father's illness, does not constitute unacceptable personal conduct nor unsatisfactory job performance. The July 26, 2004 incident involving the Petitioner allowing a small child to ride on the front end loader, does not constitute a basis for dismissal because that issue was resolved and that conduct was never repeated (Respondents Exhibit 6, page 4). Since all of these incidents were specifically listed as forming the basis for the termination of the Petitioner in the dismissal letter, and none of these incidents support dismissal of the Petitioner for unacceptable personal conduct nor for unsatisfactory job performance, the Respondent has failed to show just cause for the Petitioner's removal.

45. 25 NCAC 01I .2308(c) requires that the agency “furnish the employee a statement in writing setting forth the specific acts or omissions that are the reasons for the discipline” Similarly, N.C. Gen. Stat. § 126-35 provides:

a. In cases of such disciplinary action, the employee shall, before the action is taken, be furnished with a statement in writing setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employee’s appeal rights.

46. In this case, Respondent violated N.C. 126-35, 25 NCAC 01I .2308(c), and 25 NCAC 01I .2302 when it failed to give Petitioner “in numerical order the specific acts or omissions that are the reasons for the disciplinary action”. Instead the Respondent numbered the issues raised by such acts or omissions, but did not number the acts or omissions that are alleged to have been the reason for the discipline.

47. The Respondent has failed to show just cause for the Petitioner's removal in as much the notice of pre-disciplinary conference, the pre-disciplinary conference and the dismissal constitute unlawful retaliation.

CONCLUSIONS OF LAW

1. The Petitioner is a career state employee subject to the provisions of Chapter 126 of the State personnel Act. N.C.G.S. 126-1.1.

2. The parties are properly before the Office of Administrative Hearings and received proper notice of the hearing in this matter. This office has jurisdiction to hear the matter and to issue a proposed decision to the State Personnel Commission, which shall render a final agency decision.

3. At the time of his dismissal, Petitioner was a career state employee entitled to the protections of the North Carolina State Personnel Act; specifically, the just cause provision of N.C. Gen. Stat. § 126-35. 4. The State Personnel Act only permits disciplinary action against career state employees for “just cause.” N.C. Gen. Stat. § 126-35.

5. Respondent has the burden of proof in this contested case hearing to show that it had just cause to dismiss Petitioner in accordance with N.C. Gen. Stat. § 126-35.

6. Administrative regulations provide two grounds for discipline or dismissal based on just cause, unsatisfactory job performance and unacceptable personal conduct. . 25 N.C.A.C. 1J.0604(b).

7. The Respondent did not satisfy its burden of showing just cause for the dismissal of the Petitioner.

8. The Respondent did not have just cause to dismiss the Petitioner.

9. Petitioner has failed to carry his burden of proof by a preponderance of the evidence that Respondent discriminated against him on the basis of his race.

10. The Petitioner has the burden of proving that his dismissal was reprisal for engaging in protected activity. The Petitioner has satisfied his burden of proving that the Respondent retaliated against him for engaging in protected activity when the Respondent terminated his employment.

11. The preponderance of the evidence showed that Respondent’s disciplinary actions against Petitioner, including the dismissal of Petitioner, were retaliatory in nature in violation of N.C. Gen. Stat. § 126-34.1(a) (3). Assuming Respondent presented legitimate, non-discriminatory reasons for its actions, Petitioner showed by the preponderance of the evidence that such reasons were pretextual and retaliatory in nature in violation of N.C. Gen. Stat. § 126-34.1((a)(3).

12. The Respondent’s dismissal of the Petitioner constitutes unlawful reprisal against Petitioner for Petitioner’s protected activity of filing formal and informal charges and complaints of discrimination with the EEOC.

DECISION

1. Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that the State Personnel Commission should REVERSE Respondent’s decision to dismiss Petitioner from his position as a Transportation Worker with the D.O.T. as being without just cause.

2. Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that the State Personnel Commission should REVERSE Respondent’s decision to dismiss Petitioner from his position as a Transportation Worker with the D.O.T. because such dismissal constitutes illegal retaliation for Petitioner’s protected activity.

3. Petitioner is entitled to back pay from the effective date of the dismissal and continuing until the final adjudication of this matter. Petitioner is entitled to reinstatement to his position. Petitioner’s personnel file is to be appropriately rectified to reflect that he was terminated without just cause. Further, pursuant to 25 N.C.A.C. 1B.0414, Petitioner shall be awarded reasonable attorney fees, based upon Petitioner’s attorney’s submission of an itemized statement of the fees and costs incurred in representing the Petitioner, in a Petition to the North Carolina State Personnel Commission for Attorney Fees.

NOTICE AND ORDER

The agency making the final decision in this contested case 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.

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. The agency that will make the final decision in this case is the North Carolina State Personnel Commission. State Personnel Commission procedures and time frames regarding appeal to the Commission are in accordance with Appeal to Commission, Section 0.0400 et seq. of Title 25, Chapter 1, Subchapter B of the North Carolina Administrative Code (25 NCAC 01B .0400 et seq.).

This the 29th day of December 2006.

______Beryl E. Wade Administrative Law Judge