State of North Carolina in the Office Of s4

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF DURHAM 03 OSP 0857

JOSEPH NICHOLS, Petitioner, ) ) v. ) ) DECISION UNIVERSITY OF NORTH CAROLINA ) AT CHAPEL HILL, ) Respondent. ) )

The above-captioned case was heard before Beecher R. Gray, Administrative Law Judge, on September 24 & 25, 2003, in Raleigh, North Carolina.

APPEARANCES

For Petitioner: Alan McSurely McSurely & Osment P. O. Box 1290 Chapel Hill, N.C. 27514

For Respondent: John P. Scherer, II Assistant Attorney General N.C. Department of Justice P. O. Box 629 Raleigh, North Carolina 27602

EXHIBITS

Admitted for Petitioner Exhibits 1-8 and 10-35. Admitted for Respondent 1. Written warning for unsatisfactory job performance, dated Jan. 25, 2002.

2. Written warning for unsatisfactory job performance, dated Aug. 9, 2002.

3. Letter from Jimmy Johnson to Petitioner providing him notice of pre-dismissal conference, dated August 19, 2002. 4. Dismissal Letter from Jimmy Johnson to Petitioner, dated August 23, 2002.

5. Memo from Chancellor James Moeser to Petitioner affirming decision of Grievance Committee to uphold dismissal.

6. E-mail complaints from Kristina Zachary about the lack of cleanliness in Petitioner's work area.

7. Performance Work Plan for Petitioner 6/1/01 thru 5/31/02.

8. Interim Appraisal for 2001-2002 dated December 2001.

9. Performance Appraisal for Petitioner dated May 29, 2002.

10. Employee Time Record, 8/12/02 thru 8/23/02.

11. Letter rescinding Step 3 grievance dated July 12, 2002.

WITNESSES

Called by Petitioner Joseph Nichols

Called by Respondent Kristina Holt Zachary Shawn Caldwell William Burston, Jr. Drake Maynard

STATEMENT OF THE CASE; ISSUE

The Undersigned dismissed Petitioner's claims of race discrimination and retaliation for lack of evidence at the conclusion of the hearing held on September 24-25, 2003. The sole remaining issue for consideration is whether Respondent had just cause for dismissing Petitioner for unsatisfactory job performance. FINDINGS OF FACT

On the basis of careful consideration of the testimony presented at the hearing, the documents and exhibits received into evidence, and the entire record in this proceeding, the undersigned finds the following:

1. The parties stipulated on the record that notice of hearing was proper.

2. At the time of his discharge, Petitioner, an African American male, had approximately ten (10) years of service with Respondent as a housekeeper. He is a citizen and resident of Durham County, North Carolina. 3 3. Respondent University of North Carolina at Chapel Hill (UNC-CH) is subject to Chapter 126 of the General Statutes of North Carolina and was Petitioner’s employer.

4. On August 23, 2002, Petitioner was discharged from UNC-CH. According to Petitioner's dismissal letter dated August 23, 2002, Respondent dismissed him because of 1) job performance, specifically, not performing his duties sufficiently, and 2) personal misconduct, specifically, arguing with his supervisor, Jimmy Johnson, and raising his voice in a public area. R Ex. 4

5. Regarding the charge of unsatisfactory job performance, the dismissal letter cited three specific examples of such performance. First, on Friday, August 9, 2002, Petitioner's supervisor, Jimmy Johnson, toured Petitioner's work area and found neither rest room cleaned. In addition, Mr. Johnson found no counter tops wiped, the sinks dirty, and the floor unswept in Room 311 in Brauer Hall dental building. Mr. Johnson also noted that he had assigned Petitioner a project to dust, damp mop, and burnish the main corridor in Brauer Hall, and that Petitioner had not completed this work. Id.

6. Next, the dismissal letter asserted that on Tuesday, August 13, 2002, Kristina Holt Zachary, who worked in Room 322 of Brauer Hall, emailed a complaint to Mr. Johnson about the cleanliness of Room 322. Ms. Zachary stated in her email that only half the trash was emptied, the floor was not cleaned from the night before, and that the room was looking very dirty. Id.

7. Third, the dismissal letter set forth that on Thursday, August 15, 2002 at 5:45 p.m., Mr. Johnson toured Petitioner's areas with him and explained to Petitioner what items were not cleaned when Mr. Johnson had toured the work area at 10:15 a.m. Bill Burston, Mr. Johnson's supervisor, had inspected these work areas earlier in the afternoon. In Room 311 the counters were not wiped and the floors were not cleaned. In the outside corridors in the 3rd floor and in Room 322 the floors also were not cleaned. Further, the cleaning of Rooms 311 and 322 was unsatisfactory. In the corridor the hallway floor outside the janitor's closet was filthy. Room 311 also had dirt on the floor between and underneath the counters and some of the sinks were not clean. Id.

8. The dismissal letter also named two incidents of misconduct on August 9 and August 15, 2002. Respondent presented no testimony at the hearing to prove these specific allegations. Id.

9. Prior to the recommendation for dismissal issued on August 19, 2002, Petitioner had received two written warnings. On January 25, 2002, Petitioner received a written warning for unsatisfactory performance, specifically not completing his work in his areas. Then, on August 9, 2002, Petitioner received another written warning for job performance, specifically attendance. R Exs. 1, 2, and 4

10. Petitioner began working in Rooms 322 and 311 in Brauer Hall as a housekeeper in the late fall of 2001. He worked the evening shift from approximately 4:00 p.m. until 12:30 a.m. Bill Burston, Petitioner's second level supervisor and Director of Housekeeping Services,

4 testified that the housekeeper for Rooms 311 and 322 in Brauer Hall performed several duties. In Room 311, a lab where dental students put together prostheses and molds, Petitioner was required to empty the trash, sweep the floor, wipe countertops and sinks, and fill the paper towel dispensers. In Room 322, which contained operatories where dental students treated patients, Petitioner was required to clean the room to a higher level. Petitioner needed to clean sinks and counters daily, empty trash, sweep and mop the floors, and dust furniture and windows. T Vol. I, pp. 117-119

11. According to Bill Burston, there were five overall principal functions in the work plan for Petitioner's job. Both prior to and after his assignment to Brauer Hall, Petitioner received "below goods" in his performance evaluations on principal functions one and five. Management attempted to work with Petitioner to improve his performance. Principal function one was: "Accomplish daily repetitive housekeeping tasks as assigned by the work schedule or supervisor." The performance expectations for this function were: "Performs assigned housekeeping tasks in a timely manner with good results according to housekeeping standards. Sources of data include observation, periodic inspection of areas, and third party reports." Principal function five was: “Manage leave time and work time properly." The performance expectations were: "Is at work station ready to begin work at the beginning of the shift. Does not leave work area prior to end of shift without approval from supervisor. Schedules planned absences with supervisor as far as [sic] in advance as possible. Notifies supervisor within 1 hour after beginning of shift for absences needed for illness or emergency. Sources of data are direct observation and review of leave records." T Vol. I, pp. 105-115; R Exs. 7, 8, and 9

12. Kristina Holt Zachary, a dental assistant, worked in Rooms 322 and 311 in Brauer Hall from March 2001 until April 2003. She typically arrived at work at approximately 7:15 a.m. and worked until approximately 5:00 p.m. Ms. Zachary primarily treated patients in the operatories in Room 322, but occasionally went into Room 311 to obtain needed materials for dental residents. According to Ms. Zachary, students performed lab work in Room 311, such as making a temporary crown, and the residents treated patients from 10:00 a.m. until 1:00 p.m. and from 2:00 p.m. until 5:00 p.m. in Room 322. Students very rarely worked in Room 322 after hours, since supervisors had to approve the treatment of a patient after business hours. Additionally, although they occasionally used the lab in Room 311 for work, students had little reason to use Room 322 after 5:00 p.m. T Vol. I, pp. 27-30, 55-57, 117-119

13. Ms. Zachary testified at the hearing that cleanliness was very important for these rooms, particularly Room 322, where the dental residents treated patients. She stated that medical waste, such as blood soaked cotton rolls or gauze, regularly was in the trash cans. Since dental residents treated patients in the clinical operatories in 322, staff needed a clean environment for cosmetic and hygienic reasons. T Vol. I, pp. 29-30

14. Ms. Zachary first noticed problems with cleanliness in Rooms 311 and 322 in early January 2002. As directed by her superiors, she sent an e-mail on January 17, 2002 complaining about the cleanliness of the floors in her work area. She noted also that there were problems with paper towels being replenished in the dispensers and the trash being emptied. Ms. Zachary was not positive of the identity of the housekeeper for her work area at that time. After this complaint, Ms. Zachary testified that Petitioner came to her and asked her to send a 5 complimentary e-mail. She testified that she sent at least one e-mail on March 20, 2002 to Petitioner's supervisor's at his request, but then noted that the cleanliness of the rooms began to deteriorate again. T Vol. I, pp. 33-34, 50; R Ex. 6; P Ex. 1

15. Following Ms. Zachary's e-mail in March 2002, the cleanliness of the rooms in Brauer Hall deteriorated. Ms. Zachary testified that for four days in a row there were no paper towels in five out of nine operatories in Room 322. Further, the trash cans were not emptied, and the floors had piles of dust and dirt. Growing frustrated with the lack of cleanliness, Ms. Zachary sent an e-mail on April 26, 2002 at 8:40 a.m. to Bill Burston. She stated that the floors had not been swept in awhile, and that the dispensers lacked paper towels. In her testimony, Ms. Zachary noted that the trash continuously was not emptied and the counters were not wiped. T Vol. I, pp. 34-40

16. Mr. Burston visited Petitioner's work area on April 26, 2002 at approximately 9:30 a.m. after receiving Ms. Zachary's e-mail. He observed that the floor indeed was dirty and not swept or mopped. Additionally, he saw waste still in the trash cans. At that time, he asked Mr. Johnson to look into the problem and Mr. Burston promised Ms. Zachary that he would fix the problem. T Vol. I, pp. 40, 120-21

17. After Mr. Burston's visit, the cleanliness improved for a short period. Yet, Ms. Zachary testified that similar problem areas returned within weeks. She testified that she often did not e-mail because she was tired of e-mailing about the same problems. On May 24, 2002 at 8:40 a.m. Ms. Zachary sent another e-mail to housekeeping supervisors. In her e-mail, Ms. Zachary complained that her work area had not been swept or mopped for almost a week. In her opinion, the floor looked so bad that she decided to sweep the area before patients arrived in the morning. She also stated in her e-mail that she was tired of e-mailing every week. T Vol. I, pp. 41-43; R Ex. 6

18. In the months subsequent to late May, Ms. Zachary testified that the cleaning of her work area was either half done or not completed at all. She said that sometimes Petitioner emptied the trash, but often the can was at least half full. The Petitioner also failed to replenish paper towels during the period. Ms. Zachary did not e-mail because she was tired of doing so, and had too many other duties to perform. T Vol. I, p. 43

19. Finally, on August 13, 2002, Ms. Zachary sent another e-mail at 7:48 a.m. complaining about Petitioner not emptying the trash. She also wrote that the floor was very dirty. Jimmy Johnson cited the facts alleged in Ms. Zachary's August 13, 2002 e-mail as one of the specific performance issues giving rise to his recommendation for dismissal for unsatisfactory job performance. R Exs. 3, 4, and 6

20. In the dismissal letter, Jimmy Johnson cited Petitioner's failure to clean the restrooms, to clean the counters, sinks, and floor in Room 311, and to dust, mop, and burnish the main corridor of Brauer Hall on August 9, 2002, as one of the specific performance issues giving rise to his recommendation for dismissal for unsatisfactory job performance. Shawn Caldwell, a zone manager for the UNC-CH housekeeper floor group, testified that on a Friday in August

6 2002, he inspected areas in Brauer Hall at the request of Jimmy Johnson. T Vol. I, pp. 73, 75, 78-80, 87; R Exs. 3, 4

21. Mr. Caldwell testified that after the cleaning shift left duty at 8:00 p.m. on that Friday in August, he inspected the hallways and bathrooms in Brauer Hall. He noted the following cleaning problems in the bathrooms: the trash was not emptied, mirrors and sinks were dirty, and the floors were dirty. Mr. Caldwell also observed that the halls had debris, dirt, and stains on the floor. He reported these problems to Mr. Johnson, and then had no further involvement in the matter. T Vol. I, pp.78-80, 100

22. In the dismissal letter, Jimmy Johnson cited Petitioner's failure on August 15, 2002 to clean the counters, sinks, and floor in Room 311, and to sweep the floors in the 3rd floor corridors and hallways and in Room 322. Mr. Burston testified that on August 15, 2002, he received a call in the morning from Brauer Hall. When Mr. Burston went to the Petitioner's work areas in the late morning, the supervisor found that the counter tops were not wiped or cleaned and there was dirt on the floor and between the sinks in Room 311. Further, Mr. Burston found that there was a pile of dirt on the floor in Room 322 and dirt on the floors in the corridor and hallways. Mr. Burston reviewed the sign-in sheets and noted that Petitioner had worked the previous evening of the 14th. T Vol. I, pp. 129-131, 205; R Exs. 3, 4, and 10

23. Upon his return from inspecting the area, Mr. Burston informed Jimmy Johnson of the problems. Mr. Burston and Mr. Johnson toured the area again later in the afternoon, and Jimmy Johnson showed Petitioner the areas of concern when Petitioner arrived for his evening shift on the 15th. T Vol. I, p. 131; R Exs. 3 and 4

24. Although Mr. Johnson drafted and initiated the decision to dismiss Petitioner for unsatisfactory performance, Mr. Burston reviewed and approved the decision before its initiation. Mr. Burston testified that he approved dismissal because Petitioner had two written warnings and many opportunities to improve his performance, and still failed to properly clean the work areas. Mr. Burston personally had walked through Petitioner's work area on more than one occasion and personally had responded to complaints by Ms. Zachary about the cleanliness of the work area. Petitioner's performance had deteriorated and there had been a multitude of complaints from Mr. Johnson and the customers. Accordingly, Mr. Burston believed that he had given Petitioner several chances and that dismissal was appropriate. T Vol. I, pp. 119-134, 141, 221

25. Petitioner made several contentions in his counsel's argument asserting a lack of just cause to dismiss him for unsatisfactory performance. Specifically, Petitioner challenged the factual bases for the three performance incidents on August 9, 13, and 15, 2002 listed in the dismissal letter. T Vol. II, pp. 17-30

26. First, Petitioner alleged in his counsel's argument that students or other individuals dirtied the work areas, particularly Rooms 311 and 322, after Petitioner had properly performed his cleaning. Petitioner, however, did not directly make this assertion during his direct or cross-examination. Nor did Petitioner make this direct assertion in any of his grievance responses or the Step 3 hearing. T Vol. II, pp. 37-121; P Exs. 21, 22, 25, 26, 28, 29, 32, 34

7 27. The evidence presented by the testimony of Kristina Zachary and Bill Burston contradicts this assertion, and is more credible. First, Kristina Zachary sent three e-mail complaints prior to her e-mail of August 13, 2002 complaining about the cleanliness of the floors, unemptied trash cans, and a lack of paper towels. She made these complaints early in the morning before the arrival of patients. On January 17, 2002, Ms. Zachary sent her e-mail complaint at 7:26 a.m. and on April 26, 2002, Ms. Zachary testified she was present in the office at 7:15 a.m. and sent an e-mail complaint at 8:40 a.m. Further, Ms. Zachary sent an e-mail on May 24, 2002 at 8:47 a.m. and on August 13, 2002 at 7:48 a.m. complaining of cleaning discrepancies. The frequency and the early morning reporting of these complaints suggest that students or other individuals did not cause the cleaning problems. T Vol. I, pp. 29-30, 57; R Ex. 6

28. Ms. Zachary also testified that students rarely used the operatories in Room 322 after 5:00 p.m., since these were patient treatment areas. Students occasionally used the lab, Room 311, to construct prostheses for crowns, but did not use the operatories for such work. Students might visit Room 322 to retrieve instruments, but nothing more. Since students were not often in Room 322 after 5:00 p.m. and during the night, and other employees or individuals did not use the room, Petitioner more likely than not caused the cleaning deficiencies noted. T Vol. I, pp. 29-30, 55-56, 117-119

29. The cleaning discrepancies found in Room 322 and the other rooms were consistent with problems left by Petitioner rather than students or other individuals. Ms. Zachary testified that the trash left unemptied in the trash cans often was medical waste, such as bloody gauze. Such medical waste more likely would have been left during the day from the treatment of patients, rather than a student working at night when patients were not allowed. Moreover, both Ms. Zachary and Mr. Burston testified about piles of dust or dirt. Both individuals, particularly Mr. Burston, believed that such piles were an accumulation of dirt, rather than something created by a student overnight. Additionally, the constant complaints about no replenishment of paper towels indicate a failure to replace the towels, rather than students using all of them overnight. Finally, the frequency of the e-mail complaints and Ms. Zachary's decision to often forego reporting cleaning discrepancies because their frequency indicates that the problem was not caused by occasional students working in the areas, but by Petitioner's cleaning inefficiency. T Vol. I, pp. 34, 36, 39, 132

30. Petitioner further has stated that he was absent from work, and therefore did not even clean the work areas on the dates of August 9, 13, and 15, 2002. He also alleged that Mr. Johnson or other individuals altered his time sheets. To support such claims, Petitioner submitted exhibits of doctors' notes and testified about medical conditions he suffered. T Vol. II, pp. 53, 59-63, 74-76; P Exs. 15-18

31. Yet, the doctors' notes did not excuse Petitioner from work during the August 8 though 15th time period, and in fact did not set forth any number of days Petitioner should have been excused from work. Petitioner did not deny being at work during August 9, 2002. Moreover, Petitioner's time sheet shows he was present for work from August 12 through August 23, 2002. Petitioner admitted the document had his signature on it, and also admitted under cross-examination that no one altered his time sheet in August 2002. Petitioner never raised 8 complaints about being absent from work during the dates in question in his grievance responses or his Step III hearing. Therefore, the evidence is that Petitioner more likely than not was at work and responsible for cleaning the work areas in Brauer Hall on August 9, 13, and 15th. T Vol. II, pp. 93, 96-97; P Exs. 21, 22, 25, 26, 28, 29, 32, 34

32. Regarding the allegations contained in the dismissal on August 9, 13, and 15, 2002, the evidence supports a finding that Petitioner did not satisfactorily perform cleaning on those dates. First, on August 9, 2002, Respondent did not present any testimony from Jimmy Johnson regarding what Mr. Johnson observed in Petitioner's work areas, since Respondent had terminated Mr. Johnson for misconduct unrelated to Petitioner's claims. Yet, Respondent presented the testimony of Shawn Caldwell, a zone manager for the UNC-CH housekeeper floor group, who testified that on a Friday in August 2002, he inspected areas in Brauer Hall at the request of Jimmy Johnson. While he did not remember the specific date, Mr. Caldwell corroborated the assertions in Jimmy Johnson's letter by observing that the counters were not wiped, the sinks were dirty and the floor was unswept in Room 311. In addition, he noted that the bathrooms were not clean and the hallways were unswept and dirty. T Vol. I, pp. 73, 75, 78- 80, 87, 100; R Exs. 3, 4

33. Although Petitioner has pointed out that Mr. Caldwell was demoted from his position for the improper approval of time cards over a year before August 2002, and that Mr. Caldwell cannot recall the specific date of his inspection of Brauer Hall, Mr. Caldwell's testimony is credible. Mr. Caldwell successfully recovered from the demotion and earned a promotion to zone manager based on his performance. Further, Mr. Burston testified that Mr. Caldwell's demotion was more for negligent performance, rather than any willful conduct, and Mr. Burston trusted Mr. Caldwell's abilities enough to promote him soon after he was allowed to do so by personnel requirements. Additionally, Petitioner's claims of properly cleaning the area on August 9, 2002 are not credible. Petitioner's performance inadequacies were documented in his work plan, performance appraisals, two written warnings, and numerous complaints from Ms. Zachary over the previous months. In fact, Petitioner's written warning on January 25, 2002 echoed the cleaning deficiencies mentioned in the dismissal letter. These problems were consistent with the problems mentioned on August 9, 2002, and corroborate Mr. Caldwell's observations. As such, the evidence shows that Petitioner failed to clean the rest rooms; counters, sinks, and floors in Room 311; and to clean the floors in the corridors of Brauer Hall. T Vol. I, pp. 83-84, 87-89, 105-112, 119-128, 134, 138-141, 149; R Exs. 1-4, 6-9

34. Regarding the accusation of August 13, 2002, that Petitioner failed to empty the trash, and clean the floor in Room 322 of Brauer Hall, Ms. Zachary's testimony is credible. Ms. Zachary complained about the cleaning of Rooms 311 and 322 for months. She consistently complained of empty paper towel dispensers, unemptied trash cans, and dirty floors. These prior complaints corroborate the complaint made on August 13, 2002 about unemptied trash and a dirty floor. Petitioner claims that Ms. Zachary liked his work and presented a couple of e-mails citing his good work compared to the previous housekeeper. But these e-mails were written months before August 13, 2002. Ms. Zachary testified that she wrote them at Petitioner's request, and that his work performance deteriorated after she sent these e-mails. Accordingly, the evidence supports Ms. Zachary's assertion that Petitioner failed to properly empty the trash and clean the floors on August 13, 2002. T Vol. I, pp. 33-44, 50, 63, 71; R Exs. 1-4, 6 9 35. Finally, regarding the claims in the dismissal letter about August 15, 2002, Mr. Burston's testimony is more credible than Petitioner's claims of always doing his work. Mr. Burston testified that he went to the Brauer Hall in late morning on August 15, 2002 after a complaint from staff in the building. He found that the counter tops were not wiped or cleaned and there was dirt on the floor and between the sinks in Room 311. Moreover, Mr. Burston testified that there was a pile of dirt on the floor in Room 322 and dirt on the floors in the corridor and hallways. Mr. Burston also testified that Petitioner had worked the previous evening. He further related that later in the day he showed the area to Jimmy Johnson, and asked Mr. Johnson to rectify the situation. T Vol. I, pp. 129-131, 205; R Exs. 3, 4, and 10

36. Petitioner's assertions about cleaning the rooms on August 15, 2002 are not credible. As discussed in previous Findings of Fact, Petitioner's assertions that someone else dirtied the area before Mr. Burston inspected are not credible. Mr. Burston testified that a pile of dirt on the floor likely would not have occurred by the conduct of someone else. Mr. Burston also testified that he received the complaint in the morning, not the afternoon. Additionally, the prior complaints from customers and Mr. Johnson, the written warnings (one of which echoed the deficiencies mentioned on August 15, 2002), work plan, and poor performance appraisals corroborate Mr. Burston's testimony and contradict Petitioner's assertion that he "always cleaned his area." T Vol. I, pp. 29-30, 34, 36, 39, 55-56, 117-119, 132 and Vol. II, pp. 108-113; R Exs. 1-4, 6-9

37. On August 19, 2002, Petitioner was notified by certified mail that a Pre-Dismissal conference was scheduled for the afternoon of August 20, 2002. R Ex. 3

38. A Pre-Dismissal conference was held on August 20, 2002, and Petitioner did not attend. Having received no further information from Petitioner, Jimmy Johnson issued a decision to dismiss Petitioner due to unsatisfactory job performance and unacceptable personal conduct on August 23, 2002. T Vol. I, p. 126 R Ex. 4

39. Petitioner was notified in the dismissal letter dated August 23, 2002 of his appeal rights regarding the dismissal. R Ex. 4

40. Petitioner filed a grievance challenging the Respondent’s decision to discharge him on September 8, 2002. In accordance with University Grievance Policy, Petitioner’s grievance began at step two because he had been dismissed and was alleging discrimination. Supervisor Bill Burston issued a step two response within the ten day period allowed by the University Grievance Policy. On October 03, 2002, Petitioner filed for an expedited step three grievance hearing. Petitioner further requested that the University waive its rule disallowing grievant legal representation during the step three hearing. In February, 2003, some eighteen (18) weeks after filing his expedited step three hearing request, Petitioner requested the University to determined what had happened to his grievance and requested that he receive a final decision so that he could file a Chapter 150B due process hearing appeal. Respondent University offered testimony during this hearing that it had suffered from staff turnover in its Human Resources Department as well as not being able to identify a suitable panel chairperson as reasons for the seven (7) month delay in giving Petitioner a step three grievance hearing. Petitioner received a Step 3 hearing on his grievance on April 8, 2002, approximately seven 10 months from his filing of the expedited grievance request. On April 22, 2003, the Chancellor of UNC-CH accepted the Step 3 panel's recommendation to uphold Petitioner's dismissal for unsatisfactory job performance. T Vol. I pp. 224, 235-236, 254; P Ex. 22; R Ex. 5

41. The State Personnel Manual states that disciplinary actions for performance-based inadequacies "are intended to bring about a permanent improvement in job performance. Should the required improvement later deteriorate, or other inadequacies occur, the supervisor may deal with new unsatisfactory performance with further discipline." See NCAC 1J.0605(a). The State Personnel Manual further provides that State employees may be dismissed for a current incident of unsatisfactory job performance provided they have at least two active disciplinary actions. See NCAC 1J.0605(b).

42. The State Personnel Manual defines “unsatisfactory job performance” as: “Work- related performance that fails to satisfactorily meet job requirements as specified in the relevant job description, work plan, or as directed by the management of the work unit or agency.” See NCAC 1J.0614(j).

43. Under N.C.G.S. § 150B-35(d), Respondent has the burden of proving that it had just cause for discharging Petitioner from employment.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case under Chapter 126 and 150B of the North Carolina General Statutes. At the time of his dismissal on August 23, 2002, Petitioner was a career State employee for purposes of the State Personnel Act, Chapter 126 of the General Statutes of North Carolina.

2. As established by the foregoing findings of fact, Petitioner's job performance on August 9, 13, and 15, 2002 failed to satisfactorily meet job requirements as specified in the relevant job description, work plan, or as directed by the management of the work unit or agency. See NCAC 1J.0614(j)

3. As established by the foregoing findings of fact, Respondent’s seven month delay in providing Petitioner a step three grievance hearing after he had made a timely request for an expedited hearing, is unreasonable and inexcusable delay, costing Petitioner money in the form of counsel fees and other associated costs which would not have been necessary had the University provided a reasonable response to his expedited hearing request. This error, while not fatal to Respondent’s case on its merits, is financially harmful to Petitioner. The State Personnel Commission is not authorized to award partial attorney's fees to a grievant unless the Commission finds discrimination, harassment, or orders reinstatement or back pay. G.S. 126- 4(11). The University should, however, on its own motion, award to Petitioner such attorney's fees and costs as may have been occasioned by the seven month delay upon submission of satisfactory documentation by Petitioner's counsel to the University when the time has run for all appeals of this litigation.

4. The evidence produced at the hearing showed that Petitioner previously had received two written warnings for job performance. One of the written warnings, on January 25, 11 2002, found that Petitioner had failed to properly clean Rooms 311 and 322 in Brauer Hall. These written warnings, the history of complaints by Ms. Zachary about the cleanliness of Rooms 311 and 322 in Brauer Hall, the Petitioner's work plan notations, and his below good ratings on his performance interim review and appraisal corroborate the testimony of Kristina Holt Zachary, Shawn Caldwell, and Bill Burston that Petitioner failed to satisfactorily perform his duties on August 9, 13, and 15, 2002. Accordingly, the evidence shows that Petitioner failed to satisfactorily meet his job requirements.

5. Based on the foregoing, Respondent had just cause to dismiss Petitioner for unsatisfactory job performance in accordance with N.C.G.S. 126-35 and the relevant provisions of the State Personnel Manual of the North Carolina Office of State Personnel.

6. Respondent's charge in its dismissal letter to Petitioner that he was being discharged for, in part, personal misconduct, is not supported by the evidence and should be dismissed.

7. Petitioner's assertion that Respondent's denial of his request for legal representation at the step three grievance hearing is unconstitutional or void as applied in this case is unconvincing. Petitioner is entitled to a pre-dismissal conference to explain his version of events and charges made against him. The evidence here is that he elected to decline the invitation to attend, as is his right. Petitioner also has the right to a post-event de novo review through the contested case hearing process under Chapter 150B with the opportunity for reinstatement, back pay, and attorney's fees, should he prevail on the merits of the case. Under these circumstances, Petitioner cannot be said to be the victim of an unconstitutional or void as applied rule on the grounds of denial of counsel at the step three grievance hearing.

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

DECISION

Respondent's charge of misconduct against Petitioner as a ground for his dismissal is DISMISSED for insufficient evidence. Respondent's decision to terminate Petitioner's employment because of unsatisfactory job performance is supported by the evidence and is affirmed.

It hereby is 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).

12 NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to the 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 ____ day of December, 2003.

______Beecher R. Gray Administrative Law Judge