State of North Carolina s14

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF DURHAM 04 OSP 1590

DR. JENNIFER L. ROUNDS-BRYANT, ) Petitioner, ) ) DECISION GRANTING v. ) RESPONDENT’S MOTION FOR ) SUMMARY JUDGMENT N.C. DEPARTMENT OF CORRECTION, ) Respondent. )

THIS MATTER came before Beecher R. Gray, Administrative Law Judge, upon Respondent’s Motions to Dismiss and for Summary Judgment filed January 4, 2004. After considering the allegations contained in the complaint, and Respondent’s brief and affidavits, to which Petitioner did not respond, and, pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, it appears to the court that the following facts are undisputed and there is no genuine issue as to any material fact and that Respondent is entitled to a judgment as a matter of law.

APPEARANCES

For Petitioner: Dr. Jennifer L. Rounds-Bryant 839 Woodgrove St. Durham, NC 27703

For Respondent: Neil Dalton Assistant Attorney General N.C. Department of Justice 9001 Mail Service Center Raleigh, NC 27699-9001

FINDINGS OF FACT

1. Petitioner filed a form Petition for Contested Case Hearing with the Office of Administrative Hearings on October 1, 2004 alleging that she was terminated from her position with the Department of Correction [“DOC”], Division of Alcoholism and Chemical Dependency Programs [“DACDP”] without just cause and because of discrimination based upon her race (Black) and sex (female). She also alleged that she was subjected to a hostile work environment beginning in March, 2004 by Deputy Secretary Fred Aikens until her termination in September, 2004. The Petition states Petitioner has sixteen (16) months of continuous state employment. Petition.

2. Petitioner was discharged from employment with DACDP effective September 17, 2004 for unacceptable personal conduct. See Document Constituting Agency Action. 3. Petitioner’s assigned secretary appealed a second written warning issued to her by Petitioner. Her appeal alleged that Petitioner was performing work for her secondary job during her scheduled State work day. As a result of this allegation, Petitioner’s immediate supervisor, Lattie Baker, requested DOC’s MIS Section to copy Petitioner’s hard drive and determine whether evidence existed to support the allegation. Affidavit of Fred Aikens at ¶ 4; Affidavit of Lattie Baker at ¶ 4.

4. On July 16, 2004, an MIS Computing Technician copied Petitioner’s assigned computer’s hard drive. On July 19, 2004, Petitioner hand-delivered to Mr. Baker a memorandum dated July 16, 2004 indicating that she had not done the things of which she was accused. Petitioner also stated that any documents found that related to internet-based teaching and two research projects were used in the creation of work products for DACDP. Affidavit of Lattie Baker at ¶ 6-7.

5. Mr. Baker informed Petitioner, on July 27, 2004, that documents obtained from her assigned computer’s hard drive showed she used the state-owned computer for secondary employment. Petitioner appeared surprised and stated that she had used her personal e-mail account in order to assure secondary employment issues were not reflected in her DOC e-mail. Mr. Baker requested Petitioner to prepare a written statement. In the witness statement, Petitioner admitted that she did use the state-owned computer for her secondary employment and that she had downloaded work assignments and other course related materials for use as personnel interviews and training activities for DACDP. Affidavit of Lattie Baker at 8-9.

6. On Petitioner’s hard drive was found four hundred thirty-one (431) e-mails, four hundred forty-two (442) temporary internet files and fifty-three (53) Word files that were related to Petitioner’s secondary employment. The files were received, prepared or modified using the state-owned computer during work days. The files disclosed use of the state-owned computer for secondary employment from approximately June 2, 2003 through July 11, 2004. Of the two hundred twenty-seven (227) work days during that period, secondary employment activities were performed ninety-one (91) of those work days. Affidavit of Fred Aiken, ¶ 7.

7. As a Deputy Secretary of 7-8 years, Mr. Aikens has approximately 558 subordinate employees of which approximately 67 are black and female. Petitioner was the first DOC employee for whom he recommended termination. Affidavit of Fred Aikens ¶ 11.

8. By written DOC policy, both using a state computer for secondary employment and hindering an investigation are disciplinary infractions. Affidavit of Fred Aikens ¶¶ 10, 11; See Attachments 8-9. CONCLUSIONS OF LAW

1. Petitioner is not a career State employee as, in her Petition, she asserts she has only sixteen (16) months of continuous state employment. N.C.G.S. § 126-1.1.

2. To survive summary judgment, the non-moving party must produce, through affidavits and other Rule 56 evidence, specific facts showing that there is a genuine issue of material fact on each element of proof essential to her case upon which she bears the burden of proof. If she fails to do so, the moving party is entitled to summary judgment. N.C.G.S. § 1A-1, Rule 56(c), N.C.R. Civ. P., Bone International, Inc. v. John C. Brooks, 304 N.C. 371, 374, 283 S.E.2d 518, 520 (1981). Only issues of material fact avoid summary judgment. Only a fact, resolution of which would prevent the party against whom it is resolved from prevailing, is material. Bone International, Inc. v. Brooks, 304 N.C. at 375, 283 S.E.2d at 520. Thus a defending party is entitled to Summary Judgment if it can show that the claimant cannot prove the existence of an essential element of his claim. Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981)(citation omitted). A Petitioner who relies on “mere belief or conjecture, or the allegations and denials contained in his pleadings,” cannot avoid summary judgment. Celotex v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986).

3. N.C.G.S.. § 126-36 allows a State employee to contest her termination if she believes that action was motivated by illegal race and/or sex discrimination. In a discrimination claim under N.C.G.S. § 126-36, the employee carries the initial burden of proof of establishing, by a preponderance of the evidence, a prima facie case of discrimination. Dept. of Correction v. Gibson, 308 N.C. 131, 136-137, 301 S.E.2d 78, 82-83 (1983). A prima facie case consists of showing that: 1) the employee is of a certain race and/or gender; 2)she was discharged; 3) she was replaced by someone of a different race or gender or that black employees were discharged and white employees were retained under apparently similar circumstances. Gibson, 308 N.C. at 137, 301 S.E.2d at 82. If the employee has made out a prima facie case, the burden shifts to the employer to articulate some legitimate, non-discriminatory reason for the employee’s rejection. Id. The burden then shifts to the employee to show that the employer’s actions are a pretext for intentional discrimination. Gibson, 308 N.C. at 139 301 S.E.2d at 84. The trier of fact is not at liberty to review the soundness or reasonableness of the employer’s business judgment when it considers whether alleged disparate treatment is a pretext for discrimination. Gibson, 308 N.C. at 140, 301 S.E.2d at 84. The ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains at all times with the employee. Gibson, 308 N.C. at 138, 301 S.E.2d at 83.

4. Petitioner has not made out a prima facie case of race or sex discrimination as she has not created a genuine issue of material fact showing that DOC’s stated reasons for her termination were a pre-text for intentional discrimination. Gibson, 308 N.C. at 136-137, 140, 141, 301 S.E.2d at 82-83. Petitioner has not refuted the State’s evidence.

5. DOC is, therefore, entitled to summary judgment. N.C.G.S. § 1A-1, Rule 56(c), N.C.R. Civ. P., Bone International, Inc. v. John C. Brooks, 304 N.C. at 371, 374, 283 S.E.2d at 518, 520. Based on the foregoing Findings of Fact and Conclusions of Law, it hereby is decided:

DECISION

It is recommended that the State Personnel Commission adopt the Findings of Fact and Conclusions of Law set forth above and affirm Respondent’s decision to discharge Petitioner for unacceptable personal conduct.

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this Proposed Decision and to present written arguments to those in the agency who will make the final decision. N.C. GEN. STAT. § 150B-36(a).

The agency is required by N.C. GEN. STAT. § 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 final decision in this contested case will be made by the North Carolina State Personnel Commission.

This the 20th day of January, 2005.

______Beecher R. Gray Administrative Law Judge