State of North Carolina s53

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 11 OSP 08380

Sherry Young, ) Petitioner, ) ) v. ) DECISION ) Division Of Child Development, ) Respondent. )

This matter was heard before the Honorable Joe L. Webster, Administrative Law Judge, on October 28, 2011 at the Office of Administrative Hearings, 1711 New Hope Church Road, Raleigh, North Carolina.

APPEARANCES

For Petitioner: Sherry Young, Pro Se 100 Black Ridge Street Morrisville, NC 27560

For Respondent: Bethany Burgon Assistant Attorney General P.O. Box 629 Raleigh, NC 27699

Jonathan Shaw Assistant Attorney General P.O. Box 629 Raleigh, NC 27699

Did Respondent unlawfully harass and discriminate against Petitioner based on her race?

APPLICABLE STATUTES AND RULE

N.C.G.S. § 126, et. seq. N.C.G.S. § 150B, et. seq. 25 N.C.A.C. 01, et. seq.

1 WITNESSES

For Petitioner: Annie Blacknall Ron Byrd Deborah Cassidy

For Respondent: None

EXHIBITS

Petitioner’s Exhibits 1-10 were admitted on behalf of Petitioner.

Respondent’s Exhibits 1-4, 8, 11, 17, 20, 24, 25, 28, 29, and 32 were admitted on behalf of Respondent.

FINDINGS OF FACT

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents, and exhibits received and admitted into evidence, and the entire record in this proceeding, the undersigned Administrative Law Judge (“ALJ”) makes the following Findings of Fact. In making these Findings of Fact the ALJ has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including, but not limited to the demeanor of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable and whether the testimony is consistent with all other believable evidence in the case.

1. That jurisdiction is proper and that this matter was properly before the Office of Administrative Hearings.

2. That Petitioner Sherry Young alleges various acts of unlawful workplace harassment and discrimination on behalf of her employer, the North Carolina Department of Health and Human Services, Division of Child Development. These allegations included, but were not limited to Petitioner’s perception of harassment regarding the CCDF workgroup assignment; a meeting with Ron and Fay on March 25 to discuss better communication between and Fay and Sherry; Mary Piteo being allowed to work from home on July 31, 2010, but Sherry had not been allowed to work from home; Mary Piteo and Connie McAdams received new office furniture, but Sherry had been previously denied new office furniture by Fay. However Sherri did receive new office furniture on September 27, 2010 after requesting this consideration through Section Chief, Deborah H. Cassidy. (R. Ex. 3)

3. Petitioner filed an Employee Grievance with the North Carolina Department of Health and Human Services alleging unlawful workplace harassment on April 1, 2011. (R Ex 1) This filing included a detailed timeline listing various alleged harassing acts that took place within the

2 Policy Unit of the Subsidy Services Section at Division of Child Care from December 28, 2010 to March 25, 2011. (R Ex 1, pp. 2-6)

4. Petitioner filed her grievance pursuant to the procedure required by statute and regulation. This grievance alleged workplace harassment and hostile work environment. (R Ex 1) However, in his complaint, Petitioner claims that many of the alleged actions took place as far back as July 13, 2010 when she began working at DCD with the Policy Unit.

5. N.C.G.S. § 126-34 requires that an employee must file a written notice to the employer of a harassment claim prior to filing a petition for contested case hearing.

6. 25 N.C.A.C. 01I .2310(a) provides in pertinent part: “Grievances which allege unlawful workplace harassment must be submitted in writing to agency management, within 30 calendar days of the alleged harassing action, and the agency must be given 60 calendar days in which to take remedial action.”

7. Petitioner was asked by her supervisor, Fay Lewis, to take a lead position on the CCDF workgroup. Petitioner told her supervisor that she did not wish to participate on the workgroup, but Petitioner was still summoned to the meeting. Ron Byrd, Section Chief of the Subsidy Section at DCD, testified that he was responsible for adding Petitioner’s name to the CCDF roster. (T pp. 63-64; R Ex 1, pp. 2-6) Petitioner testified that as a result of the CCDF assignment, she arranged to speak with DCD Director, Deb Cassidy, regarding problems with Ms. Lewis. (R Ex 2)

8. On March 24, 2011, Petitioner received a notification from Fay Lewis that she was to attend an Intercommunication Meeting held on March 25, 2011. The attendees scheduled for this meeting were Fay Lewis, Ron Byrd and Petitioner. (R Ex 1, p 3)

9. The purpose of the meeting was to improve communication between Petitioner and her supervisor, Ms. Lewis. (TT pp. 72-74; R Ex 1, p 2)

10. Petitioner believed the meetings were retaliation against her for meeting with Director Cassidy to discuss Petitioner’s CCDF Plan committee appointment. (R Ex 1, p 4)

11. On April 18, 2011, Ron Byrd, Section Chief of the Subsidy Section at DCD, received notification of an Unlawful Workplace Harassment and Hostile Work Environment Grievance from Director Deb Cassidy. ( R Ex 2, p 1)

12. Mr. Byrd was tasked with conducting an investigation into Petitioner’s allegations. Over the course of his DCD investigation, Mr. Byrd met with Petitioner, Fay Lewis, and the remaining two other employees with direct report to Ms. Lewis within the Policy Unit to determine if evidence existed to support the claim of unlawful workplace harassment and hostile work environment. (R Ex 2)

3 13. The investigation process determined that unlawful workplace harassment and a hostile work environment were not substantiated as defined in the State Personnel Manual. (R Ex 2, p 11)

14. The DCD investigation recommended that Ms. Young be permanently assigned to a supervisor other than Ms. Lewis as past miscommunications and failure to clarify assignments and job classification requirement created an atmosphere within the Policy Unit not conducive to productivity. Additionally, Ms. Lewis was to received additional training in Unlawful Workplace Harassment and Hostile Work Environment policy, Ms. Lewis’ current Performance Management Plan assessment was to reflect the concerns indicated in the DCD investigation, and Ms. Lewis and her supervisor were to establish a formal development plan in accordance with the Performance Management Plan that reflects the needed development of skills required to successfully supervise staff. (R Ex 2, pp. 11-12)

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings (OAH) has jurisdiction over the parties and the subject matter pursuant to Chapter 126 and Chapter 150B of the North Carolina General Statutes and has the authority to issue a decision to the State Personnel Commission (SPC) which will make a final decision. The parties are properly before the Office of Administrative hearing.

2. Petitioner has the burden of proof to show unlawful workplace harassment based on race resulting in a hostile work environment.

3. A state employee may file a petition for contested case hearing based on unlawful workplace harassment based on N.C.G.S. § 126-34.1(10) which prohibits “[h]arassment in the workplace based on upon age, sex, race, color, national origin, religion, creed, or handicapping condition, whether the harassment is based upon the creation of a hostile work environment or upon a quid pro quo. In addition, a state employee may bring a contested case before OAH based on retaliation for protesting unlawful workplace harassment pursuant to. N.C.G.S. § 126-36(b)(2).

4. N.C.G.S. § 126-34 requires that an employee must file a written notice to the employer of his harassment claim prior to filing a petition for contested case hearing.

5. 25 N.C.A.C. 01I .2310(a) provides in pertinent part: “Grievances which allege unlawful workplace harassment must be submitted in writing to agency management, within 30 calendar days of the alleged harassing action, and the agency must be given 60 calendar days in which to take remedial action.”

6. An employee may file a grievance for unlawful workplace harassment through the departmental grievance procedure. “Filing such a written complaint shall be a prerequisite to any further appeal to the State Personnel Commission regarding unlawful workplace harassment.” 25 N.C.A.C. 01J . 1101(e)

4 7. 25 N.C.A.C. 01I .2310(c) provides that untimely grievances must be dismissed. “Allegations of discrimination, if raised more than 30 calendar days after the party alleging discrimination became aware or should have become aware of the alleged discrimination, must be dismissed.”

8. The Department of Health and Human Services has implemented a grievance procedure that includes the filing of unlawful workplace harassment grievances which complies with the North Carolina Administrative Code rules identified above. (DHHS Directive Number III-8 -- R Ex 2)

9. The only actions that come within the time frame required by the North Carolina Administrative Code are those actions which took place within the 30 days prior to filing Petitioner’s complaint with DHHS. Petitioner has timely filed a complaint on the following grounds: 1) Petitioner’s assignment to work on the CCDF Plan workgroup and 2) Intercommunication meetings with Ms. Lewis and Mr. Byrd.

10. As Petitioner dated many of her allegations, it was clear from the complaints and the testimony of the witnesses, that all of her complaints except for the two listed above were untimely as being outside of the 30 day time frame. All of Petitioner’s other complaints are untimely, and are therefore dismissed.

11. The courts of North Carolina look to decisions of the courts of the United States for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases. North Carolina Department of Correction v. Gibson, 308 N.C. 131, 136-147, 301 S.E.2 78, 82-88 (1993).

12. The evidentiary framework in cases Under Title VII involving unlawful workplace harassment differs from cases involving an ultimate employment decision such as termination, suspension, demotion or hiring. Cases involving discrimination in such ultimate employment decisions involve a burden shifting scheme as spelled out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S.Ct. 1817 (1973), and its progeny.

13. However, in unlawful workplace harassment cases, there is no burden shifting involved. The evidentiary burden remains at all times with the Petitioner. In order to prove that Petitioner suffered from a “discriminatorily hostile or abusive work environment,” the Petitioner has the burden to prove that the harassment was (1) unwelcome, (2) because of race, (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere, and (4) imputable to the employer. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed. 2d 295 (1993)

14. Unlawful workplace harassment is defined as “unsolicited, and unwelcome speech or conduct based upon race, sex, creed, religion, national origin, age, color, or disabling condition as defined by G.S. 168A-3 that creates a hostile work environment or circumstances involving quid pro quo.” 25 N.C.A.C. 01J .1101(b)

5 15. Hostile work environment is defined as “one that both a reasonable person would find hostile or abusive and one that the particular person who is the object of the harassment perceives to be hostile or abusive. Hostile work environment is determined by looking at all of the circumstances, including the frequency of the allegedly harassing conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance.” 25 N.C.A.C. 01J .1101(b)(1)

16. There is no evidence that Petitioner was forced to participate in the Intercommunications meeting with Ms. Lewis and Mr. Byrd due to her race. Petitioner claims that she was the only African-American to be asked to take part in the Intercommunication meeting. Respondent’s evidence disputes Petitioner’s claim inasmuch as the purpose of the meeting was to give Ms. Lewis and Petitioner the opportunity to develop a strong line of communication within the workplace. Even if Petitioner’s claims were true, the circumstances were not sufficiently pervasive or severe to alter the conditions of Petitioner’s employment. There may have been communication problems, but these problems do not amount to racial discrimination.

17. If Petitioner’s untimely claims were indeed timely, thus giving this court jurisdiction to hear the claims, none of the claims amount to unlawful workplace harassment resulting in hostile work environment.

18. Petitioner presented no evidence that her working conditions at DCD were sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere, nor that any of her working conditions were based on her race. Petitioner may have been confused regarding her specific job responsibilities, but there was no underlying motive of harassment or hostility in Ms. Lewis’ request of Petitioner to serve on the CCDF workgroup. She was simply requesting Petitioner to perform her functions as listed in her job description as an Administrative Officer III.

19. The types of difficulties that Petitioner encountered arise routinely in employment relationships. As the Fourth Circuit Court of Appeals stated:

They are the inevitable by-product of the rough edges and foibles that individuals bring to the table of their interactions. Law does not blindly ascribe to race all personal conflicts between individuals of different races. To do so would turn the workplace into a litigious cauldron of racial suspicion. Instead, legally sufficient evidence is required to transform an ordinary conflict . . . into an actionable claim of discrimination. The need for legally sufficient evidence of discrimination is critical in the context of this lawsuit. Otherwise, [employers] could not evaluate employees of a different race without the prospect of a lawsuit.

Hawkins v. Pepsico, 203 F.3d 274 (2000) (citations omitted) Evidence is legally insufficient if the individual’s claim is based on speculation and conjecture which is the case here.

6 20. The evidence put forth by Petitioner does not meet the burden for demonstrating that Respondent’s conduct constituted unlawful workplace harassment or hostile work environment.

DECISION

Respondent’s Motion for Directed Verdict is granted as Petitioner failed to meet her burden in producing sufficient evidence to substantiate her claims of Unlawful Workplace Harassment and Hostile Work Environment.

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714 in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The Decision of the Administrative Law Judge is this Contested Case will be reviewed by the agency making the final decision according to standards found in N.C. G.S. §150B-36(b)(b1) and (b2). The agency making the Final Decision in this contested case is required to give each party an opportunity to file exceptions to this Decision and to present written arguments to those in the agency who will make the final decision, in accordance with N.C.G.S.§ 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 agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.

This the 30th day of January, 2012.

______Joe L. Webster Administrative Law Judge