State of North Carolina s96

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF MECKLENBURG 02-OSP-2293 ______

Michael J. Stolarik, Sr. ) Petitioner, ) ) DECISION v. ) ) Piedmont Behavioral Health Care ) Respondent. ) ______

The above-captioned proceeding coming on to be heard and being heard before Administrative Law Judge Sammie Chess, Jr. in the Cabarrus County Courthouse, Concord, North Carolina, on August 7 and 8, 2003, and in the Guilford County Courthouse, High Point, North Carolina on October 7, 2003.

STATEMENT

At the conclusion of the hearing the Court directed the parties to submit proposed decisions for the Court to consider and both parties complied. The Court then reviewed each proposed decision in light of the testimony given at the hearing, exhibits admitted into the record, arguments and all other admissible evidence. After doing this review, the Court finds Respondent’s proposed decision to be accurate and appropriate in all essential details and therefore adopts that decision with minor changes.

APPEARANCES

For the Petitioner: Petitioner appeared pro se.

For the Respondent: Michael W. Taylor Attorney at Law P.O. Box 65 Albemarle, NC 28002

WITNESSES

For the Petitioner: Petitioner, Susan Stoker, Peggy Lawrence, Melanie Hylton, Jamil Davis, Pam Adcock, Gail Wilson, Nancy Shinn, Karen Hinson, Cynthia Leonard, and Susan Jones

For the Respondent: David Jones, Carla Carpentier, Teresa Renee Adams, Sharon McManus, Florence Warren, Sue Marchetti, Ann Taylor

1 EXHIBITS

For the Petitioner

Exhibit 1 Ten xeroxed pages relating to Petitioner’s alleged employment with Metro-Dade Police Department

Exhibit 4 Summary made by Carla Carpentier of 10/22/03, telephone conversation with Jamil Davis

For the Respondent

Exhibit 1 7/3/02 letter to Sue Marchetti

Exhibit 2 7/15/03 Report by Petitioner to David Jones on Patterson summer trips

Exhibit 3 7/16/02email from Sue Marchetti to David Jones and Ann Taylor

Exhibit 4 Group Outing Transportation Plans June 10-13, 2002

Exhibit 5 Group Outing Transportation Plans June 18-19, 2002

Exhibit 6 7/18/02 Disciplinary Write up

Exhibit 6A 7/26/02 Response of Petitioner to David Jones's disciplinary write-up.

Exhibit 7 8/2/02 Letter to Petitioner from Dan Coughlin, Area Director

Exhibit 8 Fleet management procedure

Exhibit 9 Group outing transportation procedure

Exhibit 10 Alcohol and drug free workplace procedure

Exhibit 11 Emails dated 8/23/02, 8/26/02, 8/27/02, 10/11/03, 10/23/03

Exhibit 11A David Jones's calendar Aug. 26-30, 2002

Exhibit 12 David Jones's 10/16/02 investigation notes

Exhibit 13 10/18/02 Letter from David Jones to Petitioner, re: Pre-disciplinary conference

Exhibit 14 10/19/02 Statement signed by Florence Warren

Exhibit 15 10/21/02 Statement signed by Sharon McManus

2 Exhibit 16 Handwritten statement of Teresa Adams

Exhibit 17 Summary of 10/22/02 telephone conversation with Florence Warren

Exhibit 18 Summary of 10/22/02 telephone conversation with Sharon Wilson

Exhibit 19 10-23-02 Termination Memo from David Jones to Petitioner

Exhibit 19A 11/4/02 appeal of termination by Petitioner and 11/20/02 Letter upholding termination to Petitioner from Daniel Coughlin, Area Director

Exhibit 20 11/6/02 Statement of Peggy Lawrence

Exhibit 21 11/6/02 Statement of Melanie Hylton

Exhibit 22 Petitioner’s 11/15/00 Application for employment with Respondent

Exhibit 23 2/8/01 National Safety Council certification

Exhibit 24 1/19/01 Residential agreement signed by Petitioner

Exhibit 25 1/19/01 Employee handbook confirmation signed by Petitioner

Exhibit 26 1/25/01 Certificate of attendance "Personnel training for managers"

Exhibit 27 2/7/01 Orientation confirmation

Exhibit 28 2/7/01 Employee Credo signed by Petitioner

Exhibit 29 2/8/01 Code of Conduct signed by Petitioner

Exhibit 30 Code of Ethics/ Code of Conduct procedure

Exhibit 31 Disciplinary Process procedure

Exhibit 33 Respondent's March 18, 2003 deposition of Petitioner, pp. 16-22, p. 63

Exhibit 34 Metro-Dade Police Department Personnel Record of Petitioner

Exhibit 35 Time Sheets-Cherokee trip

Exhibit 36 8-15-03 Letter from Metro-Dade

Exhibit 37 Resume of Petitioner attached to 2000 application for employment (Ex. 22)

Exhibit 38 Letter from Florida Dept. of Law Enforcement, October 22, 2003

3 Exhibit 39 Letter from Monroe County, FLA, Sheriff's Department dated 10/22/03.

ISSUES

Was Petitioner discharged for just cause as required by G.S. 126-35(a)?

Did Petitioner present a prima facie case of reverse discrimination?

PROCEDURAL BACKGROUND

1. This is an administrative proceeding brought under the provisions of North Carolina G.S. Chapter 126 and 150B by Petitioner through a petition dated December 19, 2002, filed in the Office of Administrative Hearings challenging his termination by Respondent on November 20, 2002, on the grounds that Respondent had “otherwise substantially prejudiced my rights” and “acted erroneously, failed to use proper procedure, acted arbitrarily and capriciously”.

2. Respondent filed Preheating Statement on January 17, 2003, stating that “Respondent discharged Petitioner for just cause, to wit, unacceptable personal conduct” and providing supporting allegations.

3. Respondent took the deposition of Petitioner on March 18, 2003.

4. Petitioner on March 18, 2003, served upon Respondent a set of interrogatories and requests for production which included requests for discovery related not only to Petitioner’s termination but also to an earlier July 2002 suspension, to which Respondent objected. On April 17, 2003, Respondent filed Motion in Limine seeking to bar Petitioner from adducing testimony or otherwise presenting evidence relating to the July 2002 suspension on the grounds that Petitioner did not seek review of said suspension in the Office of Administrative Hearings after denial of appeal by Respondent’s Area Director and therefore said suspension was res judicata, but the court denied Respondent’s motion by order dated May 6, 2003.

5. This case was set for hearing in Cabarrus County by and with the consent of the parties and came on for hearing on August 7, 2003, at which time both parties announced to the court that they were ready for trial.

FINDINGS OF FACT

After hearing the testimony of the witnesses of both parties and reviewing the exhibits admitted into evidence, the court makes the following:

1. Petitioner was employed by Respondent as a group home manager in January 2001 (Administrative Hearing Transcript, pp. 27, 173, 247, 256) and worked in that capacity until terminated by the Respondent.

4 Drinking by Staff on Overnight Trips with Clients to Cherokee, North Carolina, and Charleston, South Carolina

2. In June 2002, Petitioner was the manager of Respondent’s Patterson Group Home in Monroe, North Carolina.

3. Patterson Group Home, during the time it was managed by Petitioner, was a group home for severely disturbed male youths ages eight through 17 (Administrative Hearing Transcript, p. 28) with major psychiatric disabilities including sexually aggressive and assaultive behaviors, conduct disorders, depression and anxiety, oppositional defiant disorder, and post traumatic stress disorder (Administrative Hearing Transcript, pp. 28-29, 176, and 374-378). The Patterson Group Home clients were emotionally fragile. (Administrative Hearing Transcript, p. 175) Security, calmness and stability are very important in treating these clients. (Administrative Hearing Transcript, p. 375) It is very important that staff set a good example for these clients, and (Administrative Hearing Transcript, p. 374) The Patterson Group Home staff served as substitute parents and as role models for the clients. (Administrative Hearing Transcript, p. 213).

4. In June 2002, Petitioner led staff and resident clients of Patterson Group Home on two out-of-town trips for the benefit of resident clients for educational purposes and therapeutic purposes (Administrative Hearing Transcript, p. 33): a trip to Cherokee, North Carolina, from June 10 through June 13, 2002, (the “Cherokee trip”) and a trip to Charleston, South Carolina, from June 18 through June 20, 2002 (the “Charleston trip”. (Respondent’s Exhibits 2, 4 and 5).

5. Five staff members went along on the Cherokee trip: Petitioner and four members of the Patterson Group Home staff under Petitioner’s supervision including Peggy Lawrence, who was a YPA III (Youth Program Assistant III) (Administrative Hearing Transcript, p. 292), Melanie Hylton, Amy Schlappich, and Mary McNeely.

6. Four clients who were residents of Patterson Group Home were taken on the Cherokee trip: a 16-year-old sex offender, two nine-year-old males diagnosed with defiant disorder, and a 16-year-old male diagnosed with assaultive behavior. Some of these clients were suffering from mental illnesses including ADHD, bipolar and conduct disorder. All of the clients at Patterson tended to be assaultive. (Administrative Hearing Transcript, pp. 43, 315-316 and 440-441).

7. On June 6, 2002, Petitioner completed a Group Outing Transportation Plan for the Cherokee trip in which Petitioner stated that the client-staff ratio for the trip would be 4:5 (four clients and five staff, including five females and one male). The normal client-staff ratio at Patterson Group Home is one to four (Administrative Hearing Transcript, p. 44). However, a higher client-staff ratio is appropriate when taking more difficult clients on an outing. (Respondent's Exhibit 9, Administrative Hearing Transcript, p. 177, p. 247). Problems to be expected with the Patterson Group Home clients included becoming physically aggressive, eloping (Administrative Hearing Transcript, p. 43) and attempting suicide. (Administrative Hearing Transcript, p. 317).

8. For lodging for all clients and staff for the three-night stay during the Cherokee trip, a house was rented with Respondent’s funds.

5 9. Petitioner allowed staff to consume alcoholic beverages on the Cherokee trip. (Administrative Hearing Transcript, p. 405). While at Cherokee, on the night of June 11, 2002, Petitioner left Peggy Lawrence alone at the rental house with the four clients and then went with the other three staff members (Melanie Hylton, Amy Schlappich, and Mary McNeely) to Harrah’s casino for about one and a half hours. From Harrah’s Casino, Petitioner intended that he and staff would stop by a bar so that staff could have an alcoholic drink. However, Petitioner and staff were informed that they were in a dry county, so they stopped by a store five miles away and picked up a six pack of beer for the staff. Petitioner and staff then returned to the rental house where staff and clients were staying, and staff, with Petitioner’s permission drank beer in a carport that was attached to the house. (Respondent's Exhibit 2, Administrative Hearing Transcript, p. 405).

10. The consumption of an alcoholic beverage by the staff on the premises at Cherokee where the Patterson Group Home clients were housed was detrimental to the well-being of those clients in that this drinking tended to impair the judgment and skills of the staff to respond to the needs of the clients and emergencies arising from the clients’ illnesses and actions and this drinking exposed the clients to a bad example whether the clients actually observed the drinking or smelled the alcohol on the breath of the staff. (Administrative Hearing Transcript, p. 213, p. 374).

11. Respondent’s Alcohol and Drug Free Workplace Procedure states “Piedmont Behavioral Healthcare is therefore committed to maintaining a safe and healthy workplace free from the influence of alcohol and drugs” and prohibits “3. Unauthorized use, manufacture, distribution, dispensation or possession or any sale of alcohol on Agency premises or Agency business, in Agency owned vehicles, or during working hours; 4. Storing in a file cabinet, desk, automobile or other repository on Agency premises any illegal drug, drug paraphernalia, any controlled substance whose use is unauthorized, or any alcohol.” Said policy defines “Drug-Free Workplace” as “a site for the performance of work done in connection with any and all activities of Piedmont Behavioral Healthcare.” (Respondent's Exhibit 10).

12. Respondent's Employee Credo signed by Petitioner on February 7, 2001, states that "[e]ach employee is expected to . . . [e]xercise watchfulness in the performance of duties to eliminate potential hazards, and protect co-workers and clients . . . [and to ] . . . [r]ender full and efficient service to clients . . . [and to ] . . . [c]omply with the Piedmont Behavioral Healthcare Alcohol and Drug Free Workplace procedure." [Respondent’s Exhibit 28].

13. On February 9, 2001, by signing Respondent's Code of Conduct for MHSA Direct Service/Client Care Staff, Petitioner pledged as follows

Substance Use and Abuse

I will comply with agency Alcohol and Drug Free Workplace Procedure #5115 by: 1. Not coming to work under influence of alcohol/drugs, 2. Not using alcohol/drugs while on the job, 3. Not possessing and/or using alcohol/drugs in the presence of client(s), 4. Not encouraging the

6 use of alcohol/drugs among clients or fellow employees through verbalizations, dress or other behaviors on the job.

14. Petitioner was fully aware of Respondent's Alcohol and Drug Free Workplace procedure, had a copy of it with him, and reviewed it at Cherokee prior to and at the time he gave staff permission to purchase, transport and drink beer on the premises of the house rented by the Respondent and occupied by the clients. (Administrative Hearing Transcript, pp. 434-438).

15. There is no reasonable interpretation of Respondent's Alcohol and Drug Free Workplace procedure under which it was acceptable for Petitioner to give permission to staff to drink under the facts of this case on the Cherokee trip.

16. Petitioner had no authority to authorize drinking by staff on the Cherokee trip (Administrative Hearing Transcript, p.p. 210-211).

17. Petitioner violated Respondent's work rules by allowing staff under his supervision to purchase alcoholic beverages, to transport alcoholic beverages in a private car being used for a trip paid for and sponsored by Respondent and to consume alcoholic beverages on premises rented with Respondent's funds and occupied by juvenile clients suffering from severe mental illnesses. (Administrative Hearing Transcript, p. 210).

18. For June 18-20, 2002, Charleston trip, Petitioner submitted a Group Outing Transportation Plans dated June 14, 2002, in which Petitioner stated that the client:staff ratio for the Charleston trip would be 6:4 (Respondent's Exhibit 5). However, Petitioner only took three staff members along with him on said trip: Peggy Lawrence, Melanie Hylton, and Cynthia Leonard (Respondent's Exhibit 2). Two of Respondent's vehicles were take on this trip (Respondent's Exhibit 5).

19. On the Charleston trip, Melanie Hylton and Cynthia Leonard took along a bottle of vodka in their luggage and drank the vodka in their motel room after clients had gone to bed. (Respondent's Exhibit 2 and Exhibit 5, Administrative Hearing Transcript, pp. 325-326 and p. 389).

20. Staff members, Melanie Hylton and Cynthia Leonard violated Respondent's prohibitions against transporting alcoholic beverages in an agency vehicle and consuming alcohol during the Charleston trip with clients because "[t]hey made the assumption that since they were allowed to have beer on the previous trip that it would be cheaper for them and OK to bring it with them," by Petitioner's own written statement dated July 15, 2003. (Respondent's Exhibit 2).

21. The consumption of alcoholic beverages by staff members on the Charleston trip was detrimental to the well-being of those clients in that this drinking tended to impair the judgment and skills of the staff to respond to the needs of the clients and emergencies arising from the clients’ illnesses and actions and this drinking exposed the clients to a bad example whether the clients actually observed the drinking or smelled the alcohol on the breath of the staff.

7 22. On both the Cherokee and Charleston trips, the staff under Petitioner’s supervision were on duty when not asleep. Said staff was not free to leave the premises and to come and go when they pleased, and they were not free to take a meal break and eat when they pleased. Said staff was in “waiting to be engaged” status when awake and not actively supervising clients. Said staff was in a situation where they could be called upon at any time to engage in activities with clients.

23. It was inappropriate under any reasonable interpretation of Respondent’s work rules for Petitioner to authorize the drinking by staff on the Cherokee trip.

Undermining Superiors by Statements to Staff

24. In August, 2002, Respondent closed the Patterson Group Home and assigned Petitioner as manager of its Stepping Stone Group Home in Rowan County, North Carolina along with members of the Patterson Group Home staff including Peggy Lawrence, Melanie Hylton, and Susan Stoker. (Administrative Hearing Transcript, p.52, p.417).

25. On Monday, August 26, 2002, a 7:30 AM meeting was held with staff at Stepping Stone Group Home.

26. Patterson closed due to low census and the fact that is was losing money. Respondent's management communicated truthfully to staff about the reason for the closing of Patterson (Administrative Hearing Transcript, p. 182).

27. Tensions developed in Stepping Stone Group Home after Petitioner arrived between the staff who came with Petitioner from Patterson Group Home and the staff who had remained at Stepping Stone Group Home (Administrative Hearing Transcript, p. 56).

28. On Monday, August 26, 2002, at 7:30 o'clock a.m., Respondent's Assistant Deputy Director for Mental Health and Substance Abuse Service, David Jones, Petitioner's immediate supervisor, held a meeting for Stepping Stone staff to work on communication issues and the tensions and the problems that had developed between old and new staff at Stepping Stone Group Home (Administrative Hearing Transcript, pp. 26-27, 56-57, Respondent's Exhibit 11A).

29. David Jones attended the first part of the 7:30a.m., August 26, 2002, meeting at Stepping Stone Group Home (Administrative Hearing Transcript, p.56), but then left (Administrative Hearing Transcript, p.156). After David Jones left and after the main meeting was over (Administrative Hearing Transcript, p. 164), Petitioner told staff present, including Florence Warren, Sharon McManus, Jamil Davis, Peggy Lawrence and Melanie Hylton, that David Jones was being untruthful about the Requests for Proposals (RFPs) relating to the transition to the Alexander Children's Center (Administrative Hearing Transcript, pp. 155-156, 159) and whether or not the Patterson Group Home would be reopening (Administrative Hearing Transcript, p165). Petitioner told Stepping Stone staff present that David Jones didn't tell the truth about the opening and closing of Patterson Group Home and the Requests for Proposals that were taking place. (Respondent's Exhibit 15, 17, 18, Administrative Hearing Transcript, pp.

8 155-156, 159). Petitioner told staff that they "could not trust David Jones because he did not tell the truth." (Respondent's Exhibit 14, Administrative Hearing Transcript, pp. 165, 167-168).

30. Respondent in August, 2002, operated two group homes in Rowan County, Stepping Stone Group Home and Turning Point Group Home. Turning Point Group Home's manager was Teresa Adams (Administrative Hearing Transcript, p. 52).

31. In a cell telephone conversation with Teresa Adams on the evening of Friday, August 23, 2002, Petitioner stated "Everyone knows that David and Sue are liars. That's evident in what happened in Union." (Respondent's Exhibit 16, Administrative Hearing Transcript, p. 122).

32. The statement made by Petitioner to staff under his supervision and to a peer employee violated the provisions of Respondent's Employee Credo that "Each employee it expected to …[e]xercise courtesy and tact in dealing with follow workers…" (Respondent's Exhibit 28.) Further said statements of Petitioner violated the provision requiring "Procedure and Policy Adherence" in Respondent's Code of Conduct for MHSA Direct Service/Client Care Staff, under which Petitioner pledged in writing on February 9, 2001, "I will not passively resist or attempt to undermine management". (Respondent's Exhibit 29, Administrative Hearing Transcript, p. 257).

33. On October 11, 2002, Teresa Adams informed Susan Marchetti, Respondent's Deputy Director of Mental Health and Substance Abuse Services and David Jones's supervisor that Petitioner had called Susan Marchetti and David Jones liars. (Administrative Hearing Transcript, p.59, p. 170, pp. 183-184, pp. 135-136) A statement was obtained from Teresa Adams concerning the alleged statement of Petitioner made to her. (Respondent’s Exhibit 16).

34. Susan Marchetti informed David Jones and Ann Taylor, Respondent's Director of Human Resources, about Teresa Adams’ allegations that Petitioner had called Susan Marchetti and David Jones liars. (Administrative Hearing Transcript, p. 185).

35. Respondent conducted a full investigation of the allegations made by Teresa Adams. On or about October 16, 2002, David Jones conducted an investigation of Teresa Adams' allegations by interviewing Florence Warren, Sharon McManus and Jamil Davis (Respondent's Exhibit 12) who confirmed that Petitioner had told staff in a meeting at Stepping Stone Group Home that his superior, David Jones, and Sue Marchetti, Deputy Director of Mental Health and Substance Abuse Services, were untruthful and could not be trusted. Subsequently, Florence Warren prepared and submitted to David Jones a written statement dated October 19, 2002, stating that Petitioner had made statements to staff that his superior, David Jones, was untruthful and could not be trusted. (Administrative Hearing Transcript, p. 165, Respondent’s Exhibit 14). Also, Sharon McManus (also known as Sharon Wilson) prepared and submitted to David Jones a written statement dated October 21, 2002, also stating that Petitioner had made statements to staff that his superior, David Jones, was untruthful and could not be trusted. (Administrative Hearing Transcript, p.158, Respondent’s Exhibit 15). On October 22, 2003, Carla Carpentier, Human Resources Manager and Assistant to Respondent’s Human Resources Director (Administrative Hearing Transcript, p.104), interviewed Florence Warren, Sharon McManus, and Jamil Davis by telephone to confirm their statements (Administrative Hearing Transcript, p.

9 59, pp. 107-110, p.166, p. 159, p. 339,). Florence Warren and Sharon McManus re-confirmed to Carla Carpentier the substance of their previous statements written statements (Respondent’s Exhibits 17 and 18), but Jamil Davis said that, while he did hear someone say during the meeting, “he is probably a liar,” he did not hear Petitioner say specifically that David Jones and Sue Marchetti were liars (Petitioner’s Exhibit 4).

36. After a pre-dismissal conference, Petitioner was given a memorandum dated October 23, 2002, notifying Petitioner that he was being terminated effective October 23, 2002 (Respondent’s Exhibit 19). Said memorandum stated:

“The basis for this decision is as follows:

 Unacceptable personal conduct, it has been confirmed by more than one investigator that you have made statements regarding management being untruthful and untrustworthy. As a manager, your remarks have created an unstable work environment. This is unacceptable personal conduct, does not conform to the agency code of conduct and undermines the efforts of management.”

37. Petitioner appealed his termination to Respondent’s Area Director on November 4, 2002 (Respondent’s Exhibit 19A). Additional written statements dated November 6, 2002, favorable to Petitioner, were obtained from Melanie Hylton, who said she could not remember details of what was said (Respondent's Exhibit 21), and from Peggy Lawrence who said that Petitioner said, “There was question about Mike, Melanie and I returning to Patterson and how long we would be at S.S. Mike quoted David as saying we could be opening Patterson on 1 day’s notice. Staff then reported on rumors they had heard: Mike said not to believe everything they heard, that he would keep them informed on the facts as decisions were made by management.” (Respondent's Exhibit 20).

38. Respondent’s Area Director upheld Petitioner’s termination on November 20, 2002. (Respondent's Exhibit 19A).

39. Petitioner lacks credibility because the preponderance of the evidence produced by Respondent to impeach Petitioner shows that he testified untruthfully under oath both in his deposition on March 18, 2003, and at the hearing of this matter that he was previously employed by the Metro Dade Police Department in Miami, Florida, for 15 years:

A. In Respondent’s deposition of Petitioner taken on March 18, 2003 (Respondent’s Exhibit 33), Petitioner testified as follows: i. Petitioner stated that he worked for Metro-Dade Police Department as a police officer for 14 years (Respondent’s Exhibit 33, Administrative Hearing Transcript, p. 16, lines 12-13). ii. Petitioner stated that he left Metro-Dade Police Department due to a workplace injury where he was hit by a door (Respondent’s Exhibit 33, Administrative Hearing Transcript, p. 17, lines 3-13).

B. At the hearing of this matter on August 8, 2003, Petitioner testified as follows:

10 Petitioner stated that he had worked at Metro-Dade Police Department for “approximately fourteen years,” and further stated “actually it was fifteen” (Administrative Hearing Transcript, p. 453, lines 2-9) and then stated about said employment, “I was there fifteen years” (Administrative Hearing Transcript,, p. 458, line 24). When asked, “you’re saying you worked from 1983 for fifteen years for Metro-Dade” Petitioner answered, “Uh-huh.” (Administrative Hearing Transcript, p. 462, lines 2-4).

C. In plain contradiction of Petitioner’s above-quoted testimony, Petitioner’s personnel record from Metro-Dade Police Department (Respondent’s Exhibit 34), clearly shows that Petitioner was hired on March 22, 1982, and that Petitioner “[r]esigned, failure to satisfy probation requirement, would not rehire” (‘Personnel Change Document’ effective July 30, 1982, unnumbered page 11 of Respondent’s Exhibit 34), “Resigned due to failure to satisfy probation requirements. Numerous departmental violations during training. Do not recommend re-employing.” (Undated note, unnumbered page 14 of Respondent’s Exhibit 34).

D. When confronted with his personnel record from Metro-Dade Police Department (Respondent’s Exhibit 34) at the hearing of this matter on August 8, 2003, Petitioner stated as to his resignation, “When they found out about the incident and what really happened, I was reinstated, went back to the Academy, finished the Academy. I’m sorry. I made a mistake. I was there fifteen years. And I said fourteen in my deposition. Had a very good career there. Received numerous citations and awards. Actually worked on a Federal Task Force.” (Administrative Hearing Transcript, p. 458, line 20 – p. 459, line 2).

E. Further, in an attempt to rebut the evidence of Petitioner’s personnel record from Metro-Dad Police, Petitioner introduced into evidence, in support of his testimony that he had worked at Metro-Dade Police Department for fifteen years, Petitioner’s Exhibit 1, a group of xeroxed copies of certain documents and things including two pages (Petitioner’s Exhibit 1, unnumbered pages 8 and 9) which Petitioner stated (Administrative Hearing Transcript, p. 466, lines 12-16) were a copy of awards Petitioner received while in the Metro-Dade Police Department and a copy of a plaque which Petitioner said he was given when he left the said department, along with a copy of a page (Petitioner’s Exhibit 1, unnumbered page 7) with the heading “Class Notes” which Petitioner stated his wife had clipped from “one of the college papers” (Administrative Hearing Transcript,, p. 466, lines 6-9) in which a paragraph entitled “Michael J. Stolarik, Sr.” stated “Michael recently retired in March, 1996, from Metro Dade Police Department after 15 years of service.”

F. Petitioner testified in his deposition that he had no disciplinary problems while he worked for Metro-Dad Police Department and reiterated that statement at the hearing. (Respondent’s Exhibit 33, Administrative Hearing Transcript, p.16, lines 22-24). However, Petitioner’s personnel record from Metro-Dad Police Department contains a Memorandum from John Wilson A/Lieutenant Training Bureau to Bobby L. Jones, Director, Metro-Dade Police Department, dated July 20, 1982, which recommended that Petitioner “be terminated for failure to meet probationary requirements,” and listed numerous deficiencies of Petitioner including academic and uniform deficiencies, being evaluated as unacceptable in seven out of 18 categories after completing more than 50% of training and using demeaning racial slurs about fellow trainees. Said Memorandum further stated:

11 While the majority of observed deficiencies may be subject to correction, through a program of continued counseling and close supervision, trainee Stolarik’s apparent inability to control racial prejudice represents an area of major concern, beyond supervisory control. He has been interviewed by this writer and has failed to provide satisfactory explanation for his conduct. Written explanations submitted by the trainee for the first of the foregoing racial comments, are contradictory and unacceptable.

(Unnumbered page 15 of Respondent’s Exhibit 34).

G. Petitioner’s Metro-Dade Police Department personnel record (Respondent's Exhibit 34, unnumbered page 4) contained a statement indicating that the document was Petitioner’s “Entire Personnel File.” In response, Petitioner claimed at the hearing that Exhibit 34 did not constitute Petitioner’s entire Metro-Dade Police Department personnel record (Administrative Hearing Transcript, p. 460, lines 13-20). Petitioner further stated that he had signed a release on November 2, 1983, “allowing only information up to one year after that date to be released. To tell you the truth, I can’t even get it if I wanted it. ” (Administrative Hearing Transcript, p. 460, lines 1-7).

H. Following the August 7-8, 2003, hearing of this matter, Respondent obtained a letter dated August 15, 2003, from Commander Edmund Valdes, Commander, Metro-Dade Police Department stating that Petitioner was employed on March 22, 1982, resigned July 30, 1982, and did not complete the Police Academy. Said letter further states, “The Miami-Dade Police Department does not seal personnel records. These records are public record and may be inspected and examined by any person pursuant to Florida Statutes.” Said letter contains an notarized statement dated August 22, 2003, in which Capt. Leonard Stoffman of the Metro-Dade Police Department Personnel Management Bureau states of Petitioner, “This individual, Mr. Stolarik, was never re-employed after 1982, by the Dept.” (Upon motion of the Respondent, the evidence was reopened, and at a hearing of this matter on October 7, 2003, Respondent introduced said letter dated August 15, 2003 containing a notarized statement dated August 22, 2003, from Metro-Dade Police Department into evidence as Respondent’s Exhibit No. 36).

I. At the reopened evidentiary hearing in this matter on October 7, 2003, Petitioner persisted in testifying at length that he had worked at Metro-Dade Police Department for 15 years, attempting to describe his police service, and mentioning the names of co-workers (including a Pat Darnell who Petitioner stated was a member of the Monroe County, Florida, Sheriff’s Department with whom Petitioner had worked on a join anti-drug task force), despite being shown Respondent’s Exhibit No. 36. When Petitioner was asked why he did not put his employment with Miami-Dade Police Department on his resume attached to his 2000 application for employment with Respondent but listed seven other employers for the period 1983 to 1996, Petitioner responded: “Each one of my resumes are different. . . . I can show you at least seven or eight different resumes that I submit when I'm looking for a position . . . “ (Administrative Hearing Transcript, p. 525, ll. 14-25).

12 J. At the conclusion of the October 7, 2003, hearing, the court ordered that the parties should have until October 28, 2003, to introduce additional exhibits into evidence. Petitioner did not introduce any additional evidence during this three-week period, even though Petitioner testified as the October 7, 2003, hearing that he had tax returns from the period in which he claimed employment with Metro-Dade Police Department and that he had reported income from the said police department (Administrative Hearing Transcript, p. 528, l. 18 – p. 529, l. 8). Respondent introduced into evidence two additional exhibits as follows:

i. A letter dated October 22, 2003, from the Florida Department of Law Enforcement, Tallahassee, Florida, (Respondent’s Exhibit 38) showing:

“ This letter is in response to your recent public record request seeking information on law enforcement officer employment/certification for Michael James Stolarik and Pat Darnell. A thorough search of the Automated Training Management System (ATMS) has been conducted based on the information provided pertaining to Mr. Stolarik and Mr. Darnell. Enclosed is an officer profile sheet indicating employment for Mr. Stolarik. According to our records, Mr. Stolarik was employed with Metro-Dade Police Department (now Miami Dade) from March 22, 1982 to July 30, 1982. Mr. Stolarik did not complete training, therefore he was not certified. There was no information found in ATMS for Mr. Darnell.”

ii. A letter dated October 22, 2003, from the Monroe County, Florida, Sheriff’s Department (Respondent’s Exhibit 39) stating:

Per your request, I have searched our records dating back 30 years. I concluded that there was not a former employee named Pat Darnell that ever worked for the Monroe County Sheriff’s Office during the period between 1962- 1997.

K. The evidence presented impeaches Petitioner's testimony under oath both in his deposition and at the original hearing of this matter on August 8, 2003, and again at the reopened hearing of this matter on October 7, 2003, that Petitioner worked at Metro-Dade Police Department for 15 years, and the court finds as a fact instead that Petitioner has testified falsely under oath on three separate occasions about his employment with Metro-Dade Police Department and that Petitioner only worked for the Metro-Dade Police Department for four months and 8 days from March 22, 1982. to July 30, 1982.

L. The Court having heard and observed Petitioner throughout this hearing finds Petitioner not to be credible.

CONCLUSIONS OF LAW

1. The court has jurisdiction over the subject matter of this proceeding and over the parties hereto.

13 2. Respondent in this case has the burden proof for showing that it terminated Petitioner for just cause under G.S. 126-35(d).

3. Respondent has shown by a preponderance of the evidence that it terminated Petitioner for just cause, to wit, unacceptable personal conduct.

4. While Petitioner did not allege a claim of illegally discriminatory disparate treatment in his petition, Petitioner presented evidence to show that he was treated differently from former employee Freddie Williams and fellow group home manager Donald Cooper (Administrative Hearing Transcript, p. 349, lines 1-22; p. 306, l. 1 to p. 307, l. 20; p. 311, lines 16-25; p. 361, l. 8 to p. 368, l. 17).

5. North Carolina prohibits an employer from discriminating against any individual with respect to his terms, conditions or privileges of employment because of such individual’s race. N.C. Gen. Stat. 126-36 has the same purpose as Title VII, 42 U.S.C. 2000e et seq.: the elimination of discriminatory practices in employment. North Carolina courts look to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases and have adopted the shifting of burdens standard enumerated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 302, 36 L.Ed. 2d 668, 93 S.Ct. 1817 (1973). See North Carolina Department of Correction v. Gibson, 308 N.C. 131, 301 S.E.2d 78 (1983).

6. In North Carolina Department of Correction v. Gibson, the North Carolina Supreme Court articulated the parties’ respective burdens in proving racial discrimination: (1) The employee must first establish, by a preponderance of the evidence, a prima facie case of discrimination. If the employee meets such burden, then… (2) The burden of persuasion shifts to the employer who must articulate some legitimate, nondiscriminatory reason for the employment decision. Once the employer carries this burden and has articulated such reasons for its decision, the burden of persuasion by a preponderance of the evidence shifts back to the employee, and(3) (3) The employee must then prove that the employer’s legitimate reasons were not its true reasons but a pretext for discrimination, and the employer’s discrimination was the real reason for its actions. St. Mary’s Honor Center, 509 U.S. at 510-511, 113 S.Ct. at 2749. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

7. In discrimination cases, although the burden of producing evidence may shift back and forth during the analysis, the employee bears the ultimate burden of persuasion; that is, the ultimate burden of proving his employer discriminated against him. St. Mary’s Honor Center, 509 U.S. at 502, 507, 511, 113 S.Ct. at 2742, 2747. 2749 (1993). See also Hawkins v. PepsiCo. Inc., 203 F.3d 274, 278 (4th Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 (1973).

8. The Petitioner ultimately has the burden of proof by a greater weight or preponderance of the evidence regarding the discrimination claimed. Black’s Law Dictionary cites that “preponderance means something more than weight; it denotes a superiority of weight, or

14 outweighing.” The finder of fact cannot properly act upon the weight of evidence, in favor of the one having the onus, unless it overbears, in some degree, the weight upon the other side.

9. The purpose behind the passage of Title VII was “to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823 (1973). While clearly Title VII and the North Carolina discrimination laws apply on the same terms to discrimination against males or whites, Hicks v. ABT Assocs., 57 F.2d 960 (3rd Cir. 1978), where a plaintiff in an employment discrimination case alleges a case of “reverse discrimination,” the prima facie case requirements are modified.

10. Consistent with the United States Supreme Court’s admonition that the generally- accepted McDonnell Douglas test for establishing a prima facie case of discrimination should be modified to accommodate different employment discrimination contexts, courts have generally added to the McDonnell Douglas paradigm in cases such as this one involving claims of “reverse” discrimination. Rather than showing that the plaintiff is a member of a protected class, when considering a case of “reverse discrimination,” a plaintiff must show background circumstances which support the suspicion that the defendant is that unusual employer that discriminates against the majority. See Murray v. Thistledown Racing Club, Inc., 770 F2d. 63 (1985). See also, Settle v. Baltimore Co. 34 F. Supp 2d 969 (D. Md. 1999), Green v. Clarendon Co. School Dist. Three, 923 F. Supp. 829 (D. SC 1996); Martin-Tiegona v. Board of Trustees, 668 F.Supp. 682 (D.D.D. 1987).

11. The Fourth Circuit has held that in reverse discrimination, failure-to-promote cases, the plaintiff (Petitioner) is required to produce, in addition to showing the elements of a prima facie case, “some other evidence that. . . race was a factor considered by the employer in not granting . . . the promotion.” Lucas v. Dole, 835 F2d 532, 533 (4th Cir. 1987), cert denied sub nom., 494 U.S. 1026, 110 S.Ct. 1471, 108 L.Ed2d 609 (1990). This other evidence has led some District Courts in the Fourth Circuit to surmise that the Fourth Circuit standard is similar to other circuits regarding reverse discrimination and have thus required that in addition to the prima facie elements, the Petitioner put forth “background circumstances” that support “a suspicion that the defendant is that unusual employer who discriminates against the majority.” Gilbert v. Penn-Wheeling Closure Corp., 917 F. Supp. 1119, 1125 (N.D.W.Va. 1996).

12. The courts however have not provided a precise description of what a plaintiff much show to establish background circumstances for such a reverse discrimination. Cases in which a plaintiff did establish this first element of reverse discrimination and are cited to illustrate the kind of evidence brought forward include instances of the plaintiff as the only white employee in an otherwise minority department, qualified whites passed over for blacks whose qualifications were not fully checked, and internal and external pressure to favor minorities. Reynolds v. School Dist. No. 1, 69 F3d 1523 (10th Cir. 1995) and Lanphear v. Prokop, 703 F2d 1311 (D.D.Cir 1983).

13. Being a member of the majority race, Petitioner had the burden of proof in making out a prima facie case of reverse discrimination. However, Petitioner failed to carry his burden

15 of proof and did not make out a prima facie case of reverse discrimination. Petitioner presented no evidence as to whether Freddie Williams or Donald Cooper (or any other employees who might, under Petitioner’s evidence, have been treated differently from Petitioner) were members of a race different from Petitioner nor did Petitioner present any evidence of “background circumstances” showing that the Respondent is that unusual employer who discriminates against the majority.

DECISION

The decision of the Respondent to terminate Petitioner from employment for unacceptable personal conduct is affirmed.

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, North Carolina 27699-6714, in accordance with N.C. GEN. STAT. § 150B-36 (b).

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision issued by the undersigned, and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. §150B-36(a).

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. 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 in not adopting the finding of fact. 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 in making the finding of fact.

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 pursuant to G.S. 126-37(b1) is the Area Director of Piedmont Behavioral Healthcare, the local appointing authority under G.S. 122C-121(c)(1).

The agency is required by N.C. Gen. Stat. §150B-36(b3) to serve a copy of the final decision upon each party personally or by certified mail and to furnish a copy to each attorney of record and the Office of Administrative Hearings.

This the 22 day of December, 2003

16 ______Sammie Chess, Jr. Administrative Law Judge