NC



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 08 OSP 1362

|Danny Ellis |) | |

|Petitioner |)) | |

| |) | |

|vs. |) |DECISION |

| |))))| |

|Department of Health and Human | | |

|Services, Health Service Regulation | | |

|Division | | |

|Respondent | | |

On September 9, 2009, Administrative Law Judge Melissa Owens Lassiter Administrative Law Judge conducted an administrative hearing in this case. On December 3 and 4, 2009 respectively, the parties filed Proposed Decisions with the Office of Administrative Hearings. By order dated January 20, 2010, Chief Administrative Law Judge Julian III ordered that the undersigned had until February 22, 2010 to issue her Decision.

APPEARANCES

For Petitioner: Angela Newell Gray

Gray Newell, LLP

7 Corporate Center Court, Suite B

Greensboro, North Carolina 27408

For Respondent: Kathryn J. Thomas

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, North Carolina 27602

ISSUE

Whether Respondent’s withdrawal of a verbal offer of employment to Petitioner for the position of Assistant Chief of Budget and Planning was based on Petitioner’s race or retaliation?

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 126, et. seq.

N.C. Gen. Stat. § 150B-23, et. seq.

25 N.C.A.C. 01, et seq.

WITNESSES

For Petitioner: Danny Fitzgerald Ellis

For Respondent: Elizabeth Kauffman Brown

Kathleen Gruer

Danny C. Stewart

William Jefferson Horton

Dennis Harrington

EXHIBITS ADMITTED INTO EVIDENCE

For Petitioner: 1 – 3

For Respondent: 1 - 47

FINDINGS OF FACT

A. BACKGROUND

On June 3, 2008, Petitioner filed a petition for a contested case hearing with the Office of Administrative Hearings alleging that Respondent’s Division of Health Service Regulation (DHSR) racially discriminated and/or retaliated against Petitioner when it rescinded a job offer to Petitioner, and thereby denied a promotion to Petitioner.

At all times material, Petitioner Danny Ellis (“Petitioner”) was a career state employee, and was subject to the provisions of the State Personnel Act. Petitioner served sixteen and a half years in the military, earned an undergraduate degree in business and health care administration, and a second degree in nursing. Petitioner earned a Master’s degree in Business Administration, with a concentration in health care management, and has completed course work for a Ph.D. in health and human services.

Dennis Harrington is Deputy Division Director, and Chief of the Administrative, Local, and Community Support Section in the Division of Public Health. (T p 251) He reports to the State Health Director. (T p 253)

Elizabeth Brown has been the Chief of Budget and Planning at the DHSR since 2006. Her supervisor is Jeff Horton, Director of DHSR. She was employed at UNC School of Medicine as a clinical academic department administrator for the Department of Radiology from 2004 to 2006. From 1999 to 2004, she was a budget officer with DHHS. Brown holds a Bachelor of Science degree in management with a concentration in marketing from the University of North Carolina at Greensboro. (T pp 126-131)

William Jefferson Horton is currently the Director of the DHSR. He reports to Allen Feezor, Deputy Director of the DHHS. (T p 129) In May of 2008, Mr. Horton was Acting Director of DHSR, and prior to that time, he was deputy director. (T pp 228-229)

Kathy Gruer has been the Director for Human Resources for Respondent DHHS for 11 years. Her immediate supervisor is Dan Stewart. In 2008, Stewart was Gruer’s supervisor. Ms. Gruer has never seen or met Petitioner before this administrative hearing. (T p 184-185)

Danny C. Stewart is the Assistant Secretary for Finance and Business Operations. In 2008, he was Deputy Secretary for the Department of Health and Human Service. He was a CPA, and worked in state government for 32 years, working one-half of that time in internal audit. (T pp 205-206, 223)

From February 2004 until March 2009, Respondent employed Petitioner as a Public Health Manager. Petitioner also worked as the Manager of Purchasing of Medical Services. Petitioner was originally hired and supervised by Bob Duke. Before May or June of 2007, Petitioner worked for 2 years in the controller’s office managing about 34 employees.

Around May or June of 2007, Petitioner’s unit was transferred from the Respondent’s Controller’s office to Respondent’s Division of Public Health. (T pp 22-23)

Petitioner’s new supervisor in the Division of Public Health was Dennis Harrington. (T p 23) Petitioner’s office was located on the Dorothea Dix campus, while Mr. Harrington’s office was located on Six Forks Road in Raleigh. Petitioner contends that he was the subject of disparate treatment once Harrington became his supervisor.

Petitioner was the only African-American on the management team under Harrington’s supervision. The employees in Petitioner’s unit consisted mostly of African-Americans. The unit that Petitioner supervised was initially excluded from activities that other units were invited to, and his unit was called the “bastard children.” Petitioner was unable to obtain supplies for his unit, such as computers and other equipment. When Petitioner complained to Harrington about this, Harrington ignored Petitioner’s complaints. While computers were ordered for Petitioner’s unit, Petitioner and his staff never received the computers.

The member of Harrington’s management team met monthly at Harrington’s office. During the meetings, each manager advised other members of concerns in his unit, and discussed those concerns with the other managers. At these meetings, Petitioner attempted to sit directly beside Harrington in order to brief the team on the issues within his unit. However, regardless of which side of the table Petitioner sat, or how close Petitioner sat to Harrington, Harrington continuously selected Petitioner last or second to last to brief the team. As a result, the Petitioner was never able to engage actively the needs and challenges facing his unit.

Petitioner explained at hearing that Mr. Harrington ignored Petitioner’s achievements at work, while recognizing the achievements of his white counterparts. Petitioner was selected as a William C. Friday Fellow at UNC-Chapel Hill. Only 20 fellows were selected out of 500 candidates. Petitioner never received any recognition for this achievement either in the department newsletter or at the management team meeting, while the other management team members, all Caucasian, received recognition for similar achievements. (T pp 48-60)

In 2004, Petitioner raised an issue with Harrington about lack of diversity among health directors statewide. Petitioner advised Harrington that there were 85 health directors statewide, but less than five of them were African-American. Petitioner tried to discuss discrimination and lack of diversity with Harrington, but Harrington did not want to discuss Petitioner’s complaints.

B. PETITIONER’S FEBRUARY 2008 SALARY INEQUITY COMPLAINT

In 2008, Harrington’s daily professional interaction with Petitioner was limited to either telephone, e-mail or through Harrington’s secretary. Petitioner claimed that sometimes he had difficulty scheduling face-to-face meetings with Harrington. (T pp 250, 253-254)

On February 25, 2008, Petitioner sent Harrington an e-mail (Pet Exh 13), stating that he had tried to reach Harrington through normal channels, but he had been unable to do so. In the e-mail, Petitioner complained of salary inequity among managers in DHSR, after Petitioner learned that he was paid substantially less than his white counterparts. As a member of the management team, Petitioner commented that the average salary of other members of the management team was 68% above Petitioner’s salary. Petitioner felt his salary was noncompetitive or unfair compared to others on the management team. (R Ex 13; T pp 39, 76) Petitioner indicated that there were a number of individuals, who were receiving salaries higher than his, who were either his contemporaries, or his subordinates. (R Ex 13; T pp 256-257) Petitioner also mailed a copy of that e-mail to Kathy Gruer, Respondent’s Departmental Human Resources Director, and Paula Taylor, HR manager.

On February 29, 2008, Harrington responded to Petitioner by e-mail. (R Ex 14; T p 256) Harrington was bothered by the fact that Petitioner’s e-mail was circulated to a number of people who were in human resources. Harrington found it very unusual that any employee in a division would go over his head by copying Paula Taylor, HR manager and Kathy Gruer on the e-mail. Harrington thought Petitioner was not necessarily giving him the opportunity to work with Petitioner. In the normal course of business, HR work began with Harrington, who in turn, worked Paula Taylor and other persons who were internal to the division. (T pp 258-259)

Petitioner met with Harrington about Petitioner’s salary concerns. Harrington agreed that there was salary inequity among the DHSR managers. Harrington was aware that racial discrimination was a concern of Petitioner. (R Ex 13; T p 256) Petitioner communicated to Harrington that he felt that the racial diversity that he brought to the team was important. (T pp 263-264)

Harrington asked Paula Taylor to conduct a study to determine whether indeed there was an inequity; and if so, he told her they needed to address it. Paula Taylor looked at the grade 76s in the division. Factors such as the person's entry into the system, months of service, and various other parameters in their work are factors that contribute to an employee’s salary level. (R Ex 13; T p 260) Paula Taylor’s study found that there were inequities in salary, particularly in Petitioner's case.

According to Harrington, several ongoing factors made a request for salary adjustment complicated. First, the department had no salary reserve. Second, the department was involved in a cost allocation process, whereby they switched from using indirect cost with their grants, to actually allocating peoples’ salary based on their supervision. According to HR policies, and the equity study, the maximum salary adjustment that could be requested was 10%. The 10% salary increase is what Harrington requested. (T p 266)

Based on these factors, Respondent approved a 10% salary adjustment for Petitioner. Petitioner received his salary adjustment by August or September 2008, with such approval being retroactive to July 1, 2008. (T pp 267-268) Petitioner’s salary of $51,691.00 was increased to $56,860.00. (R Ex 36-37; T p 265)

Evidence at hearing showed that Petitioner’s original salary was set when he was hired in the Controller’s Office. His salary, at that time, was based on all of the information he included in his employment application in September 2004. (T p 95) Therefore, whatever salary inequity Petitioner had, when his job was transferred to the Division of Public Health, actually started in the Controller’s office. (T pp 262-263)

At hearing, Petitioner admitted that he did not know the qualifications of all of the individual employees he compared to himself when he complained about his salary. (T pp 97-98) The comparison of other employees’ salary and grades with Petitioner’s salary and grade was not an “apples to apples” comparison. Harrington opined that since the management team has all manner of different responsibilities and reports, it is not a real fair comparison to look at the management team and try to find any equity. (T pp 259-260)

In addition, Petitioner presented no evidence to show that Dennis Harrington told Elizabeth Brown about Petitioner’s salary complaints. (T p 99)

C. JOB POSTING

On April 9, 2008, Respondent’s DHSR posted a job announcement for the position of Human Resources Planning Supervisor III, Salary Grade 78. The position’s working title was Assistant Chief of Budget and Planning. (R Ex 17-20, 40) Elizabeth Brown was the supervisor of this position. (T p 132) The position was a newly created position that had been approved and funded. While this position was not a critical one, Ms. Brown was anxious to fill the position. (T pp 136-137)

The job posting for that position included the following notices: “Vacancy number must be listed on the State Application PD-107. All work history must be included on State Application forms.” (R Ex 17-20, 40)

The job posting for that position described the work as follows:

This position is located on the Dorothea Dix Campus in Raleigh, in the Division of Health Service Regulation within the Medical Facilities Planning Section. The primary purposes of this role are: to provide direction and guidance to the staff planners who work with the State Health Coordinating Council (SHCC) committees to identify issues and policy consequences of policy options that the SHCC or its committees may be considering or have been positioned to consider; to recognize underlying conflicts on issues among providers and other parties affected by the state medical facilities plan; to meet and discuss issues with SHCC members, providers and their associates, state government officials and others interested in or affected by the SMFP; and to keep the SHCC Chairperson and Division Management informed of all business processes.

(R Ex 17-20, 40)

The job posting for that position included a description of the “Knowledge, Skills and Abilities” as follows:

This position requires the ability to exercise judgment and discretion in interpreting and applying methodologies, rules, and statutes and health planning requirements. Also required is the ability to think analytically, the ability to manage funds by budgeting receipts and requirements accordingly and excellent written and oral communication skills. Strong preference is given to individuals with extensive MS Access and Excel skills, as well as experience with NCAS and BRS.

(R Ex 17-20, 40)

The job posting for Human Resource Planning Supervisor III included the following minimum requirements for training and experience and experience:

A master’s degree in public or human service administration, or human services programmatic field, preferably with course work in human services planning and five years of human service experience, three of which must have been in planning; or graduation from a four-year college or university and six years progressive administrative or consultative experience in a human service program, three of which must have been in program planning; or an equivalent combination of education and experience.

(R Ex 19)

The job posting for Human Resource Planning Supervisor III remained open through April 23, 2008.

Petitioner submitted an Application for Employment (PD-107), dated April 15, 2008, for the Human Resource Planning Supervisor III position. (R Ex 22; T pp 70-71)

Per its normal practice, the Human Resources office screened applications for the highly qualified candidates, and forwarded those applications to the hiring manager, Ms. Brown. (T p 134) After reviewing Petitioner’s application, the Human Resource staff deemed Petitioner to be a “highly qualified” candidate, and forwarded Petitioner’s application to Ms. Brown. (T pp 134-135)

D. HIRING PROCESS

As hiring manager, Ms. Brown received Petitioner’s application, along with other applications. Typically, when Brown reviewed an application, she looked at the description of the applicant’s current employment, including directly related experience, and at the applicant’s education. She does not verify any of the information at this point.

In this case, Brown provided copies of the applications to Bob Fitzgerald, who was then Director of DHSR. They agreed on a list of individuals to be interviewed. (T pp 132- 134, 138) It would not be unusual for someone working under Brown’s supervision to have a higher education and advanced degree than Brown’s Bachelor of Science degree. (T p 132)

Ms. Brown and Mr. Fitzgerald interviewed the candidates, and asked the same questions of each applicant. On or about April 29, 2008, Ms. Brown interviewed Petitioner for the Human Resource Planning Supervisor III position, found that Petitioner appeared very confident, and interviewed very well. (T p 135, 140) They also interviewed two other applicants. After the interviews were completed, Brown and Fitzgerald narrowed the choice down to two, including Petitioner. As the hiring manager, Ms. Brown made the decision which candidate to hire. (T p 140)

Around this same time, Mr. Fitzgerald retired, and Mr. Horton became Ms. Brown’s supervisor. (T p 140) Since Horton was not involved in the interview process for the position of Human Resource Planning Supervisor III (T pp 229-230), Brown discussed the persons she had interviewed with Mr. Horton. Ms. Brown selected Petitioner as the successful candidate, and told Mr. Horton. (T p 140-141, 229-230)

Ms. Brown checked Petitioner’s references, including Petitioner’s current supervisor, Dennis Harrington, and two additional individuals from Petitioner’s references sheet, one of whom was Barbara Pullen-Smith. (T p137-138) After checking Petitioner’s references, Ms. Brown completed the hiring paperwork indicating her choice of Petitioner for the position. The EEO officer then reviewed the paperwork. (T p 141)

When Petitioner applied for the Human Resource Planning Supervisor III position, Petitioner was making $51,692.00 at the Division of Public Health. Human Resources determined that Petitioner qualified for a salary of $79,246.00 based on his experience, work, and education. However, this amount was $3,538.00 over the budgeted salary for the position.

Due to equity considerations within her staff, and after discussing the issue with Mr. Horton, Ms. Brown decided to offer the position to Petitioner with a salary of $73,000.00. Horton understood that the offer was within the budgeted amount.

On May 7, 2008, Brown submitted her request to hire Petitioner at $73,000 to DHSR Human Resources. On May 8, 2008, Ms. Brown talked to Helen Tack in Budget and Analysis. From that conversation, Ms. Brown understood that the job offer was not approved initially, due to the salary issue. After Ms. Brown explained to Ms. Tack how to “move the money” from salary reserve to meet the $73,000 salary requested for Petitioner, Ms. Tack approved the request, and forwarded the paperwork to Respondent’s DHHS Human Resources office. (R Ex 26; T pp 148-155, 230-231)

After talking with Ms. Tack, on May 8, 2008, Ms. Brown called Petitioner by telephone, and offered him the Human Resource Planning Supervisor III position at an annual salary of $73,000. Ms. Brown told Petitioner that it was a contingent offer. (T pp 142, 155-156) Ms. Brown called it a contingent offer, because she had not yet received the actual paperwork back from DHHS. A signed freeze release form must come back from the department (DHHS) to DHSR before DHSR could finalize the offer. Ms. Brown did not know who exactly signed off on the forms at DHHS, but she thought it had to be by someone in Human Resources at the department level. (T pp 157-158) Petitioner advised Brown that he wanted to talk to his wife, and think about the offer.

On Monday, May 12, 2008, Petitioner called Ms. Brown and asked if he could look at the office arrangements. Petitioner came to the Council Building, where Brown’s office was located, and Brown showed Petitioner the Medical Facilities Planning area. After that, they walked back to Brown’s office. (T p 158-159)

After the Division Director and the Division budget office approved the freeze release request, the Human Resources and budget staff sent the request to the Adams Building for review. Jeannette Furney, an administrative assistant to the Deputy Director for Human Resources, handled the freeze release request. Once the budget office approved the salary reserve, Ms. Gruer typically reviews the request to determine if additional information is required. (R Ex 27; T p 187-189)

Because of the 40% increase in salary requested in this case, Ms. Gruer would have reviewed the request. (T p 189) Because this request involved a proposed two-pay grade promotion, which normally would involve a 10% increase, Ms. Gruer would have submitted it to Mr. Dan Stewart for review according to written department policy. (R. Ex 30; T pp 192-193)

In this case, Dan Stewart was one of people required to approve, or “sign-off,” on paperwork to hire Petitioner. After HR staff processed the paperwork, they brought the paperwork down to Stewart’s office for his approval. (T pp 206) Mr. Stewart called Kathy Gruer after he received Petitioner’s paperwork. Steward told Gruer that he could not approve the paperwork giving Petitioner a 40% salary increase, because the salary increase for Petitioner was clearly excessive according to policy. Since Department policy allowed only 5% increase per pay grade in a promotion, and this promotion involved a move of two pay grades, Petitioner would only be entitled to a 10% pay increase on this particular job, rather than 40%. Petitioner’s promotion would have moved him from a pay grade 76 to a 78. (R Ex 30; T pp 207)

Before receiving Brown’s request to hire Petitioner with a 40% pay increase, Stewart did not personally know Petitioner. However, Stewart had previously heard about Petitioner concerning a conflict of interest question on Petitioner’s request for secondary employment.

a. Petitioner was a Public Health employee, but had submitted a request to secondary employment to work as an Executive Director with a nonprofit organization that received DHHS funding. Because of the possible conflict of interest between Petitioner’s public health employment and Petitioner’s request for secondary employment, the Office of Internal Auditor performed monitoring visits at Petitioner’s non-profit organization, in late December 2007 or early January 2008. (R Ex 47; T pp 207-208)

b. The Office of Internal Audit was asked to assist in a monitoring visit to assure that the place of Petitioner’s secondary employment was properly handling its grant from DHHS. There was no actual audit, per se, of financial statements. (R Ex 47; T pp 209-210, 225) The Office of Internal Audit staff reviewed the internal controls and segregation of duties of the nonprofit organization. The report from these visits showed grant management irregularities by Petitioner at the nonprofit organization regarding bank reconciliations, internal controls, possible conflicts of interest with the organization and the church, and rent issues. (R Ex 47; T p 211)

c. Normal protocols in distributing findings by the Office of Internal Audit included sending copies of reports to the Secretary of the Department, Dan Stewart, Respondent’s General Counsel, and the Controller. The Divisions that would be affected, that is, those having any type of funding or connection with the audit, would have also received a copy. (R Ex 47; T pp 211, 227)

Dan Stewart received a copy of Office of Internal Audit report for Petitioner’s place of secondary employment before he reviewed Brown’s recommendation to hire Petitioner. If Brown’s recommendation to hire Petitioner had included 10% salary increase, Stewart would have approved it, regardless of the information pertaining the audit. In fact, it would have been preferable, since Petitioner would no longer be a DPH employee, and he would be working in a separate division. (R Ex 30; T pp 213, 220-221 )

After disapproving the paperwork to hire Petitioner, Stewart informed Jeff Horton that he would not approve a 40% salary increase for Petitioner. Stewart also told Horton that there were some issues outside of the actual application having to do with conflict of interest issues in an Office of Internal Audit report. Stewart emailed the Office of Internal Audit report to Horton, but asked Horton not to show the audit to Ms. Brown (R Ex 47; T pp 212, 217, 232-233, 237)

Stewart did not discuss, with Horton or Brown, offering a lower salary amount to Petitioner, so that Stewart could approve the promotion. Stewart only told them that he could not approve the 40% salary increase. Neither did Stewart make the decision to rescind Petitioner’s offer, nor did he tell anyone to rescind the offer. (T pp 213, 216) Stewart does not make employment offers, as he is involved in approving the financial part of the hiring manager’s decision. (T pp 214, 216, 218-219) Stewart did not discuss or share with Brown, the information regarding the grant management irregularities by Petitioner.(T p 215)

Ms. Brown recalled asking Jeff Horton why it was taking Human Resources so long to return the paperwork approving Petitioner’s promotion. (T p 160) On May 12, 2008, Mr. Horton asked Brown to meet with him in his office. Mr. Horton advised Brown that the Department was not going to approve the requested 40% salary increase for Petitioner. (R Ex 26; T p 161, 165)

Mr. Horton also advised Ms. Brown that Petitioner was involved with a grant that Respondent’s internal auditor had monitored and cited for numerous accounting irregularities. Specifically, Respondent’s internal auditor had cited Petitioner’s non-profit agency for failing to follow generally accepted accounting practice. Horton discussed the auditor’s report with Brown, but did not show her the report. Although Horton was not supportive of hiring Petitioner, he did not instruct Brown to rescind the offer to Petitioner. Because Brown was the hiring manager, Horton left that decision to Ms. Brown. (T p 239-243)

The auditor’s report also caused Mr. Horton great concern, because it was contrary to Petitioner’s representations on his application regarding Petitioner’s work with this entity and his organization claims. Horton told Brown that he felt Petitioner had misrepresented and lied on the application, this was a big red flag, and they should seriously consider whether to hire Petitioner. Before he received the audit report, Horton had no objections to Brown extending the offer to Petitioner. (T pp 234-236, 238)

During his interview with Brown, Petitioner failed to tell Brown that he had secondary employment at an agency which had obtained grant funding from his current employer. Petitioner did not tell Brown that Respondent had cited his agency for numerous accounting irregularities. Ms. Brown thought Petitioner’s failure to tell her about these issues, raised concern about Petitioner’s integrity. Ms. Brown thought Petitioner’s failure to advise her of these issues was a big issue in considering whom to hire for the Assistant Chief of Budget. The Assistant Chief of Budget position required someone who possessed integrity, had to be trusted, and had expert accounting and budgeting skills. (R Ex 1; T pp 162-166)

Petitioner’s application indicated that he exemplified “strong analytical skills in policy development,” he provided “accurate cost analysis,” and he “developed and maintained Excel spreadsheets providing the breakdown of spending and funding,” including “daily fiscal accountability.” (R. Ex. 1; T pp 170-171) Ms. Brown thought Petitioner had misrepresented himself as having those skills when the Internal Auditor’s findings said the exact opposite. (R Ex 1; T pp 162-166)

Brown also discussed her verbal offer of employment to Petitioner with Kathy Gruer. After that discussion, on May 13, 2008, Ms. Brown decided to rescind the offer of employment to Petitioner, and called Petitioner to advise him. Ms. Gruer did not tell Ms. Brown that she had to rescind the offer. Ms. Brown’s decision was based on the information conveyed by Mr. Horton to her regarding the audit findings. (T p 177-180)

Ms. Brown did not review the audit findings until some time after the petition for contested case hearing was filed. She recalls specific findings in the audit about a lack of record keeping and intermingling of funds that went from one entity to another. (T p 167)

On May 13, 2008, Kathy Gruer wrote, “Return to HSR Offer Rescinded” on the document marked as Respondent’s Exhibit #13. Gruer wrote that note, because she believed there was some discussion about whether to reconsider and come up with a different offer for Petitioner, based on information regarding an audit report involving Petitioner.

Later, Respondent reposted the subject job, and ultimately, hired a Caucasian male for the subject job at a salary of $70,000.00. (T p 182)

D. PETITIONER’S QUALIFICATIONS

Petitioner’s job application indicated that Petitioner had Master’s Degree in Business Administration, Health Care Management from East Carolina University. The evidence at hearing showed that East Carolina University does not have an MBA in Health Care Management. The evidence at hearing showed that Petitioner specialized in health care related topics, and received a Certificate for specializing in Health Care Management while he pursued his MBA. The Certificate is not the equivalent as a dual Master’s Degree in Business Administration, and Health Care Management. (T pp 70-71)

Petitioner’s Application for Employment states that he served honorably in the U.S. Army from January 1984 through April 2001. (R Ex 2, 22; T pp 69-70, 85) In earlier applications filed with DHHS, Petitioner had also indicated that his rank was Master Sergeant. (R Ex. 1 and 2) However, evidence showed that Petitioner was discharged for “other than honorable discharge in lieu of trial by court martial,” which resulted in his rank being reduced to a Private First Class. (R Ex 45, 46; T pp 70, 75-85, 104)

Petitioner’s Application for Employment states that from October 1998 to April 2001, while serving in the military, Petitioner was a hospital administrator at Fort Drum, New York. (R Ex 22; T pp. 73, 79) Petitioner explained at hearing that Hospital Administrator is the civilian title for First Sergeant. (T pp 73, 107) Petitioner’s Certificate of Release, or Discharge from Active Duty, is a record of his military career. (R Ex 45; T pp 104-105) Petitioner’s Certificate of Release or Discharge from Active Duty does not indicate that his principal duties, at anytime throughout his military career, was that of Hospital Administrator. (R Ex 45; T pp 105-107) Further, the evidence at hearing established that there are no facilities certified as hospitals in Fort Drum, New York. (T pp 107-108)

In comparing Petitioner’s various state applications for employment, there are numerous salary and date of employment discrepancies. (R Ex 1, 2, 22 and 43; T pp 79-93 )

E. PETITIONER’S RESIGNATION

Before Petitioner left Harrington’s department in March 2009, Petitioner sent an e-mail to Harrington, telling Harrington about computers not being repaired, and attributing it to race. Harrington opined at hearing that delays in repairing computers had nothing to do with race. Instead, a backlog in IT caused trouble in getting IT work performed throughout the division. (T p 268)

In Petitioner’s resignation letter, Petitioner noted that he had advised Harrington that he felt he had been disregarded as a member of Harrington’s team, that he had not been acknowledged during staff meetings or in the presence of his contemporaries, and that Harrington did not endeavor to get to know him as an individual. Harrington denied ever having a conversation with Petitioner about these topics. (T pp 268-269)

CONCLUSIONS OF LAW

The Office of Administrative Hearings (OAH) has jurisdiction over the parties and the subject matter pursuant to Chapter 126 and Chapters 150B of the North Carolina General Statutes. To the extent, the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.

The parties received notice of the scheduled hearing at least 15 days in advance.

Pursuant to N.C. Gen. Stat. § 126-5(a) (2) (c), the provisions of Chapter 126 shall apply to all employees of the following County health departments and district health departments. Petitioner was a career State employee subject to the provisions of the State Personnel Act, N.C. Gen. Stat. 126-1 et seq.

N.C. Gen. Stat. § 126-37(b) provides that an applicant for initial State employment may file a contested case hearing in OAH based upon an alleged denial of equal opportunity for employment on account of the employee’s age, sex or race.

N.C. Gen.Stat. Stat. § 126-16 provides that such equal opportunity for employment shall be given without regard to race, sex or age to “all persons otherwise qualified.”

N.C. Gen. Stat. § 126-7.1(d) provides that “Qualifications” consist of training or education, years of experience and “other skills, knowledge, and abilities that bear a reasonable functional relationship to the abilities and skills required in the job vacancy applied for.”

Petitioner has the burden of proof, by a preponderance of the evidence, to show Respondent discriminated and/or retaliated against him when it rescinded its verbal offer of employment.

Petitioner is an African-American male who alleges that after he raised the salary inequity issue with Mr. Harrington, Respondent’s Division of Public Health retaliated and discriminated against him, based his race, when it rescinded its verbal offer of employment to Petitioner.

Petitioner argued that the departmental decision makers, Stewart and Gruer, influenced Brown to rescind her verbal offer of employment to Petitioner, for the position of Human Resource Planning Supervisor III, Salary Grade 7, because Petitioner had filed a salary inequity complaint against Respondent.

10. 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. The ultimate question in a discrimination case is whether the plaintiff was the victim of intentional discrimination. North Carolina Department of Correction v. Gibson, 308 N.C. 131, 136-47, 301 S.E.2d 78, 82-88 (1983).

11. In his discrimination claim, Petitioner has the burden of proof. Because Petitioner presented no direct evidence of race discrimination and/or retaliation, his claims are subject to the burden-shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and its progeny.

12. The McDonnell Douglas scheme requires that Plaintiff prove, by a preponderance of the evidence, a prima facie case of discrimination. Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 429 (4th Cir. 2000). To prove his prima facie case, Plaintiff must establish the following four basic elements:

1. That he is a member of the protected group;

2. That he applied for the job;

3. That he was qualified; and

4. That he was rejected in favor of someone not in the protected group.

See Gibson, 308 N.C. at 137, 301 S.E.2ed at 82-83; Alvarado v. Bd. of Trustees of Montgomery College, 928 F.2d 118, 121 (4thCir. 1991); Enoch v. Alamance Co. Dep’t of Soc. Servs., 164 N.C. App. 233, 242, 595 S.E.2d 744, 752 (2004).

Once Petitioner has established his prima facie case, Respondent must respond with evidence that it acted with a legitimate, nondiscriminatory purpose. Stokes, 206 F.3d at 429. If Respondent meets this burden of production, the presumption of discrimination created by the prima facie case vanishes, requiring Petitioner to prove that Respondent’s proffered reason is a pretext for discrimination in order to recover. Id.

14. The ultimate burden of persuading the trier of fact that the employer intentionally discriminated against an applicant remains at all time with the applicant. Reeves v. Sanderson Plumbing Prods., 530 U.S.133, 143, 147 L.Ed. 2d 105, 117 (2000); see also Gibson, 308 N.C. at 138, 301 S.E.2d at 83.

15. In this case, Petitioner met the first element of his prima facie case of race discrimination. The record shows that Petitioner is an African-American male.

Petitioner also met the second element of his prima facie race discrimination case. The record indicates that Petitioner applied for the position of Human Resource Planning Supervisor III.

As to the third element of a prima facie case, Petitioner provided conflicting dates of employment, and inconsistent claims as to his qualifications on all three job applications. (Respondent’s Exhibits 22, 22, 43) In his job applications from 2008 and 2009, Petitioner indicated that he had a Master’s Degree in Business Administration, Health Care Management. However, the preponderance of the evidence showed that Petitioner held a Master’s Degree in Business Administration, with a specialization in Health Care Management. (R Ex 22 and 43)

Petitioner indicated that he had served in the Army from January 1984 to April 2001, and that he had served honorably. However, the preponderance of the evidence showed that he was discharged under other than honorable conditions in lieu of trial by court martial. (R Ex 1,2, 22, 43 and 45)

Petitioner’s 2004 and 2005 applications indicated that he was discharged as a Master Sergeant when in fact, he had been reduced in rank to Private at the time of his discharge. (R Ex 1, 2, 45, and 46)

Petitioner listed different salary levels on different applications for the same jobs. For example, he claimed to a $38,000 salary in September 2004 at his job at the Office of Minority Health. However, in his 2008 and 2009 applications, he claimed that he was making $33,000, when he left the Office of Minority Health for the same job for the same time. (R Ex 22 and 43)

In his 2008 and 2009 job applications, Petitioner claimed that he was stationed at Fort Drum, New York from April 1996 to April 2001, and that he was a hospital administrator during that time. However, on his September 2004 job application, Petitioner lists a job as “Strength Manager (Marketing)” in Durham, North Carolina from April 1996 to October 1998 – a period of 2 ½ years, conflicting with the statements on his 2008 and 2009 jobs application. (R Ex 22 and 43) Petitioner’s failure to list the strength manager position, but instead claiming that he was a hospital administrator during that period, is a material misrepresentation of Petitioner’s job qualifications.

In his September 2004 job application, Petitioner claimed that he was a faculty Instructor/Project Director at Fort Sam Houston for 8 years from April 1987 to April 1996. Yet in his April 2008 job application, Petitioner claimed that from 1986 to 1992, he was a nurse/ward master, and that from 1992 to 1996, he was an operations manager. (R Ex 1 and 22)

In his June 2005 job application, Petitioner wrote that he was working for Ellis Consulting Service from June 2003 to March 2005. He indicated he was making $45,790 annually working 20 hours a week, at the same time he was a full-time employee with the DHHS Controller’s office. Petitioner did not list this business again on either of his later applications, even though the job posting in this case specifically required listing all employment.

In his June 2005 job application, Petitioner listed his employment as Program Administrator, from February 1992 to April 1996. Petitioner listed an $18,000 starting salary, and an $39,000 ending salary for that job. On his April 2008 job application, Petitioner listed his job as Operations Manager from February 1992 to April 1996. His starting salary at that job was $32,600, while his ending salary was $39,000. At hearing, Petitioner failed to provide any reasonable explanation for the variation in the above-cited salaries. (R Ex 2 and 22)

Based on a review of Petitioner’s various applications, it is unclear exactly what were Petitioner’s qualifications. While some discrepancies may be viewed as minor, many others are significant and material. Petitioner was either intentional or seriously negligent in how he represented his qualifications. The job at issue this case required a high level of integrity. The report of the Office of Internal Auditor raised serious doubts about Petitioner’s ability to manage budgets and to maintain accurate accounting of money. However, Petitioner’s representation of his qualifications and the serious discrepancies in his applications and his military record raise additional doubts about his integrity.

Even if Petitioner was qualified for the position, Petitioner failed to present sufficient evidence that Respondent’s explanation for rescinding the verbal job offer was false, that it was related to his race, or that it was in retaliation for Petitioner complaining to his supervisor, Mr. Harrington, about his salary. Instead, the preponderance of the evidence showed that when Ms. Brown rescinded the job offer to Petitioner, she had a reasonable belief that Petitioner did not represent his qualifications accurately to her. Furthermore, there is no evidence that Brown’s decision to rescind the offer was based on Petitioner’s race, or that Brown even knew that Petitioner had filed a complaint about salary inequity with Mr. Harrington.

If Respondent comes forward with evidence showing legitimate, nondiscriminatory reasons for its hiring decision, then Petitioner must demonstrate that the proffered reasons are false and a mere pretext for discrimination. Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 143, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105, 117 (2000) citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993). In this case, Petitioner has presented no evidence that Respondent’s explanation for rescinding the job offer was false or racially discriminatory.

As to his retaliation claim, Petitioner only establishes a prima facie case of retaliation when he proves, by the preponderance of the evidence, that: (1) he engaged in a “protected activity;” (2) Respondent took an “adverse employment action” against him; and (3) a causal connection exists between the protected activity and the adverse employment action, i.e., that “but for” the former, the latter would not have occurred. Von Gunten v. Maryland, 243 F.3d 858, 863 (4th Cir. 2001).

Here, Petitioner failed to present any evidence that the hiring official, Elizabeth Brown, knew or should have known that Petitioner had filed a complaint with Dennis Harrington, Paula Taylor, and Kathy Gruer about his compensation. There was no evidence presented that Petitioner’s statements to Harrington about racial diversity, was communicated to Dan Stewart, Jeff Horton or Elizabeth Brown. Petitioner failed to establish a causal connection between the protected activity and Brown’s decision to rescind the job offer.

A preponderance of the evidence established that Dan Stewart was bound by the personnel policy limiting Petitioner’s salary increase to 5% per pay grade, and thus, could not approve Petitioner’s job offer with a 40% salary increase. Petitioner failed to present any, let alone, sufficient evidence that Dan Stewart had any racial animus or retaliatory motive towards Petitioner.

Similarly, Petitioner failed to present any evidence that Dennis Harrington influenced Brown’s decision to rescind the job offer to Petitioner. For that reason, the undersigned need not address the question whether Harrington racially discriminated against Petitioner during his employment under Harrington.

The salary offer incidentally brought forward the issues related to the Internal Auditor’s report and findings. At his interview, Petitioner failed to mention the Auditor’s report and findings, or the relationship between his non-profit organization and Public Health funding. Petitioner was being considered for the Assistant Chief of Budget, a position that required expert accounting and budgeting skills, and a person of integrity and trust. Consequently, the audit findings contradicted the skills, integrity and trust Petitioner had represented to Ms. Brown, on his application and at the interview. Petitioner’s failure to mention the auditor’s report during the interview process spoke to his integrity. After learning of the auditor’s report, Brown rescinded the job offer to Petitioner, and did not attempt to make a different offer with a lower salary.

The evidence put forth by Petitioner falls short of demonstrating that Respondent’s proffered reasons for its actions are false, and a mere pretext for race discrimination and retaliation.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that the State Personnel Commission should AFFIRM the Respondent’s decision in this matter and dismiss Petitioner claims.

ORDER AND NOTICE

The North Carolina State Personnel Commission will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it 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. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

This the 22nd day of February, 2010.

_________________________________

Melissa Owens Lassiter

Administrative Law Judge

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing DECISION was served upon the following persons by depositing same in the U.S. Mail, prepaid postage and addressed as follows:

Angela Newell Gray

Gray Newell , LLP

7 Corporate Center Court Suite B

Greensboro, NC 27408

ATTORNEY FOR PETITIONER

Kathryn J Thomas

Assistant Attorney General

NC Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ATTORNEY FOR RESPONDENT

This the _____day of February, 2010.

________________________________

Office of Administrative Hearings

6714 Mail Service Center

Raleigh, NC 27699-6714

(919) 431 3000

Fax: (919) 431-3100

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