STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENBURG 09 OSP 6459

|FORREST TRAVIS COSTON, | |

|Petitioner, | |

|v. | |

| |DECISION |

|UNIVERSITY OF NORTH CAROLINA-CHARLOTTE, | |

|Respondent. | |

The above-captioned case was heard before the Honorable Selina M. Brooks, Administrative Law Judge, on November 8-9, 2010, in Charlotte, North Carolina.

APPEARANCES

FOR PETITIONER: John Gresham, Esq.

Tin Fulton Walker & Owen, PLLC

741 Kenilworth Av.

Charlotte, N.C. 28203

FOR RESPONDENT: John P. Scherer, II

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, N.C. 27602

EXHIBITS

Admitted for Petitioner:

|Exhibit No. |Date |Document |

|1 |4/24/09 |Evaluation |

|2 |8/25/09 |FMLA Application |

|3 |various |Coston Medical Records |

|4 |N/A |Polycythemia Causes, Symptoms and Treatment |

|5 |N/A |Wikipedia description of Polycythemia |

|6 |N/A |WebMD Hypertension / High Blood Pressure Guide |

|7 |various |Mulholland DWI documents |

|8 |N/A |Tidewater, Virginia Map |

|11 |N/A |NCGS § 20-16.3, 10A NCAC 41B.0501, .0502, .0503 |

|13 |6/5/05 |UNCC DWI Enforcement Procedures |

|18 | |Fleming v. NC CJETSC documents |

|19 | |Mulholland administrative investigation |

|20 |N/A |Medline Plus Polycythemia |

|21 | |“Thirty-third Annual Training Conference and Exhibit” |

Admitted for Respondent:

|Exhibit No. |Date |Document |

|1 |9/22/09 |Blydenburgh Memo to File re: Internal Investigation |

|2 |9/22/09 |Blydenburgh Memo to File re: Telephone Conversation |

|3 |9/08/09 |Letter from Stinnett to Coston, with enclosures |

|4 | |UNCC Police & Public Safety Gen. Orders 2.1, 2.5, 3.1, 4.1, 5.2 |

|5 |Nov. 2007 |Motor Fleet Management Regulations |

|6 |8/31/09 |Transcript of follow-up interview with Travis Coston |

|7 |8/19/09 |Transcript of interview with Robert Tyler |

|8 |8/13/09 |Transcript of interview with Jason Orr |

|9 |8/12/09 |Blydenburgh status report |

|10 |8/10/09 |Transcript of interview with Travis Coston |

|11 |8/10/09 |Employee Notification of Rights |

|12 |8/06/09 |E-mail from Jason Orr |

|13 |8/04/09 |Transcript of interview with Don Davis |

|14 |7/29/09 |Transcripts of interviews with Travis Cooke |

|15 |N/A |Fleming criminal records check |

WITNESSES

Called by Petitioner:

Forrest Travis Coston

Jeanne Louise Madorin

Called by Respondent:

Lawrence Edgar Blydenburgh

Marlene Elaine Hall

Henry Dearcy James, Jr.

Jeanne Louise Madorin

Gary Wesley Stinnett

ISSUES

(1) Whether Respondent had just cause to dismiss Petitioner.

(2) Whether Respondent discriminated against Petitioner because of his race.

ON THE BASIS of careful consideration of the sworn testimony of witnesses presented at the hearing, documents received and admitted into evidence, and the entire record in this proceeding, the undersigned makes the following findings of fact. In making these findings, the undersigned 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; any interest, bias or prejudice the witness may have; the opportunity of the witness to see, hear, know and remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether such testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case pursuant to Chapters 126 and 150B of the North Carolina General Statutes.

2. Petitioner Forrest Travis Coston was a permanent State employee subject to Chapter 126 of the North Carolina General Statutes.

3. Respondent University of North Carolina at Charlotte (“UNCC”) is subject to Chapter 126 and was Petitioner’s employer.

4. On July 24-26, 2009, Petitioner was attending a conference in Norfolk, Virginia. Petitioner drove a state vehicle to the conference. On the evening of July 25, 2009, Petitioner consumed one beer and some hors d’oeuvres at a reception in the hotel where the conference was being held. Petitioner then drove the state vehicle some distance to visit his daughter who “lived around the corner” from the club in Virginia Beach where Petitioner met some other conference attendees later that evening. He had another beer with a fish dinner, followed by a mixed drink. Around two-fifteen on the morning of July 26, 2009, Petitioner began driving back to his hotel. Petitioner became drowsy and pulled the state vehicle over onto the shoulder of the road to sleep in the car. T pp. 56-57, 370-71, 376-85; Resp. Ex. 10

5. Petitioner has polycythemia, a blood disorder which causes him to become fatigued. T pp. 364-65; Pet. Ex. 3; Pet. Ex. 4; Pet. Ex. 5; Pet. Ex. 6 He also suffers from hypertension and acid reflux. T p 386 A symptom of polycythemia is fatigue, and Petitioner has on occasions become fatigued while driving, and pulled off of the road and slept. T p 395

6. At about 4:00 a.m. on July 26, 2009, J. T. Orr, who worked for the Virginia Department of Transportation, came across Petitioner in the state vehicle, which was on the side of the road with the engine running and in an unsafe location. Mr. Orr attempted to wake Petitioner by knocking on the window. Petitioner opened his eyes and looked at Mr. Orr, then closed his eyes again. Mr. Orr then summoned the Virginia Highway Patrol. T pp. 49-51; Resp. Ex. 8; Resp. Ex. 12 Petitioner had no memory of Mr. Orr. T p. 386

7. Trooper Travis Cooke, who had worked for the Virginia Highway Patrol for 6.5 years, answered the call from dispatch regarding Petitioner. Upon arriving, Trooper Cooke had difficulty waking Petitioner, but eventually did so by knocking on the car window with his flashlight. When Petitioner opened his door, Trooper Cooke smelled alcohol. Petitioner appeared disoriented and thought he was in North Carolina talking on the phone. Trooper Cooke administered an alco-sensor test (“PBT”), which indicated that Petitioner’s blood-alcohol level was 0.11, over the legal limit of 0.08. According to Trooper Cooke, it “was very obvious” that Petitioner was intoxicated. Trooper Cooke chose not to arrest Petitioner for DWI. T pp. 44-47; Resp. Ex. 14 According to Petitioner, Trooper Cooke is several inches shorter than him. He was required to lean forward when he blew in the alco-sensor. Trooper Cooke did not perform a second alco-sensor test or conduct a standard roadside sobriety test. T pp. 386-90

8. Trooper Cooke called Don Davis to tow Petitioner’s car. Trooper Cooke asked Mr. Davis to drive Petitioner to a public place where he could make arrangements to be driven back to his hotel and then to impound the car. According to Mr. Davis, Petitioner smelled of alcohol, was slurring his words, and was staggering. T pp. 48-49; Resp. Ex. 13

9. When the tow truck arrived, Trooper Cooke instructed Petitioner to go with the truck. T pp. 390-91

10. Mr. Davis dropped Petitioner at a nearby convenience store. Reverend Robert Tyler was in the store and offered Petitioner a ride to his hotel. Petitioner paid Rev. Tyler $10. Rev. Tyler told Major Blydenburgh that Petitioner did not appear to him to be intoxicated, did not smell of alcohol, and was not slurring his speech. Rev. Tyler also told Major Blydenburgh that he and his fiancée had been stopped by Trooper Cooke earlier that same day. T pp. 72-73; Resp. Ex. 7

11. After arranging to have Petitioner’s car impounded, Trooper Cooke called the UNCC Police Department, and he spoke with Marlene Hall, who was the Director and Chief of Police and Public Safety at UNCC at the time. T pp. 145, 147-48

12. Chief Hall called Petitioner on the afternoon of July 26, 2009, and requested that he return to Charlotte. She agreed that he could return on Monday morning, July 27, 2009. Petitioner remained at the convention until about 8:00 p.m. on July 26, 2009, and then returned to his hotel. T pp. 149-50, 397-98

13. On the morning of Monday, July 27, 2009, Petitioner packed in a hurry and returned to Charlotte. He left the hotel without checking out. Petitioner had originally planned to stay at the hotel until January 29, 2009. T pp. 399-402

14. When he arrived in Charlotte, Petitioner met with Chief Hall and Major Blydenburgh, who was the Assistant Director of Police and Public Safety at UNCC at the time. Chief Hall informed Petitioner that there would be an investigation and that he was being put on light duty. Chief Hall asked Petitioner to turn in his firearm and badge. Petitioner reported that he had left his firearm, belt, uniform and camera at the hotel in Virginia. Petitioner stated that the firearm was locked in a safe in his hotel room when, in fact, he had left his weapon in a drawer. T pp. 38, 41-42, 150-51, 400-01 Petitioner testified that he was aware other officers stored their weapons in similar locations when attending conferences. T pp. 374 & 472

15. Chief Hall and Major Blydenburgh instructed Petitioner to call the hotel or local police to make sure the weapon was secure. Petitioner called the hotel and learned that the room was still in his name; however, he did not mention his weapon. Petitioner did not call the local police. On Tuesday, July 28, 2009, Petitioner returned to the Norfolk area to retrieve his weapon and turned it in to Chief Hall later that afternoon. T pp. 42, 151-52, 401-03 After he returned the items, Petitioner was out of work for a week or more with symptoms of his polycythemia and hypertension. T p. 403

16. Major Blydenburgh conducted an investigation into the incident, including conducting interviews with those who had interacted with Petitioner during the incident. He made notes of his interviews and kept Chief Hall and Henry James, who was the Associate Vice Chancellor over the Police Department, informed as the investigation proceeded. T pp. 40-41, 68, 129, 153, 203, 207; Resp. Ex. 1

17. An initial assessment indicated that Petitioner may have violated the following rules and regulations: General Order 4.1; General Order 2.1; State Personnel Manual Section 7, p. 3; Motor Fleet Regulations, Ch. 7, Section 1. Petitioner was so informed and signed an Employee Notification of Rights. T pp. 53-54, 156-57; Resp. Ex. 11

18. Major Blydenburgh interviewed Petitioner for the first time on August 10, 2009. During this interview, Petitioner repeated that he had left his duty weapon in a locked safe in the hotel. Petitioner stated that he had forgotten his firearm, accidently leaving it in the safe. In response to questioning by Major Blydenburgh, Petitioner described in detail the safe in his room at the hotel. T pp. 62-64, 405-06; Resp. Ex. 1; Resp. Ex. 10

19. Despite the instructions from Chief Hall and Major Blydenburgh, Petitioner did not request that the hotel management or local police secure his weapon. T pp. 64-65, 401

20. On August 13, 2009, Major Blydenburgh called the hotel where Petitioner had stayed and learned that the hotel did not have safes in the rooms. T p. 70; Resp. Ex. 2

21. Major Blydenburgh worked part-time, averaging about three days per week in the office, but he was always available by cell phone. Petitioner was out on Family Medical Leave from August 25 until August 31, 2009, to assist his mother. Petitioner did not attempt to contact Major Blydenburgh during that period to correct his deception about a safe. T pp. 75, 408-09, 464-65; Pet. Ex. 2

22. Petitioner had been trained about the importance of securing his weapon. T p. 466

23. Petitioner had been a police officer for many years and knew that truthfulness was an important part of the job. T p. 460

24. Major Blydenburgh conducted a follow-up interview with Petitioner on August 31, 2009. During this interview, Petitioner admitted that he had not told the truth when he said he left his weapon in a safe in his hotel room. Petitioner stated that he told Chief Hall and Major Blydenburgh that the weapon was locked in a safe because he wanted them to be comfortable that the weapon was secure. T pp. 76-81; Resp. Ex. 6

25. During Major Blydenburgh’s original interview with Petitioner, Petitioner alleged that Trooper Cooke had administered the PBT incorrectly by having Petitioner bend over. Resp. Ex. 10

26. Major Blydenburgh conducted a follow-up interview with Trooper Cooke on August 13, 2009, during which he asked Trooper Cooke whether he had Petitioner bend over to take the PBT, and Trooper Cooke stated that Petitioner was standing straight up during the test. Resp Ex. 14

27. After concluding his investigation, Major Blydenburgh discussed it with Chief Hall and Mr. James. Major Blydenburgh recommended that Petitioner be terminated, primarily because Petitioner had been untruthful about the weapon. Once he received transcriptions of the telephone interviews he had conducted, Major Blydenburgh compiled a final written report. T pp. 92-94; Resp. Ex. 1

28. As a result of Major Blydenburgh’s investigation, management determined that Petitioner should be dismissed due to unacceptable personal conduct. Chief Hall decided to dismiss Petitioner in part because of his violation of General Orders and Motor Fleet Management Regulations, but above all, because of his dishonesty during the investigation. She discussed the decision to dismiss with her supervisor, Mr. James, who concurred. Mr. James was especially troubled by Petitioner’s dishonesty since he had, on more than one occasion, stressed the need to Petitioner of the importance of being totally truthful during the investigation. From Mr. James’s perspective, it did not matter that Petitioner eventually admitted that there was no safe in the hotel room; the fact that Petitioner lied during the investigation was a serious act of misconduct. T pp. 85-92, 168-69, 209-10, 218-19; Resp. Ex. 3; Resp. Ex. 4; Resp. Ex. 5

29. Following protocol, on August 31, 2009, Chief Hall wrote a memorandum to Jeanne Madorin, in Human Resources, recommending Petitioner’s dismissal. T p. 168; Pet. Ex. 14

30. Ms. Madorin reviewed the recommendation, determined in consultation with her supervisor, Gary Stinnett, that there was just cause for dismissal, and approved Petitioner’s dismissal. T pp. 248-51A pre-disciplinary conference was scheduled and held on September 4, 2009. Petitioner was dismissed effective September 8, 2009. T p. 251; Resp. Ex. 3

31. The undersigned finds Petitioner’s testimony that he lied about whether his service weapon was secure to be credible because Petitioner admitted that he lied to Chief Hall and Major Blydenburgh about the gun being in a safe in his hotel room, because he wanted them to believe that the weapon was secure.

32. The undersigned finds as a fact that Petitioner intentionally misled his superiors about the location of his service weapon.

32. The undersigned finds as a fact that Petitioner lied during the investigation into his conduct.

33. Even if the undersigned were to accept the truth of Petitioner’s testimony, the undersigned finds that Petitioner, who was employed as a law enforcement officer, engaged in conduct unbecoming a State employee that is detrimental to state service on the basis of the following: Petitioner kept his weapon in a drawer in a hotel room; he left the weapon in the drawer when he left the hotel with no intention of returning; and, when he realized he had left his weapon unsecured in a drawer in a hotel room, he failed to call responsible authorities to have the weapon secured. And, by his own admission, Petitioner lied about it during an investigation.

34. Respondent had just cause to dismiss Petitioner.

35. Petitioner alleged that he was discriminated against on the basis of his race. Specifically, Petitioner contends that Officers Mulholland and Fleming, both of whom are white, engaged in similar or more egregious conduct but were not dismissed.

36. The undersigned finds that Lieutenant Mulholland and Officer Fleming were not similarly situated to Petitioner. The conduct of these officers did not occur while they were on duty or in state-owned vehicles, and there was no evidence that the officers lied to investigators. T pp. 173, 214, 279

37. Furthermore, Petitioner did not present any evidence of racial animus on the part of the decision-makers. On the contrary, Chief Hall, who made the decision to dismiss Petitioner, had promoted Petitioner from sergeant to interim lieutenant. T p. 146-47

38. Mr. James, who concurred with the decision to dismiss Petitioner, is African-American. T p. 202

39. The undersigned finds as a fact that Petitioner was not dismissed because of his race.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdictions over the issues in this contested case pursuant to Chapter 126 and Chapter 150B of the North Carolina General Statutes.

2. On the issue of just cause, the State employer has the burden of proving that there was just cause for the dismissal. N.C. Gen. Stat. § 126-35(d)

3. Pursuant to regulations promulgated by the Office of State Personnel, there are two bases for the dismissal of an employee for just cause: (1) unsatisfactory job performance; and (2) unacceptable personal conduct. 25 N.C.A.C. 1J.0604(b).

4. An employee may be dismissed without any prior warning or disciplinary action when the basis for dismissal is unacceptable personal conduct. 25 N.C.A.C. 1J.0608(a). One instance of unacceptable conduct constitutes just cause for dismissal. Hilliard v. North Carolina Dep’t of Corr., 173 N.C. App. 594, 597, 620 S.E.2d 14, 17 (2005).

5. Unacceptable personal conduct includes: “conduct for which no reasonable person should expect to receive prior warning”; “the willful violation of known or written work rules”; “conduct unbecoming a state employee that is detrimental to state service.” 25 N.C.A.C. 1J.0614(i).

6. Petitioner’s conduct, as described in Findings of Fact Nos. 31-34, constituted unacceptable personal conduct.

7. Respondent followed the procedures required before dismissing Petitioner for unacceptable personal conduct.

8. Respondent had just cause to dismiss Petitioner.

9. With regard to Petitioner’s discrimination claim, the North Carolina Supreme Court has adopted the burden-shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), for discrimination cases. North Carolina Dep’t of Corr. v. Gibson, 308 N.C. 131, 301 S.E.2d 78 (1983).

10. Under the McDonnell Douglas burden-shifting scheme, a petitioner must first establish a prima facie case of discrimination. He may do this “by showing the discharge of a black employee and the retention of a white employee under apparently similar circumstances.” Gibson, 308 N.C. at 137, 301 S.E.2d at 83.

11. Under McDonnell Douglas, if a petitioner establishes his prima facie case, the burden then shifts to the respondent to articulate a legitimate, non-discriminatory reason for its decision. If the respondent articulates a legitimate, non-discriminatory reason for the decision, then the burden shifts back to the petitioner to prove that the reason given by the respondent was a pretext for discrimination.

12. Even if Petitioner here made out a prima facie case of discrimination, Respondent has articulated a legitimate, non-discriminatory reason for dismissing him. Petitioner has not proved that Respondent’s reasons for the dismissal were a pretext for discrimination.

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

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that Respondent had just cause to dismiss Petitioner and that Petitioner was not discriminated against because of his race. Respondent’s action is therefore AFFIRMED.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Services Center, Raleigh, N.C. 27699-6714, in accordance with N.C.G.S. § 150B-36(b).

NOTICE

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

The agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings. The agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.

This the 22nd day of February, 2011.

_______________________________

Selina M. Brooks

Administrative Law Judge

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