STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

GUILFORD COUNTY 05 OSP 0626

_____

C. W. McADAMS, )

Petitioner, )

)

) DECISION

NORTH CAROLINA DEPARTMENT )

OF TRANSPORTATION, )

Respondent. )

This matter was heard before Senior Administrative Law Judge Fred G Morrison Jr in Raleigh, North Carolina, on 10 June 2009. Alan McSurely, Esquire appeared on behalf of Petitioner. Neil Dalton, Special Deputy Attorney General, appeared on behalf of Respondent.

PROCEDURAL BACKGROUND

Petitioner C. W. McAdams commenced this contested case by filing a petition on April 18, 2005. Respondent moved to dismiss all claims, which motion was granted by the undersigned in an Order of Dismissal Final Decision filed on November 2, 2006. Petitioner filed a petition for judicial review in Wake County Superior Court and on August 1, 2008, Special Superior Court Judge Cressie H. Thigpen Jr. filed an order concluding that “the Order of Dismissal Final Decision regarding the Written Warning dated July 27, 2004 and Respondents responses dated July 29, 2004 and August 5, 2004 is Affirmed. IT IS FURTHER ORDERED that the Order of Dismissal Final Decision regarding the issue of harassment and retaliation based on race is Remanded to the Office of Administrative Hearings for a hearing and further proceedings on that issue.”

ISSUE

Whether Petitioner was the victim of harassment or retaliation based on his race?

EXHIBITS

Respondent’s Exhibits 1-6 and 8-15 were admitted into evidence.

Petitioner’s Exhibits 1, 2, 3, 3.5, 4, 5, 6, and 9 were admitted into evidence.

Based upon sworn testimony, the admitted exhibits and other competent evidence admitted at the hearing, the undersigned makes the following:

FINDINGS OF FACT

1. Charles McAdams (hereinafter “Petitioner”) has successfully protested Respondent’s race discrimination against him. In McAdams v. NC DMV, 01 OSP 0229, (“McAdams I”) five days of hearing led the Administrative Law Judge (“ALJ”) to conclude that the Respondent’s “sole proffered reason for selecting a white candidate over [Petitioner] was a pretext for intentional discrimination. Petitioner had more general police and related experience than the white candidate, more administrative experience, more law enforcement experience, more education (B.A. in Criminal Justice v. H.S. diploma) more training and an Advanced Law Enforcement Certificate (versus none.)” The ALJ also concluded that the disparities in the interview scores (the three white interviewers averaged 25 points lower for the Black candidate than did the scores of the two Black interviewers) were evidence of racial bias.”

2. The ALJ decision concluded that the “DMV decision-makers dissembled to Petitioner and to the trier-of-fact in regard to this case. Colonel Richards (who was replaced as the Director of Law Enforcement Division on the second day of the hearing) and Lieutenant Colonel Sizemore, (who took Colonel Richards’ place on the morning of the second day of the hearing) were not credible when they both testified that this promotion decision was routine with little or no discussion, and that they merely went with the candidate with the highest number. The possible promotion of the first Black District Supervisor in several years could not have been that routine.”

3. The ALJ ordered that the DMV instate Petitioner into the position he had applied for, adjust his record to reflect his being the Forsyth District Supervisor as of June 26, 2000; award him all the pay and other benefits he would have received “had he not been the victim of the Agency’s discrimination;” obtain technical assistance from Office of State Personnel (“OSP”) experts to design or review selection procedures;” assign Petitioner to create a small committee of veteran DMV employees to work with the OSP review and design committee to insure the hiring, promotion and ongoing accountability mechanisms are workable and fair; and provide Captain Carl Pigford with the resources he needs to improve the hiring and promotion percentages of African Americans and other minorities.” This Decision against the DMV (the same agency which is Respondent here, although it has since become a “Bureau” of the DOT) was filed on September 30, 2002.

4. Respondent’s leadership, after receiving this Decision in early October 2002, initiated a plan to maintain the less qualified white officer in the Forsyth District Supervisor position, and to promote and place Petitioner in a District Supervisor position which would be transferred to the State Highway Patrol. In December 2002, after collecting written evidence of this plan, Petitioner filed another contested case which challenged this “position switching and alleging various other forms of retaliation against Petitioner as a result of his success on the earlier case.”

5. On January 17, 2003, the ALJ granted a preliminary injunction ordering Respondent to “maintain McAdams in the Forsyth County District Supervisor’s position,” and that it “shall take no action to adversely affect McAdams’ employment pending appeal and that it will treat McAdams in good faith and with the same concern it shows for white senior officers.” Respondent then removed the person from the Forsyth Supervisor position; placed Petitioner into that position resulting in no transfer of Petitioner to the Highway Patrol; paid to Petitioner the back pay, front pay and attorney’s fees ordered in the earlier Decision; adjusted Petitioner’s salary and pay grade to the appropriate level; placed Petitioner on two different committees charged with the duties of revising DMV’s overall hiring, promotional and recruitment process and even made Petitioner chairman of the recruitment committee; issued numerous directives to other members of the DMV License and Theft Bureau that Petitioner would remain as District Supervisor in the Forsyth County District and that he was to be treated fairly and not subjected to any retaliatory actions; provided Petitioner with a Dodge Durango state car to drive and undercover tag; provided Petitioner with extra temporary office personnel to assist in the absence of his secretary; and submitted orders for new office furniture and other items requested by Petitioner.

6. On November 14, 2003, the ALJ issued a decision which found that Petitioner testified at the hearing on the merits on August 25, 2003, that he believed that he had been treated fairly by Respondent since being placed in the Forsyth District Supervisor position and that Respondent had made every effort to comply and had fully complied with the earlier Decision. The ALJ also found that Petitioner entered into a Settlement Agreement with Respondent and ultimately withdrew his initial Petition for Contested Case Hearing set out in 01 OSP 229 on June 16, 2003. Petitioner filed a Notice of Voluntary Dismissal of 01 OSP 229 on or about July 10, 2003, prior to review by the State Personnel Commission. The ALJ Decision also incorporated the language of the preliminary injunction as a permanent injunction and ordered Respondent to pay $7350.00 to Petitioner for his reasonable attorney’s fees.

7. On April 5, 2004, the State Personnel Commission heard the parties’ arguments about Petitioner’s second successful challenge of Respondent’s personnel actions. On May 5, 2004, the Commission adopted the ALJ’s Decision as its Final Decision, including the permanent injunction that Respondent “shall take no action to adversely affect McAdams’ employment pending appeal and that it will treat McAdams in good faith and with the same concern it shows for white senior officers.” The Commission’s Order also concluded that “Respondent’s actions with regard to Petitioner’s employment since the entry of a Preliminary Injunction be affirmed as nonretaliatory and the Commission hereby finds that there is no basis for Petitioner’s request for additional relief beyond that ordered by the Administrative Law Judge.”

8. During the week of June 21-25, 2004, when neither Petitioner or Respondent had petitioned for judicial review of the State Personnel Commission decision, Petitioner took a vacation. Prior to this week, he had had discussions with his Raleigh supervisor, Director John Robinson, about an investigation and planned disciplinary action concerning the alleged taking of a bribe/gift from a dealer by one of their inspectors. Petitioner had commented that he was against any disciplinary action. Director Robinson had told Petitioner to “stand down” concerning this serious matter, as it was being handled by his superiors in Raleigh. During Petitioner’s absence, Robinson told Deputy Director Jimmy Edwards to have Petitioner’s assistant supervisor, Lieutenant Jack Coltrane, deliver notices of a predisciplinary conference to the inspector, which was done twice by Coltrane.

9. Petitioner returned to work on Monday, June 28, 2004, the only Black Captain/District Supervisor for Respondent in the state. After not being able to reach Petitioner and conferring again with Director Robinson, Deputy Director Edwards again contacted Lieutenant Coltrane on June 29, 2004, to bring the inspector to Raleigh on June 30, 2004, for an 11:00am predisciplinary conference. On Tuesday afternoon, June 29, 2004, Lieutenant Coltrane contacted and advised Captain McAdams that he had been directed by Edwards “to accompany” the inspector to a predisciplinary conference on the next morning. Petitioner was upset at learning this as he was against any disciplinary action, wanted to be there to put in a good word for the inspector, and felt slighted. Petitioner made no effort to change the “accompany” assignment given to the assistant supervisor. The disciplinary conference was held “with the employee at issue on the same date of June 30, 2004” at 11 a.m.

10. On Wednesday, June 30, 2004, about 8 minutes before the disciplinary conference began, Petitioner sent an email with heading ““Procedure/Equal Treatment” to Major Edwards with copies to Director John Robinson; the Agency Internal Affairs Director, Carl G. Pigford; Teresa Crudup of DOT; and Lawyers@, who had represented him in the prior cases. This email contained, among others, the following sentence: “He advised me that he was to accompany Inspector X(gave employee’s name) to a disciplinary action to be held this am in your office.” Petitioner said he was unclear about and requested clarification on the procedure used.

11. Petitioner’s email questioned whether the procedure of directing the assistant supervisor to accompany one of their subordinates to a “disciplinary action” being held by Major Edwards without notifying Petitioner was not “equal treatment.” “I feel I am not being treated the same as other District Supervisors.” Petitioner presented no evidence that this did not happen in other districts and he gave no specific policy on point to support his belief. Shortly after the disciplinary conference, Major Edwards called Petitioner and said “I’m not trying to circumvent you” at the beginning of the phone call. Edwards reported to Robinson that Petitioner continued to question the need for discipline and talked down to him in an intimidating/insubordinate manner during their conversation.

12. Petitioner’s email and conversation with Major Edwards became the basis for a July 27, 2004, Written Warning against Petitioner, which was issued by Director Robinson after he had conferred with Edwards, the DMV Commissioner, DOT personnel officials, and an assistant attorney general. Robinson is a Black male who had been a friend and mentor of Petitioner for years. He had not been involved in the personnel actions successfully grieved by Petitioner. He had been assigned to supervise Petitioner to make sure that he was treated fairly. Major Edwards had also not been involved in the prior personnel actions and he and Robinson had never exhibited any racial animus toward Petitioner. Robinson had convinced Petitioner to delay his retirement for one year.

13. Director Robinson issued the written warning because he believed that Petitioner had violated law and policies when he shared with his attorney the personal information about an employee being disciplined. He also believed that Petitioner had been disrespectful/insubordinate to his superior, Major Edwards, during their telephone conversation. Petitioner’s testimony was that “John issued the warning to back Edwards and keep his job.”

14. On August 3, 2004, Petitioner sent a memo to Director Robinson requesting that the written warning be removed from his personnel files. On August 5, 2004, Director Robinson responded that he had reviewed the request and after careful consideration decided that the written warning would stand and he now considered the case officially closed. In December 2004 Petitioner talked with DOT Human Resources Director Herb Henderson who suggested that he confer with the Bureau Director again about the issue.

15. On February 1, 2005, Petitioner sent another memo to Director Robinson requesting that he reconsider his August 5, 2004, decision refusing to remove the written warning. He referred to the permanent injunction mandate that DMV treat him with the same respect it showed to senior white officers and his belief that Edwards did not circumvent senior white officers in personnel matters. Petitioner retired at the end of February 2005. He received no response to his February 1st request for reconsideration. On April 18, 2005, he filed a petition for a contested case hearing.

CONCLUSIONS OF LAW

1. The parties are before the Office of Administrative Hearings pursuant to an Order from Wake County Superior Court. They received proper notice of the hearing in this matter.

2. Petitioner has not persuaded me by the greater weight of the evidence presented that he was the victim of harassment or retaliation based on race.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that Petitioner is not entitled to any further relief from Respondent.

ORDER AND NOTICE

The North Carolina State Personnel Commission will make the Final Decision in this contested case. The agency is required to give each party an opportunity to file exceptions and to present written arguments regarding this Decision issued by the Undersigned in accordance with N. C. Gen. Stat. § 150B-36. State Personnel Commission procedures and time frames regarding appeal to the Commission are in accordance with Section 0.0400 – Appeal to Commission of Title 25, Chapter 1, Sub Chapter B of the North Carolina Administrative Code (25 NCAC 01B .0400).

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, giving due regard to the opportunity of the administrative law judge to evaluate the credibility of witnesses. 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. Every finding of fact not specifically rejected as required by Chapter 150B shall be deemed accepted for purposes of judicial review. 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 establishing that the new finding of fact is supported by a preponderance of the evidence in the official record. 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.

This the____day of August, 2009.

_____

Fred G Morrison Jr

Senior Administrative Law Judge

A copy of the foregoing was mailed to:

Alan McSurely

Attorney at Law

PO Box 1290

Chapel Hill, NC 27514

ATTORNEY FOR PETITIONER

Neil Dalton

Assistant Attorney General

NC Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ATTORNEY FOR RESPONDENT

This the ____ day of August, 2009.

____________________________________

Office of Administrative Hearings

6714 Mail Service Center

Raleigh, NC 27699-6714

(919) 431 3000

Fax: (919) 431-3100

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