STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 07 OSP 0365

ANGELA TOWNSEND,

Petitioner,

v.

N. C. DEPARTMENT OF CORRECTION, Respondent.

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DECISION

On November 6, 2007, Administrative Law Judge Melissa Owens Lassiter conducted an administrative hearing on this contested case in Raleigh, North Carolina. At the conclusion of the evidence, the undersigned ruled for Respondent, and asked Respondent to submit a proposed Decision. On December 20, 2007, Respondent filed its proposed Decision with the Office of Administrative Hearings.

APPEARANCES

For Petitioner: Angela Townsend

200 Seven Oaks Road -22A

Durham, NC 27704

For Respondent: Thomas H. Moore

Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh NC 27602

ISSUES

1. Did Respondent have just cause to terminating Petitioner from employment for unacceptable personal conduct?

2. Did Respondent discriminate and retaliate against Petitioner, based on her race and gender, when it terminated Petitioner from employment?

WITNESSES

For Petitioner: Self

Dorine Harris

For Respondent:

Petitioner

Chip Owens, former correctional sergeant at Polk Correctional Institution Dorine Harris, a correctional sergeant at Polk Correctional Institution

Jonathan Pulley, a correctional officer at Polk Correctional Institution Kenneth Addington, a correctional lieutenant at Polk Correctional Institution Dennis Rowland, Polk Correctional Institution Administrator

EXHIBITS ADMITTED INTO EVIDENCE

For Petitioner: None

For Respondent: 3 – 16, 18, 24 – 28, 34, 35, 36A, 36B, 36C

FINDINGS OF FACT

1. Petitioner was first employed in June 2004 by Respondent’s Division of Prisons as a correctional officer, and was stationed at Polk Correction Institution (hereinafter “Polk”) in Butner, North Carolina. (R. Exs. 4, 24; Tr. pp. 74-76).

2. As a correctional officer, Petitioner was responsible for the 1,012 inmates. (Tr. pp. 74-76). Petitioner’s specific post assignments at the facility varied, according to Polk management’s assignments. (Tr. pp. 74-76).

3. In June 2004, Respondent conducted its initial training of Petitioner, and advised Petitioner of her official job duties as a correctional officer. It also advised Petitioner of Respondent’s various policies, including Respondent’s policies regarding use of force against inmates, and reporting incidents where force has been used against an inmate. (R. Exs. 4, 34, 35; Tr. pp. 74-80).

4. Petitioner also underwent specialized training in using pepper spray. (R. Ex. 34; Tr. pp. 20-26, pp. 74-80, pp.195-197). As part of this training, Petitioner was subjected to pepper spray herself. (R. Ex. 34; Tr. pp. 20-26, pp. 74-80, pp. 195-197). She was taught that an inmate “will be given an immediate opportunity to flush his or her eyes with water ....” after being subdued by pepper spray. (R. Ex. 34; Tr. pp. 20-26, pp. 74-80, pp. 195-197).

5. Respondent issued a can of pepper spray to Petitioner, and advised Petitioner that she was required to carry the pepper spray on her person while working. (Tr. pp. 20-26, pp. 77-78).

6. On May 21 2006, Petitioner was assigned to work the first shift, and was stationed in the Single Cell 1 dormitory for that shift. First shift lasts from 6 a.m. to 6 p.m. Single Cell 1 is an area which houses individual inmates in single cells. (R. Exs. 4, 11, 12; pp 42-44, pp. 78-80).

7. On May 21, 2006, Lavaruse Thompson, an inmate, was housed in cell A203 on the second floor of the Single Cell 1 dormitory. Some time before 3 pm that day, Thompson began verbally harassing Petitioner by making profane, obscene, and derogatory comments about her. (R Exs. 4, 11, 12; pp. 42-44, pp. 8-80).

8. At approximately 3 p.m. on May 21, 2006, Petitioner talked with Correctional Sergeant Chip Owens. That day, Owens was assigned as the building sergeant for Single Cell 1 dormitory. Petitioner reported the remarks made by inmate Thompson to Owens. (R. Exs. 4, 11, 12, 27; Tr. pp. 26-29, 42-44, pp. 81-82). Petitioner told Sergeant Owens that if inmate Thompson made any other harassing remarks toward her, she was going to use pepper spray on him.

9. Sergeant Owens reminded Petitioner about Respondent’s Use of Force policy, and when such policy allowed an employee to use force on an inmate. (R. Exs. 4, 11, 12, 27; Tr. pp. 26-29, 42-44, pp. 81-82). Specifically, Sergeant Owens told the Petitioner that the Use of Force policy prohibited her from using pepper spray on an inmate as punishment for verbal harassment. (R. Exs. 4, 11, 12, 27; Tr. pp. 26-29, 42-44, pp. 81-82). Sergeant Owens also suggested that the Petitioner should use the inmate disciplinary process to address her concerns by completing a DC-138B complaint form, so inmate Thompson could be disciplined for his behavior. (R. Exs. 4, 11, 12, 27; Tr. pp. 26-29, 42-44, pp. 81-82).

10. The control station for Single Cell 1 allows officers who are in the control station, a clear view of the exterior of the cells in this dormitory. (R. Exs. 36a, 36b, 36c; Tr. pp. 151-158, pp. 236-237).

11. On May 21, 2006, correctional Officer Dorine Harris was working in the control station or booth for Single Cell 1. At approximately 4:42 p.m., Petitioner walked to the control booth, and spoke with Dorine Harris. (R. Exs. 4, 11, 12, 14, 25, 26; Tr. pp. 78-82, pp. 151-152). Petitioner told Officer Harris that she had forgotten to bring her pepper spray to work with her that day, and asked if she could borrow Harris’ pepper spray. (R. Exs. 4, 11, 12, 14, 25, 26; Tr. pp. 78-82, pp. 151-152). Officer Harris stated that Petitioner could, and handed Petitioner her NCDOC-issued pepper spray. (R. Exs. 4, 11, 12, 14, 25, 26; Tr. pp. 78-82, pp. 151-152).

12. Petitioner left the control booth. She handed out and retrieved food trays to the inmates confined in Single Cell 1. (R. Exs. 4, 11, 12, 14, 25, 26; Tr. pp. 78-82, pp. 151-152).

13. A few minutes after loaning Petitioner with her pepper spray, Officer Harris observed Petitioner approach inmate Thompson’s cell, pull out the pepper spray can, and discharge it into inmate Thompson’s cell through the food tray door. (R. Exs. 4, 11, 12, 14, 25, 26; Tr. pp. 154-158).

14. Officer Harris saw Petitioner move away from inmate Thompson’s cell,and continue passing out and/or retrieving food trays from other inmate cells for a few moments. (R. Exs. 4, 11, 12, 14, 25, 26; Tr. pp. 154-158).

15. Next, Officer Harris saw Petitioner walk back to inmate Thompson’s cell, reach through the food tray door, and discharge the pepper spray again. (R. Exs. 4, 11, 12, 14, 25, 26; Tr. pp. 154-158). Petitioner walked away from inmate Thompson’s cell, and continued passing out and/or retrieving food trays from other inmate cells. (R. Exs. 4, 11, 12, 14, 25, 26; Tr. pp. 154-158).

16. Officer Harris did not see inmate Thompson attack or attempt to attack the Petitioner during either Petitioner’s first or second use of pepper spray. (R. Exs. 4, 11, 12, 14, 25, 26; Tr. pp. 151-158). If inmate Thompson had attempted to attack Petitioner from his cell, Officer Harris would have been able to see such an attack, since she was standing on the side of the control booth facing the exterior of inmate Thompson’s cell, during the two occasions that Petitioner used pepper spray on inmate Thompson. (R. Exs. 4, 11, 12, 14, 25, 26, 36a, 36b, 36c; Tr. pp. 154-158).

17. The other officer assigned to the control booth was in the restroom during this time, and did not witness either incident where Petitioner used pepper spray on inmate Thompson. (Tr. pp.153-154).

18. Petitioner did not immediately report her use of pepper spray to anyone in her chain of command by using her two-way radio. (R. Exs. 4, 11, 12; Tr. pp. 29-40, pp. 156-157). If Petitioner had used her radio, her communication would have been heard by Sergeant Owens, Officer Harris, and others working at Polk as they also held radios. (R. Exs. 4, 11, 12; Tr. pp. 29-40, pp. 156-157).

19. Officer Harris promptly reported Petitioner’s use of pepper spray to Sergeant Owens by radio communication. (R. Exs. 4, 11, 12, 14, 25, 26, 27; Tr. pp. 29-30, pp. 157-158). When Owens received Harris’ report, he was returning to Single Cell 1 from the prison kitchen. (R. Exs. 4, 11, 12, 14, 25, 26, 27; Tr. pp. 29-30, pp. 157-158).

20. Sergeant Owens immediately went to inmate Thompson’s cell and found inmate Thompson lying on the floor. (R. Exs 4, 11, 12, 27; Tr. pp. 29-34, pp. 42-44). Sergeant Owens also noticed a heavy odor of pepper spray in the air. (R. Exs 4, 11, 12, 27; Tr. pp. 29-34, pp. 42-44). He did not find any shirt buttons, food items, or a food tray on the floor inside or outside inmate Thompson’s cell. (R. Exs. 4, 11, 12, 27; Tr. pp. 29-34, pp. 42-44).

21. Correctional Officers Jonathan Pulley and Donovan Smith also arrived at Thompson’s cell, because they heard Harris’ radio report. With help from Pulley and Smith, Sergeant Owens removed inmate Thompson from his cell, and carried him to a medical area for pepper spray decontamination. (R. Exs. 4, 11, 12, 15, 16, 27; Tr. pp. 29-34, pp. 183-188).

22. Petitioner did not assist removing inmate Thompson from the cell. (R Exs. 4, 11, 12, 27; Tr. pp. 29-34, pp. 42-44). Sergeant Owens noticed that when he and Officers Pulley and Smith removed inmate Thompson from his cell, Petitioner was working with food trays in another area of Single Cell 1. (R. Exs 4, 11, 12, 27; Tr. pp. 29-34, pp. 42-44).

23. Shortly after using pepper spray on inmate Thompson, Petitioner walked to the Single Cell 1 control booth, and returned the can of pepper spray to Officer Harris. (R Exs. 4, 11, 12, 14, 25, 26; Tr. pp. 159-168). Petitioner was laughing. She commented that she had used her pepper spray on inmate Thompson, because he had called her a “bitch.” (R. Exs. 4, 11, 12, 14, 25, 26; Tr. pp.159-168). Officer Harris noticed that Petitioner’s correctional officer uniform was neat and intact, and her uniform shirt was not missing any buttons. Officer Harris noticed that the can of pepper spray, which was full when she provided it to the Petitioner, was almost empty. (R Exs. 4, 11, 12, 14, 25, 26; Tr pp. 159-168).

24. Approximately 22 minutes after he removed inmate Thompson from his cell for pepper spray decontamination, Sergeant Owens encountered Petitioner. (R. Exs. 4, 11, 12, 27; Tr. pp. 40-41). Petitioner still had not reported her use of pepper spray on inmate Thompson. (R. Exs. 4, 11, 12, 27; Tr. pp. 40-41). Sergeant Owens spoke with the Petitioner, who seemed unconcerned about the situation. (R. Exs. 4, 11, 12, 27; Tr pp. 40-41). He asked her what had occurred, and why she had not reported the incident as policy requires. (R. Ex. 4, 11, 12, 27; Tr. pp. 40-41). Petitioner did not respond to Sergeant Owens’ questions in any detail, but kept her answers vague. (R. Exs. 4, 11, 12, 27; Tr. pp. 40-41). During the conversation, Sergeant Owens noticed that Petitioner’s uniform was neat and intact, with no buttons missing from her uniform shirt. (R. Exs 4, 11, 12, 27; Tr. pp. 40-41).

25. Approximately 20 minutes after talking with Petitioner about her using pepper spray on inmate Thompson, Sergeant Owens saw Petitioner as she was exiting a toilet facility. (R. Exs 4, 11, 12, 27; Tr. pp. 40-45). Sergeant Owens noticed that Petitioner’s uniform shirt was torn, and at least one button was missing from her shirt. (R. Exs. 4, 11, 12, 27; Tr. pp. 40-45). Petitioner told Sergeant Owens, “Look what the inmate did. He grabbed me through the tray flap and he grabbed my shirt and pulled my shirt, tore my shirt through the tray flap.” (R. Exs. 4, 11, 12, 27; Tr. pp. 40-45).

26. Around the same time, Officer Harris saw Petitioner again, and noticed that Petitioner’s uniform shirt was in disarray, with one or more buttons missing. (R. Exs. 4, 11, 12, 14, 25, 26; Tr. pp. 160-180). It had been approximately 30 minutes since Petitioner had returned the pepper spray can to Officer Harris. (R. Exs. 4, 11, 12, 14, 25, 26; Tr. pp. 160-180).

27. At some point, Sergeant Owens notified Lieutenant Kenneth Addington about the pepper-spraying incident involving Petitioner. Lieutenant Addington ordered Sergeant Benjamin Lea to conduct a use of force investigation. (Tr. pp. 198-201).

28. Sergeant Lea interviewed and obtained a written statement from the Petitioner before she left work on May 21, 2006. (R. Exs. 12, 12, 14, 15, 16, 18; Tr. pp. 198-201). In her written statement, Petitioner stated:

On May 21, 2006 ... while receiving food trays from Inmate Lavaruse Thompson ... [he] pulled my arm and shirt very fast hard through the trap door while spitting on me and would not let go of my shirt. In defense, I Officer Townsend sprayed two short burst of OC pepper spray inside inmate Lavaruse Thompson ...trap door and cell to prevent further assault. Inmate Lavaruse Thompson damaged shirt from the State by dislocating two buttons off uniform shirt. I Officer Townsend when safe radioed Bdg. Sgt.

(R. Ex. 13).

29. During his investigation, Sergeant Lea also interviewed and obtained written statements from Sergeant Owens, Officer Harris, Officer Pulley, Officer Donovan Smith, Officer B. Canales, and inmates Thompson, Roderius Bruton, Dustin Stackhouse, Z. Davis and C. Richardson. (R. Exs. 12, 13, 14, 15, 16, 18; Tr. pp. 198-201). None of the other witnesses interviewed, corroborated Petitioner’s version of events. (R. Ex. 12; Tr. pp. 198-201).

30. Sergeant Lea completed a report about the incident between Petitioner and inmate Thompson. Lea noted the evidence indicated, “[i]nmate Thompson clearly did not assault” Petitioner. (R. Ex. 12; Tr. pp. 198-201). He recommended that Respondent conduct an additional investigation to determine whether Respondent should take disciplinary action against Petitioner. (R. Ex. 12; Tr. pp. 198-201).

31. Polk Superintendent Dennis Rowland reviewed Sergeant Lea’s report, authorized an internal disciplinary investigation be conducted, and assigned Lieutenant Addington to conduct this investigation. (R. Ex. 12, Tr. p. 231).

32. Lieutenant Addington began the disciplinary investigation in early June 2006. (R. Exs. 11, 12, 13, 14, 15, 16, 18, 24, 25, 26, 27, 28, 29, 30, 31; Tr. pp. 202-214). He utilized the statements gathered by Sergeant Lea, but also interviewed and obtained new written statements about the May 21, 2006 incident from Petitioner, Sergeants Owens and Lea, and Officers Harris, Pulley, Canales, and Smith. (R. Exs. 1, 12, 13, 14, 15, 16, 18, 24, 25, 26, 27, 28, 29, 30, 31; Tr. pp. 202-214).

33. In a written statement made June 8, 2006, Petitioner reiterated the version of events outlined in her written statement for the use of force investigation. (R. Ex. 24; Tr. pp. 111-116, pp. 211-214). She also addressed the contentions of Sergeant Owens and Officer Harris. (R. Ex. 24; Tr. pp. 111-116, pp. 211-214). She denied telling Sergeant Owens, before the incident, that she was considering using pepper spray on inmate Thompson. (R. Ex. 24; Tr. pp. 111-116, pp. 211-214). She also denied borrowing pepper spray from Officer Harris. (R. Ex. 24; Tr. pp. 111-116, pp. 211-214).

34. Lieutenant Addington completed his investigation, and issued a report on July 10, 2006 to Captain J.M. Habuda. (R. Ex. 11; Tr. pp. 210-214). In the report, Lieutenant Addington concluded that Petitioner had violated the use of force policy by using pepper spray on inmate Thompson, and by not seeing that Thompson was taken for immediate decontamination. (R. Ex. 11; Tr. pp. 210-214). Lieutenant Addington recommended that Respondent take disciplinary action against Petitioner for her conduct. In his report, Addington noted:

To administer O.C. Pepper spray on an inmate and then just leave him in cell is absolute mistreatment of an inmate. Officer Townsend made no attempt to notify her Sergeant and get him involved so a use of force could be avoided and even worse did not notify her Building Sergeant after the use of O.C. Pepper.

(R. Ex. 11; Tr. pp. 210-214). Lieutenant Addington also noted that:

It is apparent that not only is Officer Townsend ... in serious violation of policy but has been less than honest and forthright in her statements concerning this matter.

(R. Ex. 11; Tr. pp. 210-214).

35. Lieutenant Addington’s investigative report and supporting materials were forwarded to Superintendent Rowland. (R. Ex. 11; Tr. p. 232). After reviewing the report and the witness statements, Superintendent Rowland decided that disciplinary action was warranted. (R. Ex. 11; Tr. p. 232).

36. In a letter dated July 20, 2006, Superintendent Rowland informed Petitioner that he would conduct a pre-disciplinary conference for her on August 2, 2006 in his office at Polk. (R. Ex. 5; Tr. pp. 232-236). Petitioner received this letter on July 24, 2006. (R. Ex. 5; Tr. pp. 232-236).

37. Rowland held the pre-disciplinary conference on August 3, 2006 with Petitioner. (R. Exs. 5, 6, 7, 8, 9; Tr. pp. 233-236). At the conference, Superintendent Rowland presented Petitioner with a memorandum stating that he intended to recommend to his chain of command that Respondent terminate Petitioner from employment for unacceptable personal conduct. Specifically, he found that Petitioner engaged in unacceptable personal conduct by “inappropriate and excessive force against an inmate,” by failing to report her use of force, and by “hindering an internal investigation” by failing to be truthful about what occurred during the May 21, 2006 incident, where she used pepper spray on inmate Thompson. (R. Ex. 7; Tr. pp. 233-236).

38. During the conference, Petitioner reiterated that she used pepper spray only once on inmate Thompson after he had attempted to attack her. (R. Ex. 8, Tr. pp. 233-238). She contended that Officer Harris could not see what happened from the control booth. (R. Ex. 8, Tr. pp. 233-238). She denied borrowing the pepper spray from Officer Harris, and denied telling Sergeant Owens beforehand that she was considering using pepper spray on inmate Thompson. (R. Ex. 8, Tr. pp. 233-238).

39. Petitioner presented Superintendent Rowland with a handwritten statement purportedly from Officer Donovan Smith. At that time, Smith was no longer employed with the NCDOC. In that statement, Smith stated that he and Petitioner placed an inmate, whom he did not identify, in restraints on June 7, 2006 before that inmate was removed from his cell. (R. Ex. 9; Tr. pp. 233-239) Because this statement did not address the May 21, 2006 incident, and whether Petitioner violated the use of force policy, Superintendent Rowland did not view it as exculpatory evidence. (R. Ex. 9; Tr. pp. 233-239).

40. Following the conference, Superintendent Rowland interviewed Officer Harris and Sergeant Owens to determine if their versions of events matched Petitioner’s version. (Tr. pp. 236-237).

41. Rowland also visited the control booth for Single Cell 1 to determine whether Officer Harris had a clear view of the cell where inmate Thompson was housed on May 21, 2006. (Tr. pp. 236-237). Upon inspection, Superintendent Rowland determined that Officer Harris had an unobstructed view of Thompson’s cell on May 21, 2006. (Tr. pp. 236-237).

42. By memorandum dated August 10, 2006, Superintendent Rowland recommended to his immediate supervisor, Division of Prisons Central Region Director George E. Currie, that Respondent terminate Petitioner from employment for unacceptable personal conduct. (R. Ex. 10; Tr. pp. 236-238). Superintendent Rowland viewed Petitioner’s actions on May 21, 2006 as “grossly unacceptable.” (R. Ex. 10; Tr. pp. 236-238). He further stated that “[w]e cannot allow Officers to use ‘use of force’ on inmates based merely on verbal provocation and then to lie about the incident hindering the internal investigation.” (R. Ex. 10; Tr. pp. 236-238).

43. Director Currie subsequently notified Superintendent Rowland that he had approved Rowland’s recommendation to dismiss Petitioner from employment for disciplinary reasons. (R. Ex. 4; Tr. pp. 238-239).

44. By letter dated August 21, 2006, Superintendent Rowland notified Petitioner that Respondent was terminating her employment for unacceptable personal conduct. Specifically, Petitioner using pepper spray on inmate Thompson on May 21, 2006 was unjustified and violated Respondent’s use of force policy. In addition. Petitioner’s failure to report her use of force immediately, so inmate Thompson could be properly treated for pepper spray exposure, also violated Respondent’s policy. R. Ex. 4; Tr. pp. 238-239).

45. Petitioner appealed Rowland’s decision through Respondent’s internal appeal process. On December 18, 2006, an Employee Relations Committee heard Petitioner’s appeal of her dismissal. That Committee recommended that Respondent’s Secretary, Theodis Beck, uphold Petitioner’s dismissal from employment. (R Ex 2)

46. By letter dated January 16, 2007, Respondent notified Petitioner that Respondent’s Secretary was upholding the decision to terminate Petitioner’s employment. (R Ex 2)

47. On March 6, 2007, Petitioner filed a contested case petition with the Office of Administrative Hearings. Petitioner alleged that Respondent lacked “just cause” to terminate her employment for disciplinary purposes, and that Respondent discriminated against her race and gender when it terminated her employment.

48. Respondent’s Division of Prisons has a policy governing employees use of physical force to subdue an inmate. (R. Exs. 4, 11, 12, 35; Tr. pp. 20-22, pp. 195-197). Among other things, the Division of Prisons’ Use of Force policy prevents correctional staff from using force as punishment for an inmate, hitting or otherwise striking a restrained inmate, and using force in response to an inmate’s verbal provocation. (R. Exs. 4, 11, 12, 35; Tr. pp. 20-22, pp. 195-197). The policy states that pepper spray may be used only “[t]o control or deter violent, threatening, or aggressive acting inmates;" or “[t]o defend the officer or a third party from imminent assault.” (R. Exs. 4, 11, 12, 35; Tr. pp. 20-22, pp. 195-197).

49. The Division of Prisons’ policy also requires its employees to immediately report in writing, when an employee has used force to subdue an inmate. The Use of Force Reporting Procedures policy requires each correctional staff member involved in an incident, where force was used against an inmate, to immediately make a comprehensive report about the incident to management of the prison facility housing the inmate. (R. Exs. 4, 11, 12, 35; Tr. pp. 20-22, pp. 195-197).

50. Violation of either the Use of Force policy or the Use of Force Reporting Procedures policy is considered unacceptable personal conduct for which Respondent can take disciplinary action, including dismissal of the employee. (R. Exs. 4, 11, 12, 35; Tr. pp. 20-22, pp. 195-197).

51. At the administrative hearing, Petitioner reiterated her claim that she used pepper spray on inmate Thompson only after he attacked her. (Tr. pp. 83-95). However, that statement was inconsistent with, and contradicted the statements Petitioner gave during the use of force and disciplinary investigations. Petitioner’s statements at hearing were also inconsistent with her statements given at the pre-disciplinary conference where she admitted borrowing the pepper spray from Officer Harris. (Tr. pp. 78-82).

52. At hearing, Petitioner contended that she assisted in removing inmate Thompson from his cell for pepper spray decontamination. Yet, Petitioner did not make such a claim in her statements during the use of force and disciplinary investigations, or at her pre-disciplinary conference. (R. Ex. 3; Tr. pp. 96-99).

53. In addition, Petitioner’s claim that she assisted other officers in removing inmate Thompson from his cell was directly contradicted by Sergeant Owens and Officer Pulley testimony. Owens and Pulleys’ testimony about the decontamination process was consistent with their earlier written statements given during the use of force and disciplinary investigations. (Tr. pp. 29-34, pp. 183-188).

54. Petitioner asserted that her race and gender discrimination claims were premised upon Sergeant Lea’s recommendation, in his use of force report, that Respondent conduct a further investigation of her actions on May 21, 2006 to determine if disciplinary action was appropriate. (Tr. pp. 130-134). In her opinion, Sergeant Lea only recommended further investigation, because Petitioner was an African-American female. (Tr. pp. 130-134). However, she did not present any other evidence at hearing to support her race and/or gender discrimination claims. (Tr. pp. 1-250).

55. Superintendent Rowland was unaware of any dispute between Petitioner and Sergeant Lea when he conducted the pre-disciplinary conference. (Tr. pp. 238-240). According to Superintendent Rowland, Petitioner did not allege, at the August 3, 2006 pre-disciplinary conference, that Sergeant Lea had discriminated against her based on race and/or gender. (Tr. pp. 238-240). Petitioner’s race and/or gender played no role in his decision to recommend that Respondent terminate Petitioner’s employment for her acts and omissions on May 21, 2006 involving inmate Thompson. (Tr. pp. 238-240)

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings, and the Office of Administrative Hearings has subject matter over this case and personal jurisdiction over the parties.

2. Petitioner was a career State employee pursuant to N.C. Gen. Stat. § 126-1.1 at the time of her termination, and thus is subject to the provisions of Chapter 126 of the North Carolina General Statutes.

3. N.C. Gen. Stat. Section 126-35 provides, in part:

No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.

4. N.C. Gen. Stat. § does not define the terms “just cause.” However, the Court of Appeals has stated that the words "just cause" in the context of Chapter 126 are to be given their ordinary meaning. Amanini v. N.C. Dep’t of Human Resources, 114 N.C. App. 668, 678, 443 S.E.2d 114, 120 (1994) (citing Wiggins v. N.C. Dep’t of Human Resources, 105 N.C. App. 302, 306, 413 S.E.2d 3, 5 (1992)). "In Webster’s New International Dictionary, 'cause' is defined as a 'good or adequate reason,' and 'just' as 'reasonable' or 'having a basis in fact.' See Webster’s New International Dictionary 356, 1228 (3d ed. 1968)." Amanini, 114 N.C. App. at 678, 443 S.E.2d at 120.

5. 25 N.C.A.C. 1J.0608-0612 provides that an employer may dismiss a State employee for a single incident of unacceptable personal conduct without any prior warning or other disciplinary action against the employee. The “willful violation of known or written work rules” is one form of conduct that constitutes unacceptable personal conduct. Id.

6. Respondent has its own Personnel Manual, which outlines specific types of conduct constituting unacceptable personal conduct for which an employee can be disciplined. (R. Ex. 4; Tr. pp. 230-239).

7. Respondent’s Personnel Manual states that violation of the department’s policy barring personal dealings with criminal offenders constitutes unacceptable personal conduct for which an employee can be disciplined. (R. Ex. 4; Tr. pp. 230-239).

8. Respondent’s Personnel Manual also states that violation of a known or written work constitutes unacceptable personal conduct for which an employee can be disciplined. (R. Ex. 4; Tr. pp. 230-239).

9. Pursuant to N.C. Gen. Stat. § 126-35(d) (2006), Respondent bears the burden of proving by a preponderance of the evidence that it had just cause to termination Petitioner’s employment.

10. In this case, Respondent met its burden of proof, and established by a preponderance of the evidence that it had just cause to terminate Petitioner from employment for her unacceptable personal conduct on May 21, 2006, when she used pepper spray on inmate Thompson in retaliation for Thompson using profane, obscene, and harassing language toward her. (R. Exs. 4, 11, 12, 13, 14, 24, 25, 26, 27; Tr. pp. 18-239). Petitioner’s use of force violated Respondent’s Use of Force policy and, as such, constituted a willful violation of a known, written work rule. (R. Exs. 4, 11, 12, 13, 14, 24, 25, 26, 27; Tr. pp. 18-239).

11. Respondent also proved by a preponderance of the evidence that it had just cause to terminate Petitioner’s employment for her unacceptable personal conduct on May 21, 2006 incident, where she failed to report her use of force against inmate Thompson in violation of Respondent’s Use of Force Reporting policy. (R. Exs. 4, 11, 12, 13, 14, 24, 25, 26, 27; Tr. pp. 18-239). Petitioner’s failure to report her use of force violated the Respondent’s Use of Force Reporting policy, and, as such, constituted a willful violation of a known, written work rule. (R. Exs. 4, 11, 12, 13, 14, 24, 25, 26, 27; Tr. pp. 18-239).

12. Pursuant to N.C Gen. Stat. § 126-36 (2006), a State employee may challenge any employment action she believes was motivated by illegal discrimination on the part of the employing State agency. Under N.C. Gen. Stat. § 126-36, the employee carries the initial burden of proof of establishing by a preponderance of the evidence, a prima facie case of discrimination. If the employee has presents a prima facie case of discrimination, the burden shifts to the employer to articulate some legitimate, non-discriminatory reason for the employee’s rejection. If the employer has met its burden, then the employee is given the opportunity to show that the state reasons for the disciplinary action are a mere pretext for discrimination. Area Mental Health v. Speed, 69 N.C. App. 247, 253-254, 317 S.E.2d 22, 25, cert. denied, 312 N.C. 81, 321 S.E.2d 893 (1984).

13. In this case, Petitioner failed to establish a prima facie case of either race or gender discrimination. (Tr. pp. 18-239). Even if the Petitioner had established a prima facie case of either type of discrimination, Respondent proved by a preponderance of the evidence that it had legitimate reasons for terminating Petitioner from employment for her unacceptable personal conduct on May 21, 2006. (Tr. pp. 18-239).

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the State Personnel Commission should AFFIRM Respondent’s decision to terminate Petitioner from employment for unacceptable personal conduct.

NOTICE AND ORDER

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 is the 14th day of January, 2008.

_________________________________

Melissa Owens Lassiter

Administrative Law Judge

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