STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF UNION 09 OSP 5262

______________________________________________________________________________

Purnell Sowell, )

Petitioner, )

v. ) DECISION

NC Dept of Transportation, Div of Motor )

Vehicles, )

Respondent. )

______________________________________________________________________________

THIS MATTER came on for hearing before the Honorable Selina M. Brooks, Administrative Law Judge, July 8-9, 2010 in Charlotte, North Carolina. After considering the allegations in the Petition, the testimony of the witnesses, and the documentary evidence and exhibits admitted, the undersigned makes the following DECISION:

APPEARANCES

For the Petitioner:

John W. Roebuck, Jr., Attorney at Law

Daniel & Roebuck, PLLC

501 East Broad Avenue

Rockingham, North Carolina 28379

For the Respondent:

Kathryne E. (Beth) Hathcock, Assistant Attorney General

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699

ISSUES

1. Was Petitioner denied a promotion on account of his race?

2. Was Petitioner denied a promotion in violation of a previously executed settlement agreement?

EXHIBITS

Petitioner’s Exhibit 1.

Respondent’s Exhibits 1-14.

WITNESSES

Petitioner served as his only witness.

Respondent called as witnesses License and Theft Bureau Deputy

Director Jack Coltrane, DMV Human Resources Manager Dawn Godwin,

License and Theft Bureau Supervisor Stephen Lamm, Assistant

Supervisor Jesse Allen and Inspector Sharon Wall.

FINDINGS OF FACT

1. The parties stipulated to adequate notice of the hearings.

2. Petitioner was terminated from employment with Respondent on March 11, 2008. Prior to his termination, Petitioner held the position of Law Enforcement Manager/Captain of District VI (Charlotte).

3. Petitioner filed an action with this Court to contest his termination. The matter was settled in late February 2009. See Petitioner’s Exhibit 1. Pursuant to the settlement agreement, Petitioner was re-hired by the License and Theft Bureau and demoted to the entry-level position of Inspector. Additionally, the settlement agreement indicated that Petitioner was to be equally considered for all promotions for which he applied.

4. On March 10, 2009, Petitioner applied for the position of Law Enforcement Manager/Captain of District VI (Charlotte). This was the same position that Petitioner held prior to his termination. See Respondent’s Exhibits 1 and 2.

5. Petitioner was among five applicants who were considered “most qualified” for the Captain’s position.

6. Management of the License and Theft Bureau was responsible for assigning three employees to serve on the interview panel for the position in question. To ensure a racially and geographically neutral selection process, management appointed Supervisor Stephen Lamm (Caucasian male from Raleigh Headquarters), Assistant Supervisor Jesse Allen (African-American male from Greenville) and Inspector Sharon Wall (Caucasian female from Mt. Airy) to serve on the interview panel.

7. It was not uncommon for License and Theft Bureau management to appoint lower-ranking officers to interview panels for managerial positions. The practice has been utilized in the past and continues to be implemented in an attempt to guarantee diversity in the hiring process.

8. The Division of Motor Vehicles routinely selects employees from cross-sections of the agency to serve on selection committees. This practice is meant to provide unbiased perspectives and racial and gender neutrality throughout the hiring process.

9. When questioned about the propriety of allowing employees from an unrelated position within the agency to serve on interview panels, Human Resources Manager Dawn Godwin explained that the panel members’ unfamiliarity with the job make the applicant’s ability to articulate his or her qualifications critically important. Specifically, Ms. Godwin indicated that because the panel members have no practical knowledge of the position for which they are interviewing, they are the best audience to evaluate the applicants’ ability to sell themselves as the best fit for the position.

10. Petitioner was interviewed for the Captain’s position on March 17, 2009. However, Petitioner was denied the promotion and the position was awarded to Charles Irvin.

11. Prior to the interview process in the instant case, Assistant Supervisor Allen was unaware of the Petitioner’s settlement agreement. While Supervisor Lamm and Inspector Wall were aware that Petitioner had been allowed to come back to work pursuant to a settlement agreement, they had not seen the settlement agreement and were not aware of its details prior to the interview process in the instant case. None of the three panel members considered the settlement agreement in deciding to recommend Mr. Irvin for the promotion.

12. Neither Supervisor Lamm, Assistant Supervisor Allen nor Inspector Wall considered Petitioner’s race in making the determination to recommend Mr. Irvin for the promotion.

13. Supervisor Lamm, Assistant Supervisor Allen and Inspector Wall indicated that Mr. Irvin gave very thorough, concise answers to the interview questions and that Mr. Irvin answered each question directly and appropriately. In contrast, the panel members testified that Petitioner’s responses were not as in-depth as Mr. Irvin’s and that Petitioner generally did not interview as well as Mr. Irvin.

14. Inspector Wall pointed out that during his interview, Petitioner consistently reminded the panel that he had held the Captain’s position before. Petitioner also indicated that his goal for the agency was to “get in his five years and retire,” whereas Mr. Irvin’s goal was to see the License and Theft Bureau grow, remain stable and that the agency be fully staffed. See Respondent’s Exhibits 6-7, 11-14.

15. The panel members were not forced to recommend Mr. Irvin as the successful candidate for the Captain’s position. After discussing the applicant interviews, the panel members unanimously agreed that Mr. Irvin was the best choice for the promotion. See Respondent’s Exhibit 10.

16. There is no evidence that Petitioner was denied the promotion because of his race or in violation of the previously executed settlement agreement.

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings on a Petition pursuant to Chapter 126 of the General Statutes, and the Office of Administrative Hearings has jurisdiction over both the parties and the subject matter as such.

2. At the time he was denied the instant promotion, Petitioner was a career State employee subject to the provisions of the State Personnel Act, N.C.G.S. § 126-1 et seq. Pursuant to N.C.G.S. § 126-16 and 126-36, it is unlawful for an employer to deny an employee subject to the State Personnel Act a promotion based upon the employee’s race.

3. Pursuant to N.C. Gen. Stat. § 126-36, a State employee may challenge an employment action he believes was motivated by illegal discrimination on the part of the employing State agency. “[T]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all time with the plaintiff.” N.C. Dep’t of Corr. v. Gibson, 308 N.C. 131, 138, 301 S.E.2d 78, 83 (1983) (quoting Texas Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 215 (1981)).

4. The Supreme Court of North Carolina has adopted the standard used by the United States Supreme Court in proving discrimination: 1) the claimant carries the initial burden of establishing a prima facie case of discrimination; 2) the burden shifts to the employer to articulate some legitimate nondiscriminatory reason for the applicant’s rejection; and 3) if a legitimate nondiscriminatory reason for rejection has been articulated, the claimant has the opportunity to show that the stated reason for rejection was, in fact, a pretext for discrimination. Gordon v. NC DOC, 173 N.C. App. 22, 618 S.E.2d 280 (2005).

5. Petitioner satisfied his initial burden of establishing a prima facie case of discrimination by showing that a) as an African-American, he is a member of a protected group; b) he was qualified for a promotion; c) he was passed over for the promotion; and d) the person receiving the promotion was not a member of the protected racial class. Enoch v. Alamance County DSS, 164 N.C. App. 233, 242, 595 S.E.2d 744, 752 (2004).

6. Even though Petitioner established a prima facie case of discrimination, Respondent sufficiently articulated legitimate, nondiscriminatory reasons for Petitioner’s rejection. Specifically:

a. Panel Members Lamm, Allen and Wall indicated that Mr. Irvin gave very thorough, concise answers to the interview questions and that Mr. Irvin answered each question directly and appropriately. In contrast, the panel members testified that Petitioner’s responses were not as in-depth as Mr. Irvin’s and that Petitioner generally did not interview as well as Mr. Irvin.

b. Petitioner indicated that his goal for the agency was to “get in his five years and retire,” whereas Mr. Irvin’s goal was to see the License and Theft Bureau grow, remain stable and that the agency be fully staffed. See Respondent’s Exhibits 6-7, 11-14.

c. Mr. Irvin has been employed with the License and Theft Bureau slightly longer than Petitioner. Mr. Irvin was hired as an Inspector in September 1992 and Petitioner was hired as an Inspector four months later. See Respondent’s Exhibits 2, 5.

d. At the time of his promotion, Mr. Irvin had over twenty-five years of experience with the License and Theft Bureau. Mr. Irvin had been Assistant Supervisor in District VI (Charlotte) for over five years and had been Acting Supervisor in District VI for one year prior to the instant promotion. See Respondent’s Exhibits 5, 10.

e. Each of the panel members was impressed with how Mr. Irvin managed District VI from March 2008 until his promotion on March 2009.

f. Petitioner alleged in his Petition that “the committee in making its decision did not take the specific promotion written test results into consideration.” See Attachment to Petition for A Contested Case Hearing. However, Mr. Irvin scored a 90% on the Supervisor Examination and the Petitioner scored a 45%.

g. The panel members did not consider Petitioner’s race or the settlement agreement in deciding to recommend Mr. Irvin for the promotion to District VI Supervisor. In fact, the panel members were wholly unfamiliar with the details of the settlement agreement during the interview and selection process.

h. Each of the three panel members indicated that they would have chosen Petitioner for the promotion had he been the best qualified candidate.

7. The North Carolina State Personnel Commission recognizes that “a specific quantity of formal education or number of years experience does not always guarantee possession of the identified skills, knowledge, and abilities for every position in a class. Qualifications necessary to perform successfully may be attained in a variety of combinations. Management is responsible for determining specific job-related qualifications that are in addition to minimum standards.” Respondent’s Exhibit 4.

8. The North Carolina Court of Appeals cautions, “To hold that [a Petitioner’s] … superior experience [or education] over the other applicants is determinative and absolute would have the effect of subverting otherwise genuine and thorough application processes seeking the best applicant for a particular position. Fairness to both applicants for promotions and employers requires more than a comparison of objective factors.” Enoch v. Alamance County DSS, 164 N.C. App. 233, 242, 595 S.E.2d 744, 752 (2004).

9. Additionally, an employer is “relatively free to value experience among the applicants as it sees fit in light of the skills required by the position to be filled. This freedom is of intrinsic value to the hiring process and business judgment of decision makers.” Id.

10. Petitioner’s contention that he was better qualified for the promotion to Captain simply because he had held the position before is without merit. As set out above, an employer is entitled to make its own policy and business judgment and “the trier of fact is not at liberty to review the soundness or reasonableness of an employer’s business judgment.” Id.

11. Therefore, Respondent has met its burden of proof and established by substantial evidence in the record that it had legitimate and nondiscriminatory reasons for selecting another qualified candidate for the Captain’s position.

12. After the Respondent articulated legitimate and nondiscriminatory reasons for denying promotions to Petitioner, Petitioner was given the opportunity to show that the stated reason for rejection was, in fact, a pretext for discrimination. “In order to prove that a reason for an employer’s action is a pretext for discrimination, an employee must prove ‘both that the reason was false, and that discrimination was the real reason.’” N.C. Dep’t of Crime Control & Pub. Safety v. Greene, 172 N.C. App. 530, 539-540, 616 S.E. 2d 594, 601 (2005) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 422 (1993)).

13. Petitioner failed to show that Respondent’s stated reason for rejection was a pretext for discrimination. Specifically, Petitioner was unable to show that he was, in fact, the best qualified candidate for the Captain’s position.

14. Petitioner failed to prove that he was intentionally discriminated against by the License and Theft Bureau based on his race or in violation of the previously executed settlement agreement.

On the basis of the above-noted Findings of Fact and Conclusions of Law, the Undersigned makes the following:

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, Respondent articulated legitimate, non-discriminatory reasons for denying the promotion to Petitioner. Additionally, Petitioner had not met his burden of proof showing that Respondent’s stated reason for rejection was, in fact, a pretext for discrimination. Accordingly, Petitioner failed to prove racial discrimination.

NOTICE

Before the agency makes the FINAL DECISION, it is required by N.C.G.S. § 150B-36(a) to give each party an opportunity to file exceptions to this PROPOSED DECISION, and to present written arguments to those in the agency who will make the final decision.

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’ attorneys of record.

This the 30th day of August, 2010.

_________/s/________________

The Honorable Selina M. Brooks

Administrative Law Judge

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