STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 10 OSP 9415

_____________________________________________________________________________

DEWAYNE JOHNSON,

Petitioner,

v.

NORTH CAROLINA DEPARTMENT

OF CORRECTION,

Respondent.

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DECISION

_____________________________________________________________________________

On August 18 and 19, 2011, Administrative Law Judge Melissa Owens Lassiter, heard this contested case in Raleigh, North Carolina. On October 3, 2011, the undersigned issued an Order upholding Respondent’s decision to terminate Petitioner from employment for engaging in unacceptable personal conduct, and ordered Respondent to file a proposed Decision to that effect on or before October 28, 2011. On November 22, 2011, Respondent filed its proposed Decision with the Office of Administrative Hearings.

APPEARANCES

For Petitioner: Charles Monteith, Monteith & Rice, PLLC, 309 W. Millbrook Road, Suite 141, Raleigh, North Carolina 27609

For Respondent: Terence D. Friedman, Assistant Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602

WITNESSES

For Petitioner: Petitioner

For Respondent: Ronald Bellamy, Min Cho, Anna Ibarra, Petitioner, Charles Paylin, Anthony Perry, Ronald Perry, Charles Wilkie, Tracy Perry

EXHIBITS ADMITTED INTO EVIDENCE

For Petitioner: None

For Respondent: Exhibits 1 -21

ISSUES

1. Does the Office of Administrative Hearings have subject matter jurisdiction to conduct an administrative hearing for this contested case?

2. Did Respondent have just cause to terminate Petitioner from employment for engaging in unacceptable personal conduct?

FINDINGS OF FACT

Background and Procedural Facts

1. In February 2008, Petitioner began working for Respondent as a correctional officer at its Wake Correctional Center (“Wake Correctional”), and held that position for over two years.

2. On March 17, 2010, Petitioner received notice that Respondent would hold a pre-disciplinary conference on March 19, 2010 to provide Petitioner an opportunity to respond to allegations that Petitioner engaged in unacceptable personal conduct by failing to report that he had been charged with misdemeanor larceny. On March 28, 2010, Petitioner’s supervisor, Anthony Perry, conducted a pre-disciplinary conference with Petitioner. Petitioner submitted a written statement to Mr. Perry at the conference.

3. By letter dated April 19, 2010, Mr. Perry, as Acting Superintendent III, notified Petitioner that Petitioner’s actions, resulting in Petitioner’s arrest for misdemeanor larceny, “constitute unacceptable personal conduct sufficient alone to warrant your dismissal.”

4. On April 21, 2010, Petitioner appealed his dismissal by filing an internal grievance with Respondent, and requested mediation. By letter dated May 17, 2010, Respondent notified Petitioner that a mediation would be held at 9:30 am on June 2, 2010. On May 20, 2010, Petitioner received Respondent’s Notice of Mediation. However, Petitioner was unable to attend the mediation as he was incarcerated from May 21, 2010 until June 19, 2010 for charges unrelated to this case.

5. On October 12, 2010, Petitioner requested his mediation be rescheduled. By letter dated October 12, 2010, Respondent’s Mediation Intake Coordinator, Tracy S. Perry, denied Petitioner’s request to reschedule the June 2, 2010 mediation, as Petitioner failed to appear at the mediation, and failed to notify Respondent that he needed to reschedule the mediation. In that letter, Ms. Perry also advised Petitioner that he had no further appeal rights in this matter, and that his file was considered closed.

6. On December 22, 2010, Petitioner filed a petition for a contested case with the Office of Administrative Hearings appealing his dismissal from employment, and alleging that Respondent wrongfully discharged him from employment without just cause.

Petitioner’s Misdemeanor Larceny Charge

7. Since 2008, Beauty World, a beauty supply store, has been located on S. Wilmington St. in Raleigh, North Carolina. Transcript (“Tr.”) at 8. Ms. Min Cho works at the cash register, and works in management at that store. Previously, Beauty World was located on Tryon Rd. in Raleigh. Id. at 9.

8. As confirmed by Ms. Cho, and admitted by Petitioner, Petitioner had been a customer at both Beauty World locations. Id. at 9, 12, 177. On one occasion at the Tryon Rd. location, Cho noticed that six bottles of body oil were missing from the store immediately after Petitioner had visited the store. Cho deduced that Petitioner had shoplifted them, but did not call the police to report the incident. Cho did not call the police, in part, because Petitioner had already left the store, and Ms. Cho did not know Petitioner’s identity. Id. at 9-12, 27.

9. On February 2, 2010, Ms. Cho was working at the Beauty World location on S. Wilmington St. when Petitioner entered the store. Tr. pp. 12-13, 176. Ms. Cho identified R. Ex. 1 as two video files (“First and Second Videos”) recorded by Beauty World’s in-store camera on February 2, 2010, of Petitioner in the store. At hearing, Petitioner admitted that he appeared in these videos. Id. at 13, 178.

10. The parties and the undersigned watched the videos during court while Ms. Cho and Petitioner commented on the videos.

a. The First Video showed Petitioner bending down in front of a display stand in the store. R. Ex. 1. Petitioner picked up something from the display stand with his right hand, transferred that item to his left hand, and placed the item into his left jacket pocket. (See R. Ex. 1; see also Tr. at 14-16) The First Video also showed Ms. Cho standing at the end of the aisle while Petitioner picked up this item. R. Ex. 1. Ms. Cho observed Petitioner pick up a bottle of body oil. Tr. at 30-31.

b. Petitioner straightened himself to a standing position, and asked Ms. Cho whether the store stocked a certain type of body oil. R. Ex. 1; Tr. pp. 17, 32. At hearing, Ms. Cho and Petitioner confirmed that Petitioner stood and asked Ms. Cho a question.

After Petitioner addressed Ms. Cho, Petitioner bent down again, toward the same display stand, and picked up another item from the display stand with his right hand. Petitioner placed that item into his right jacket pocket. See R. Ex. 1; see also Tr. pp.18-19. From her vantage point in the store, Ms. Cho personally observed Petitioner pick up bottles of body oil. Tr. pp. at 18, 30-31. Petitioner stood up, and walked down the store aisle toward the store’s cash register. R. Ex. 1.

At trial, Petitioner admitted that he bent down in front of a display containing bottles of body oil. Id. at 15, 178. However, he denied that he picked up anything with his right hand, shifted anything into his left hand, and placed anything into his jacket pocket. Id. at 178-179, 185-87, 190. Petitioner even denied that the First Video, which clearly showed Petitioner’s hand extended toward the display stand, in fact showed any such thing. Id. at 179.

At trial, Petitioner admitted that the First Video showed him bend down again in front of the display stand containing body oil. Petitioner denied that he picked up anything with his right hand, or placed anything into his right jacket pocket. Tr. pp. 193-97.

A separate in-store camera at Beauty World showed a continuation of the events depicted in the First Video. The Second Video showed Petitioner approaching, and then stopping at the cash register. R. Ex. 2. Ms. Cho approached the cash register. Petitioner reached into his right front pants pocket, and removed money and paper. Id.; at 199. Petitioner asked Ms. Cho whether Beauty World stocked a particular brand of body oil. Petitioner wrote down the name of the oil on a piece of paper. Tr. pp. 21-22, 204. The Second Video showed Petitioner place the money and paper back into his right front pants pocket. R. Ex. 1. At no point does the Second Video show Petitioner reaching into his jacket pockets to remove the items Petitioner had placed into those pockets during the First Video. Id. Petitioner then leaves the store. R. Ex. 1.

After Petitioner left Beauty World, Ms. Cho examined the display stand Petitioner had bent down in front of to determine whether any bottles of body oil were missing from the display stand. Ms. Cho observed that three or four bottles were missing from the subject display stand. Tr. pp. 25, 34, 38. Ms. Cho reviewed the video of Petitioner with a co-worker, Jung Yoon. Id. at 37. Ms. Cho did not call the police to report the theft, in part, because Petitioner had already left the store, and Ms. Cho still did not know Petitioner’s identity. Id. at 25.

At hearing, Petitioner admitted that he visited Beauty World at the S. Wilmington Street location on February 14, 2010. Tr. p. 210. After Petitioner left the store, Mr. Yoon, an employee of Beauty World, telephoned Raleigh Police Officer Charles Wilkie. Id. at 41-42. Shortly thereafter, Officer Wilkie visited the store. Mr. Yoon gave Officer Wilkie a license plate number which Mr. Yoon had observed on Petitioner’s vehicle. Officer Wilkie also viewed the First Video. Id. at 43-45. On the First Video, Officer Wilkie observed Petitioner removing items from the display stand, and placing them alternately in his right and left jacket pockets. Id. at 45. Officer Wilkie and his partner identified the license plate number as belonging to Petitioner.

Officer Wilkie and his partner obtained a warrant for Petitioner’s arrest, and drove to Petitioner’s residence. Wilkie arrested Petitioner for:

[U]nlawfully and willfully did steal, take, and carry away 5 BOTTLES MISC. BODY OILS, the personal property of BEAUTY WORLD, such property having a value of $15.00.

R.Exs. 2 and 3. Officer Wilkie transported Petitioner to the Wake County Jail. Id. at 46-47; R. Exs. 2 and 3 (warrant and arrest report)

At the Wake County Jail, Officer Wilkie completed an arrest report on Petitioner, and asked Petitioner who was his current employer. Petitioner answered, “Temple of Judah Church of Our Lord.” Tr. p. 49. As Officer Wilkie was searching Petitioner, Petitioner advised Wilkie that he was “very familiar with this process because I’ve done it before with DOC.” Tr. p. 49; R. Ex. 2 (arrest report displaying this name of Petitioner’s alleged employer). On February 15, 2010 at 5:25 p.m., Petitioner was booked into the Wake County Jail. Tr. p. 65; R. Ex. 5 (Jail’s processing timeline).

At trial, Petitioner admitted that a telephone was available to him in his first holding cell in the Wake County Jail on February 15, 2010. That telephone could make outgoing calls. Tr. p. 214. Petitioner admitted that he was in this cell for “over a [sic] hour. It was a while.” Id. at 215. Petitioner admitted that he did not attempt to telephone Respondent to report his arrest while in the first cell. See id. at 214. Rather, he used the available phone to call a bail bondsman three times. Id.; R. Ex. 10.

Ronald Bellamy and Anna Ibarra were pre-trial intake investigators at the Wake County Jail. Tr. p. 57-58, 67-68. At 11:34 a.m. on February 16, 2010, Mr. Bellamy interviewed Petitioner at the Wake County Jail. During that interview, Petitioner did not give anyone’s name or telephone number to Bellamy to verify Petitioner’s employment or home address. Id. at 58-61, 65; R. Exs. 4 and 5 (Bellamy’s interview notes, and the Jail’s processing timeline). Later that same day, Ms. Ibarra interviewed Petitioner. Petitioner gave Ibarra a phone number for an individual named David Ruffin, as someone who could verify Petitioner’s home address and employment. Id. at 69-70; R. Ex. 6 (Ibarra’s computer entries).

At hearing, Petitioner admitted that he gave Mr. Ruffin’s home telephone number to a representative of the Wake County Jail on February 16, 2010. However, Petitioner claimed that he gave the number to Mr. Bellamy, not Ms. Ibarra. Tr. p. 217.

The preponderance of the evidence showed that Mr. Ruffin was not at work during the period Petitioner was in the Wake County Jail. Id. at 152. The evidence also showed that Mr. Ruffin was a non-managerial correctional officer at Wake Correctional. Id. at 104.

At 7:32 p.m. on February 16, 2010, Petitioner was released from the Wake County Jail. Tr. p. 66; R. Ex. 5. Petitioner admitted that he returned home, took some medication and went to sleep. He did not attempt to telephone Respondent to report that he had been arrested. Tr. p. 223; R. Ex. 10.

Lieutenant Ronald Perry works for Respondent at Wake Correctional. Tr. p. 74. On February 17, 2010, Lt. Perry was at work at Wake Correctional when Petitioner arrived late for work. Id. at 75. Petitioner reported to Lt. Perry and asked if he could go downtown to the Wake County Sheriff’s office to take care of some “business.” Id. at 76. Petitioner did not initially specify what that business was. Id. After Lt. Perry questioned Petitioner for approximately ten minutes, Petitioner volunteered that he had to go to the magistrate’s office to “take care of some trouble he had gotten into.” Id. at 76-77. Lt. Perry approved Petitioner’s request to go downtown.

After Petitioner left, Lt. Perry notified Assistant Superintendent of Wake Correctional Anthony Perry of Petitioner’s request. Tr. p. 78.

When Petitioner returned to work, Lt. Ronald Perry instructed Petitioner to report to Asst. Super. Anthony Perry. Id. at 227. When Petitioner reported to Anthony Perry, he acknowledged that he had been arrested, but did not explain why he had been arrested. Id. at 88.

Asst. Super. Perry instructed Lieutenant Charlie Paylin to investigate Petitioner’s arrest. Tr. pp. 141-142. When Lt. Paylin first interviewed Petitioner about the arrest, Petitioner claimed that he did not attempt to contact Respondent to inform Respondent about his arrest, because Petitioner did not have access to a telephone at the Wake County Jail. Id. at 144, R. Ex. 8. Yet, in Petitioner’s written statement of February 17, 2010, Petitioner does not acknowledge having had access to a telephone at the Jail.

During his internal investigation, Lt. Paylin contacted two officers at the Wake County Jail. Those officers informed Paylin that Petitioner, in fact, had access to a telephone while there. Tr. p. 146. When Lt. Paylin interviewed Petitioner again, Petitioner admitted that he had access to the telephone while in the Wake County Jail. Id.

In the course of his investigation, Lt. Paylin also obtained copies of the First and Second Videos from Beauty World. Tr. p. 148. Asst. Super. Perry and Lt. Charlie Paylin watched the First Video, and made the same observations as the Court, Ms. Cho, and Officer Wilkie. They observed Petitioner removing items from the display on February 2, 2010, and placing them alternately in his right and left jacket pockets. Id. at 95, 99, 148. Asst. Super. Perry, Lt. Paylin, and former Superintendent of Wake Correctional James Langston met with Petitioner, and showed him the video. At first, Petitioner denied that he was depicted in the Beauty World video. Later, Petitioner admitted the video depicted him in Beauty World. Id. at 97, 149.

On March 17, 2010, Respondent issued a pre-disciplinary letter to Petitioner, advising Petitioner of the possibility he would be terminated from employment. R. Ex. 14.

On March 28, 2010, Petitioner attended a pre-disciplinary conference, and submitted a written statement to Respondent.

On April 19, 2010, Respondent advised Petitioner that it was terminating Petitioner from employment, effective that day, and issued Petitioner a termination letter. R. Exs. 14, 15. The termination letter advised Petitioner that he was terminated from employment for unacceptable personal conduct, based on (1) his failure to contact Respondent within 24 hours of his arrest as required by Respondent’s written policy, and (2) for engaging in the theft observed on the Beauty World video. R. Ex. 15. The termination letter also noted that, at the time of Petitioner’s termination, Petitioner had an active written warning issued within 18 months of his termination. R. Exs. 12, 15. Respondent also advised Petitioner of his appeal rights per Respondent’s internal appeal procedure. R. Ex. 15.

Section 6, p 19 of Respondent’s Personnel Manual states in relevant part::

Criminal Offenses - All employees with the Department of Correction, including those employees in other pay status, i.e., exhausting vacation leave, sick leave, military leave, etc., or on leave without pay, are required to report within 24 hours to his/her supervisor any criminal offense for which they receive formal notice as defined below . . .

Once an employee is charged, he/she shall inform the Warden, Superintendent, Assistant Judicial Division Chief or work unit supervisor/manager of the situation immediately upon returning to the unit or within 24 hours, whichever is sooner. The employee may inform the manager, as listed above, verbally or in writing. . . . The important point, however, is that the employee inform the appropriate supervisor of the situation.

R. Ex. 13, pp. 19, Tr. p. 103-104.

34. Petitioner admitted at hearing that he was aware of Respondent’s 24 hour reporting policy of criminal offenses. Tr. p. 230-31.

35. The preponderance of the evidence demonstrated that Petitioner had the ability to contact Respondent within 24 hours of his arrest. Yet, Petitioner chose not to contact Respondent while in jail, but instead, telephoned a bail bondsman. By failing to notify Respondent of his arrest within 24 hours, Petitioner violated Respondent’s policy.

36. A preponderance of the evidence also showed that Petitioner made great efforts to avoid informing Respondent of his arrest. First, Petitioner gave David Ruffin’s home phone number to Officer Wilkie to verify Petitioner’s employer. Mr. Ruffin was not a DOC manager or supervisor, and was not working on that date. Tr. pp. 90, 104. Second, Petitioner was evasive about his arrest to Lt. Ronald Perry upon returning to work. Petitioner first told Ronald Perry that he had gotten into trouble, without mentioning his arrest. Third, when Petitioner’s supervisors talked with Petitioner on February 17, 2010, Petitioner initially denied he was on the Beauty World video. Tr. p. 133.

37. Respondent’s Personnel Manual informs DOC employees that Respondent can terminate employees for unacceptable personal conduct. “Unacceptable personal conduct” includes “conduct for which no reasonable person should expect to receive a prior warning,” “conduct unbecoming a state employee which is detrimental to state service,” and “theft of property.” R. Ex. 13; Tr. pp. 101-102, 106.

38. At hearing, Petitioner admitted that engaging in theft constituted unacceptable personal conduct under Respondent’s policies. Tr. at 231-32.

39. Based on the Court’s evaluation of documentary evidence, and the testimony and demeanor of Respondent’s witnesses versus those of Petitioner, the Court finds that Petitioner intentionally removed bottles of body oil from a display stand at Beauty Supply on February 2, 2011, put the bottles in his jacket pockets, and left the store without paying for them. The Court finds that Petitioner’s contrary account of what he did at Beauty World on February 2 was not credible, particularly in light of the Beauty World First and Second Videos.

Internal Appeal Process- Exhaust Administrative Remedies Issue

40. On the second day of hearing, Respondent advised of potential dispute about whether Petitioner had exhausted his administrative remedies, and presented evidence regarding that issue.

41. The preponderance of the evidence established that Respondent’s internal grievance procedure governing employees’ appeals of a disciplinary action consists of Step 1 and Step 2 appeal levels. Step 1 appeal involves filing a request for mediation with Respondent’s Mediation Intake Coordinator, Tracy Perry. Ms. Perry coordinates a mediation between the employee and Respondent. Step 2 is held before an employee relations committee. Tr. pp 168-169.

42. In this case, Petitioner initiated the first step of his appeal of his termination by requesting mediation with Ms. Perry. On May 17, 2010, Ms. Perry sent Petitioner a Notice that the required internal mediation would be held on June 2, 2010. R. Ex. 16; Tr. p. 158.

43. On May 20, 2010, Petitioner left a voicemail message for Tracy Perry acknowledging receipt of Respondent’s Notice of Mediation. On May 21, 2010, Petitioner left a voicemail message for Ms. Perry, questioning the mediator. Tr. pp. at 159-61 (T. Perry testimony) At the contested case hearing, Petitioner acknowledged that he received the Notice of Mediation, and that he left Tracy Perry the May 20, 2010 message. Tr. pp. 236-37 (Petitioner’s testimony)

44. On June 2, 2010, the mediator and a representative of Respondent appeared for the mediation. Petitioner did not appear for the mediation. Id. at 158,161. Petitioner did not attend the June 2, 2010 mediation, because he was incarcerated in the Wake County Jail from May 21, 2010 until June 19, 2010, after being charged with felony breaking and entering arising from a separate incident than the Beauty World incident at issue here. Tr. p. 267.

45. The evidence at hearing showed that Petitioner did not attempt to contact Respondent before June 2, 2010 to reschedule his mediation.

46. On October 12, 2010, four months after being released from jail, Petitioner delivered a written request to reschedule the mediation to Ms. Tracy Perry. Id. at 163; R. Exs. 17 and 18. Later on October 12, 2010, after consulting her supervisor, Ms. Perry denied Petitioner’s request in writing. R. Ex. 18. Ms. Perry denied Petitioner’s request, because Petitioner “did not notify us timely.” Perry thought Petitioner’s October 2010 request to reschedule mediation was not a reasonable request as Petitioner’s request was four months after Petitioner missed the mediation. Tr. p. 165.

47. At hearing, Petitioner alleged that soon after he was released from the Wake County Jail on June 19, 2010, he telephoned Ms. Perry, and attempted to reschedule the mediation. At hearing, however, Petitioner could not recall what day this alleged phone conversation occurred. Id. at 247.

48. In contrast, Ms. Perry denied that Petitioner called her on the telephone in June 2010. Id. at 166-67. Ms. Perry kept detailed notes of each interaction with Petitioner. Perry made no notation in her notes showing that Petitioner called her in June 2010. Tr. pp. 166-67. She explained that Respondent would have considered Petitioner’s request to reschedule a mediation date, had Petitioner made his request to reschedule promptly after being released from incarceration. Tr. p. 171, 174.

49. There was no other evidence presented at hearing confirming that Petitioner called Ms. Perry in June 2010, or at anytime before October 12, 2010, to request his mediation be rescheduled. (Tr. p. 165)

50. In fact, a preponderance of the evidence showed otherwise. First, in Petitioner’s written October 12, 2010 request to reschedule the mediation, Petitioner failed to mention a prior attempt to contact Respondent about rescheduling the mediation. R. Ex 18. Second, in responding to Respondent’s Requests for Admissions, Petitioner admitted that he did not contact Respondent at all between June and August 2010. Tr. p. 242; R. Ex. 19 (requests attached as exhibit to deposition). Later, Petitioner amended his Responses to Respondent’s Interrogatories, and retracted the admission that he had not contacted Respondent between June and August 2010. Instead, Petitioner alleged that he had recently remembered his purported conversation with Ms. Perry in June 2010. Tr. p. 244; R. Ex. 19.

51. Petitioner also provided inconsistent statements on other facts of this case.

a. First, Petitioner claimed he didn’t call his employer while he was in the first holding cell at Wake County Jail, because other inmates were in the jail, and he didn’t want those inmates to overhear his conversation and learn he was a correctional officer. He didn’t feel safe to call. Tr. 253. Yet, a few minutes later, Petitioner explained that the inmates in the initial holding cell recognized him, and spoke to him directly.

b. Second, Petitioner wrote in his DOC investigative witness statement that:

I was placed in protective custody in which telephone use was not available to me after trying numerous attempts to call the job & report the incident.

(R. Ex. 8) However, at hearing, Petitioner admitted that he did not attempt to telephone Respondent to report his arrest while in his first holding cell at Wake County Jail. Tr. p. at 214.

c. Third, Petitioner asserted five witnesses were lying about him at the contested case hearing. Tr. p.245. He explained that Tracy Perry was lying when she testified she did not receive a call from Petitioner in June of 2010. A few questions later, Petitioner changed his testimony by saying he thought Ms. Perry just didn’t remember he had called her in June of 2010. Petitioner also claimed that Lt. Perry didn’t deliberately lie about him, but was “caught up in another situation where he did not fully comprehend all that was going on.” Tr. p.246.

52. Based on the preponderance of the evidence, the Court finds Ms. Perry’s testimony was credible.

53. Given the content of Petitioner’s October 12th written request, and the inconsistency of Petitioner’s answers to Respondent’s Request for Admissions, along with Petitioner’s other inconsistent testimony at hearing, the Court finds Petitioner’s contrary testimony at hearing was not credible.

CONCLUSIONS OF LAW

Jurisdictional Issue

Pursuant to N.C. Gen. Stat. §§ 150B-23 and 126-34.1, the Office of Administrative Hearings may conduct contested case hearings based on a State employee or former State employee appealing a State agency’s disciplinary employment action against that employee.

2. N.C. Gen. Stat. § 126-34 requires an employee pursue the internal grievance procedure established by Respondent in order to appeal his termination on purely just-cause grounds. Where a Petitioner fails to complete such an internal grievance procedure, the OAH lacks jurisdiction to hear the petitioner’s action. N.C. Gen. Stat. § 126-37(a)

In this case, Respondent’s internal grievance procedure required Petitioner attend a mediation for the Step 1 phase of Petitioner’s internal appeal. Petitioner initiated a Step 1 appeal of his dismissal, but failed to attend his mediation as he was incarcerated when the mediation was scheduled.

a. Being incarcerated constituted a good cause reason for Petitioner to request his mediation be rescheduled. However, Petitioner knowingly abandoned his internal grievance by failing to request Respondent reschedule the mediation for over four months after Petitioner was released from jail, and became physically able to attend the mediation.

b. Given Petitioner’s inconsistent testimony, the Court does not believe Petitioner’s testimony that he attempted to reschedule his mediation by calling Tracy Perry in June 2010. Further, the undersigned does not believe that Petitioner was unaware of the consequences of his failing to pursue his grievance against Respondent in a prompt manner, after Petitioner admitted he hired an attorney to handle his grievance appeal in June 2010.

For the foregoing reason, Petitioner failed to exhaust his administrative remedies before filing his contested case petition. As a result, the Office of Administrative Hearings lack personal and subject matter jurisdiction to hear this contested case.

Just Cause Issue

Assuming arguendo that the Office of Administrative Hearings has personal and subject matter jurisdiction over this case, Petitioner was a career State employee subject to the provisions of the State Personnel Act, N.C.G.S. § 126-1 et seq. at the time of his discharge.

The State Personnel Act only permits disciplinary action against career state employees for “just cause.” N.C. Gen. Stat. § 126-35. Although “just cause” is not defined in the statute, the words are to be accorded their ordinary meaning. Amanini v. Dep't of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114 (1994) (defining “just cause” as, among other things, good or adequate reason).

Respondent has the burden of proof to show that it had just cause to dismiss Petitioner in accordance with N.C. Gen. Stat. § 126-35. Teague v. N.C. Dep't of Transportation, 177 N.C. App. 215, 628 S.E.2d 395, disc. rev. denied, 360 N.C. 581 (2006).

Administrative regulations provide two grounds for discipline or dismissal based on just cause: unsatisfactory job performance and unacceptable personal conduct. 25 NCAC 1J.0604 (b). Unacceptable personal conduct includes, inter alia, “conduct for which no reasonable person should expect to receive prior warning,” “the willful violation of known or written work rules,” and “conduct unbecoming a state employee that is detrimental to state service.” 25 NCAC 01J .0614(8) (a), (8) (d), and (8) (e).

One act of unacceptable personal conduct presents just cause for any discipline, up to and including dismissal. Hilliard v. N.C. Dep't of Correction, 173 N.C. App. at 597, 620 S.E.2d 17 (2005).

In this case, a preponderance of the evidence showed that Respondent complied with the procedural requirements for dismissing Petitioner from employment for unacceptable personal conduct in accordance with 25 NCAC 01J .0608 and .0613.

A preponderance of the evidence also established that Petitioner willfully and knowingly failed to report his arrest and his theft of property from Beauty World to Respondent in a timely manner in violation of Respondent’s 24 hour reporting policy in Section 6, p. 19 of Respondent’s Personnel Manual. Petitioner’s failure to report constituted unacceptable personal conduct, as Petitioner’s conduct was conduct unbecoming a state employee, was detrimental to state service, and was not the sort of conduct for which Petitioner would have expected to receive a prior warning before being dismissed. 25 NCAC 01J .0614(8) (a), (8) (d), and (8) (e).

Respondent acted properly in considering Petitioner’s active written warning in determining that it had just cause to terminate Petitioner’s employment.

Respondent proved by a preponderance of the evidence that it had just cause to terminate Petitioner from employment for unacceptable personal conduct.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby DISMISSES this contested case for lack of personal and subject matter jurisdiction. In the event the Office of Administrative Hearings possessed jurisdiction over Petitioner’s just cause claims, the undersigned hereby AFFIRMS Respondent’s decision to dismiss Petitioner from employment.

ORDER AND NOTICE

The North Carolina State Personnel Commission will make the Final Decision in this case. That agency 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 consider this decision. That 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.

This the 26th day of January, 2012.

______________________________

Melissa Owens Lassiter

Administrative Law Judge

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