STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CUMBERLAND 07 OSP 1479

|Stacey M Gasgue |) | |

| |)) | |

|Petitioner |))))| |

| |) | |

|vs. |) |DECISION |

| | | |

|N.C.Department of Corrections | | |

| | | |

|Respondent | | |

This matter was heard before the Honorable Donald W. Overby, Administrative Law Judge, on April 7, 2008 at the Old Cumberland County Courthouse in Fayetteville, NC.

APPEARANCES

For Petitioner: Stacey M. Gasque

4311 Bridge Street

Hope Mills, NC 28348

For Respondent: Catherine M. (Katie) Kayser

Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh, NC 27602-0629

WITNESSES

The Respondent, North Carolina Department of Correction (hereinafter “Respondent” or “NC DOC”) presented testimony from the following eight (8) witnesses: Stanley Ingram, Correctional Training Specialist II at Morrison Correctional Institution; Garland Patterson, a part-time firearms instructor at Sandhills Community College; Gregory Groff, Correctional Captain at Hoke Correctional Institution (hereinafter “Hoke C.I.”); Sekai Gwishiri, Correctional Officer at Hoke C.I.; Michael Scarboro, Correctional Captain at Hoke C.I.; Peter Buchholtz, Assistant Superintendent at Hoke C.I.; John T. Bullock, Superintendent at Hoke C.I.; and the Petitioner, Stacey M. Gasque (hereinafter “Petitioner”).

EXHIBITS

Respondent offered into evidence the following forty-two (42) exhibits, all which were admitted into evidence with the exception of Exhibits 26, 32, and 37 :

• R Ex. 1 (NC DOC-Division of Prisons Policies & Procedures on “Firing Ranges”, Chapter F, Section .3000 et seq.);

• R Ex. 2 (M&P 40 Familiarization/Qualification OSDT sign-in sheet);

• R Ex. 3 (Rifle Qualification OSDT sign-in sheet);

• R Ex. 4 (Shotgun Qualification OSDT sign-in sheet);

• R Ex. 5 (Photograph of targets);

• R Ex. 6 (Photograph of yard line markers);

• R Ex. 7 (Photograph of distance markers);

• R Ex. 8 (Photograph of shed);

• R Ex. 9 (Photograph of M&P .40 caliber handgun);

• R Ex. 10 (Certified copy of prior conviction for misdemeanor Communicating Threats);

• R Ex. 11 (Photo of dirt road);

• R Ex. 12 (Ingram’s written statement dated May 1, 2007);

• R Ex. 13 (Ingram’s affidavit dated December 18, 2007);

• R Ex. 14 (Firearms Safety OSDT sign-in sheet);

• R Ex. 15 (NC DOC Firearms Safety lesson plan);

• R Ex. 16 (NC DOC Firearms Handgun Safety lesson plan);

• R Ex. 17 (NC DOC Firearms Handgun Familiarization/Proficiency lesson plan);

• R Ex. 18 (Patterson’s written statement dated May 1, 2007);

• R Ex. 19 (Patterson’s affidavit dated December 17, 2007);

• R Ex. 20 (Groff’s written statement dated May 1, 2007);

• R Ex. 21 (Groff’s affidavit dated December 18, 2007);

• R Ex. 22 (Gwishiri’s written statement dated May 2, 2007);

• R Ex. 23 (May 2, 2007 memorandum from P. Buchholtz to J. Bullock concerning internal investigation into May 1, 2007 incident involving Petitioner);

• R Ex. 24 (NC DOC internal investigation rights form for Petitioner);

• R Ex. 25 (Petitioner’s written statement dated May 1, 2007);

• R Ex. 26 – excluded from evidence;

• R Ex. 27 (Buchholtz affidavit dated December 17, 2007);

• R Ex. 28 (May 8, 2007 letter to Petitioner regarding pre-dismissal conference);

• R Ex. 29 (Pre-disciplinary conference acknowledgment form signed by Petitioner on May 10, 2007);

• R Ex. 30 (May 10, 2007 letter to Petitioner regarding recommendation for dismissal);

• R Ex. 31 (May 24, 2007 letter to Petitioner regarding dismissal);

• R Ex. 32 – excluded from evidence;

• R Ex. 33 (NC DOC Employment Statements form signed by Petitioner on June 24, 2004);

• R Ex. 34 (Workplace Violence Incident Report concerning May 1, 2007 incident);

• R Ex. 35 (NC DOC Personnel Manual - Disciplinary Policies and Procedures, Appendices A through C);

• R Ex. 36 (Staff training history for Petitioner);

• R Ex. 37 – excluded from evidence;

• R Ex. 38 (Bullock affidavit dated December 18, 2007);

• R Ex. 39 (Petition for a Contested Case in 07 OSP 1479);

• R Ex. 40 (September 11, 2007 letter to Petitioner from Lola Denning);

• R Ex. 41 (Petitioner’s application for State employment dated June 17, 2004);

• R Ex. 42 (Petitioner’s certificate of release or discharge from active duty).

• Petitioner did not offer any exhibits into evidence.

ISSUES

1. Did Respondent have just cause to terminate its employment of Petitioner for one or more acts of unacceptable personal conduct?

2. Did Respondent discriminate against Petitioner on any illegal basis when it terminated its employment of Petitioner?

Based upon the pleadings and other materials in the file, sworn testimony of the witnesses, exhibits presented at the hearing and other competent and admissible evidence, the undersigned makes the following:

FINDINGS OF FACT

1. NC DOC has a policy governing the personal conduct of its employees. The Personal Conduct Policy is found in the NC DOC Personnel Manual as Appendix C to the Disciplinary Policy and Procedures. The policy states, “All employees of the Department of Correction shall maintain personal conduct of an acceptable standard as an employee and member of the community.” Insubordination, which is defined as “Refusal to follow the orders of a superior or supervisor; or refusal to follow established policy or practice,” is listed in the Personnel Manual as an example of unacceptable personal conduct.

2. NC DOC also has a policy governing violence in the workplace. The Violence in the Workplace Policy applies at work sites and any location where NC DOC employees are working and prohibits, among other things, any threat of violence toward another person.

3. Violation of either the NC DOC Personal Conduct Policy or Violence in the Workplace Policy is considered unacceptable personal conduct for which NC DOC can take disciplinary action, including dismissal of the employee.

4. NC DOC has a policy governing firing ranges which is found in Chapter F, Section .3000 of the NC DOC-Division of Prisons Policy & Procedures Manual. The Firing Ranges Policy specifies safety rules that are to be followed by all persons at all times while the range is in use. Safety rules are posted at the firing range with strict compliance required. Some of the safety rules are, “Safety first, always,” “Follow all instructions given by the range officers,” and “Shoot only at the target in the designated firing lane. Shooting at other objects (target holders, clips, other targets, etc.) will not be tolerated.” According to the Firing Ranges Policy, “Violation of any of these safety rules will be cause for expulsion from the firing range.”

5. Petitioner began his employment with NC DOC on July 4, 2004 as a Correctional Officer at Hoke Correctional Institution (“Hoke C.I.”); a prison facility located in McCain, North Carolina.

6. Upon employment, Petitioner was made aware of the various policies at NC DOC, including the Violence in the Workplace Policy.

7. On May 1, 2007, Petitioner responded to the McCain firing range for annual firearms re-certification. The McCain firing range is an approved site for use by NC DOC employees. Officers who are re-certifying are called “students” on the firing range, regardless of their rank or title. Four (4) firearms instructors were present to assist the students: Correctional Training Specialist Stanley Ingram (“Instructor Ingram”), Firearms Instructor Garland Patterson (“Instructor Patterson”), Correctional Captain Gregory Groff (“Instructor Groff”), and Correctional Captain Jean Stewart.

8. Students attended mandatory presentations on range operation and safety rules in a classroom at Sandhills Community College, including but not limited to the rules listed in paragraph 4 above. Students signed NC DOC Office of Staff Development and Training (OSDT) forms to verify their attendance at each portion of the course. The training included instruction on M&P .40 familiarization/qualification, rifle qualification, shotgun qualification, and firearms safety. Petitioner was present for each of these training sessions and signed his name on the OSDT forms. Instructors taught the sessions according to NC DOC-approved lesson plans developed by OSDT.

9. After the mandatory classroom instruction had concluded, students reported to the McCain firing range to begin firing weapons. Petitioner was in firing Lane # 8. Correctional Officer Sekai Gwishiri was in Lane # 7, to Petitioner’s left.

10. The first firearm that was distributed to students was the Ruger mini-14 rifle. Instructor Ingram observed that Petitioner was not engaging the safety on his rifle after each course of fire, as required in order to prevent accidental discharge of the weapon. Instructor Ingram warned Petitioner that this was a safety violation and further violations would result in his dismissal from the firing range.

11. The students then shot their qualification rounds with the rifle. The students counted the number of holes in their paper targets after firing ten (10) rounds. Petitioner only had nine (9) hits on his target, while Officer Gwishiri, in the lane to the left of Petitioner, had 11 (eleven) hits on her target. Thus, it appeared to the training instructors that Petitioner had fired a round into Officer Gwishiri’s target.

12. Shooting at targets outside of one’s designated firing lane is prohibited by the range safety rules articulated in the NC DOC-Division of Prisons Policy & Procedures Manual. Firing across lanes at another person’s target is not only dangerous, it is considered (cheating on a test” because the score a person receives when firing qualification rounds on a weapon must be their own.

13. The next weapon that was distributed to students was the M&P .40 caliber handgun. Students had a chance to practice shooting 50 rounds with the .40 caliber handgun before they had to qualify. When Instructor Ingram was assisting Officer Gwishiri in Lane # 7, he noticed Petitioner standing at his right rear flank with his loaded weapon unholstered and pointed at a 60 degree angle to the ground. This was a violation of the safety rules that require students to remain in their firing lanes. Instructor Ingram ordered Petitioner to step back into his own lane and re-holster his weapon. He then called for a cease-fire and took Petitioner off the firing line to counsel him about safety issues in the presence of Instructor Groff. Instructor Ingram informed Petitioner that he would be dismissed from the range if any further safety violations occurred. Petitioner was allowed to return to the firing line.

14. The students proceeded to shoot their qualification rounds on the .40 caliber handgun from the seven (7) yard line. Instructor Patterson stood behind Petitioner to have a better view of Officer Gwishiri, who was having difficulty qualifying. From this position, Instructor Patterson testified that he saw Petitioner “draw his weapon, swing it to his left, point at Ms. Gwishiri’s target, fire one (1) round, immediately swing the weapon back on his own target, and fire a second round.” This appeared to be a deliberate act due to the speed with which Petitioner fired the successive shots. 15. Instructor Patterson called for an immediate cease-fire and told Petitioner that he saw him shooting at Officer Gwishiri’s target, which Petitioner denied. Instructor Patterson reported Petitioner’s actions to Instructor Ingram. Instructor Patterson determined that Petitioner was “off the range, through for the day” and told Instructor Ingram to take Petitioner’s weapon.

16. In their capacity as firearms training instructors, Instructors Ingram, Patterson and Groff were superior in rank to Petitioner on the firing range.

17. Instructor Ingram ordered Petitioner to hand over his weapon. Petitioner argued that he had not fired at Officer Gwishiri’s target and then claimed that he may have accidentally shot it because sweat got in his eyes. Petitioner never asked to leave the range that day because of problems with his vision, nor was he observed sweating. Instructor Ingram repeated his order to hand over the weapon. When Petitioner failed to comply with the second order, Instructor Ingram reached out and took the weapon from Petitioner’s hand.

18. Instructor Ingram made the weapon safe and ordered Petitioner to leave the firing line. Petitioner did not immediately comply. He was agitated, argumentative, and belligerent. Instructor Ingram had to repeat the order to leave several times before Petitioner began to walk away. Petitioner walked approximately ten (10) to twelve (12) feet away from Instructor Ingram, then turned aggressively and angrily stated, “I have something in the car for you. I have something for you.” Petitioner then walked quickly in the direction of his personal vehicle.

19. Instructor Ingram perceived Petitioner’s statements as a threat to his personal safety and the safety of other staff on the range, so much so that he later took out a criminal warrant on Petitioner for misdemeanor Communicating Threats. He ordered Petitioner numerous times not to approach his personal vehicle, fearing that he might retrieve a weapon. Instructor Groff also ordered Petitioner more than once to get into a state vehicle. Petitioner did not comply with either order.

20. Instructor Ingram asked staff to call 911 and Hoke C.I. for assistance. Assistant Superintendent Peter Buchholtz and deputies from the Hoke County Sheriff’s Department responded to the McCain firing range. Assistant Superintendent Buchholtz observed that Petitioner was “very agitated” upon his arrival. He told Petitioner to return to Hoke C.I. to provide a written statement.

21. Superintendent John T. Bullock instructed Assistant Superintendent Buchholtz to conduct an internal NC DOC investigation into the incident at the McCain firing range. Assistant Superintendent Buchholtz interviewed and obtained written statements from Petitioner, the instructors, and other NC DOC staff who were present at the range on May 1, 2007.

22. In his written statement, Petitioner admitted that Instructor Ingram told him that he would be removed from the range if he did not put the safety on the rifle after firing. Petitioner also admitted, “I leaned/moved over to see what she [Officer Gwishiri] was doing wrong. Sgt. Ingram then got upset and called me, Capt. Stewart, and Capt. Groft together and said he had warned me previously about violating safety [rules] and 1 more violation he was going to send me home off the range.” Petitioner claimed that he “mistakenly” shot Officer Gwishiri’s target with the .40 caliber handgun.

23. Petitioner further admitted in his written statement that he questioned why he had to leave when ordered off the range and “stood still where [he] was at, thinking in [his] mind what [he] should do.” Petitioner denied telling Instructor Ingram, “I have something in the car for you,” and claimed that he said, “I know what I’m gonna do.” Petitioner admitted that he “pondered for a little while” when told to go to his car.

24. Upon completing his internal investigation, Assistant Superintendent Buchholtz issued a report to Superintendent Bullock on May 2, 2007. In the report, Assistant Superintendent Buchholtz outlined his conclusions that Petitioner had “violated NC DOC Personnel Policy by displaying grossly inefficient job performance and unacceptable personal conduct as it relates to insubordination.” Additionally, he found that Petitioner had violated several NC DOC firing range safety rules which “could have resulted in serious injury and possible death to assigned staff and instructors.”

25. Superintendent Bullock reviewed Assistant Superintendent Buchholtz’ investigation report and decided to recommend the Petitioner’s dismissal for unacceptable personal conduct.

26. In a letter dated May 8, 2007, Superintendent Bullock informed Petitioner that he had scheduled a Pre-Dismissal Conference for May 10, 2007. Petitioner refused to acknowledge receipt of the letter.

27. Petitioner had an opportunity to tell his side of the story at the Pre-Dismissal Conference attended by Superintendent Bullock and Lieutenant Charles Ellis. At the conclusion of the conference, Superintendent Bullock presented Petitioner with a letter noting that it was his intention to recommend Petitioner’s dismissal for unacceptable personal conduct. Superintendent Bullock testified that Petitioner’s race and gender played no role in his decision.

28. Superintendent Bullock submitted his disciplinary recommendation to his chain of command. NC DOC subsequently approved Petitioner’s dismissal for unacceptable personal conduct.

29. Superintendent Bullock notified Petitioner by letter dated May 24, 2007 that he was dismissed for unacceptable personal conduct that included insubordination by refusing to adhere to directives by Instructor Ingram to surrender his weapon and leave the range, and threatening Instructor Ingram in violation of NC DOC’s Violence in the Workplace Policy. Superintendent Bullock also noted Petitioner’s multiple safety issues on the firing range that created the potential to endanger himself, other participants, and training staff.

30. After completing his internal agency appeals, Petitioner filed a contested case at the Office of Administrative Hearings on September 18, 2007. In his contested case petition, Petitioner alleged that he was “unjustly terminated” by NC DOC and that his “termination also resulted in an discriminating [sic] nature.”

31. At the hearing on his contested case petition, Petitioner denied that Instructor Ingram had to ask him more than once to surrender his weapon and reiterated his claim to have mistakenly shot Officer Gwishiri’s target with the .40 caliber handgun. Petitioner denied threatening Instructor Ingram and claimed to have said “I know what I’m gonna do,” rather than “I have something in the car for you.” Petitioner testified that he was told not to go to his car and to go to the State vehicle, but conceded that he did not obey either order.

32. Petitioner did not raise any allegations of discrimination during his testimony at the hearing. Rather, Petitioner claimed there was a conspiracy of “people plotting secretly” to terminate his employment in retaliation for a complaint he made on Captain Jean Stewart in early September 2006, eight (8) months prior to the incident at the McCain firing range on May 1, 2007. Petitioner also contended that his transfer to Scotland Correctional Institution was rescinded on September 7, 2006 in retaliation for the complaint he made on Captain Stewart, a claim which Superintendent Bullock denied. Finally, Petitioner admitted that he had been given a written warning prior to the incident on the firing range on May 1, 2007.

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings.

2. Petitioner is a career State employee subject to dismissal only for just cause. N.C.G.S. § 126-1.1 and § 126-35(a) (2007)

3. The State Personnel Manual states that an employee may be dismissed for a current incident of unacceptable personal conduct without any prior disciplinary actions. State Personnel Manual, Section 7, p. 17; 25 NCAC 01J .0608. Insubordination, defined as “the willful failure or refusal to carry out a reasonable order from an authorized supervisor,” is noted in the State Personnel Manual as unacceptable personal conduct for which any level of discipline, including dismissal, may be imposed without prior warning. State Personnel Manual, Section 7, p. 3. The willful violation of known or written work rules also constitutes unacceptable personal conduct. Id.

4. Respondent’s own Personnel Manual outlines specific types of conduct that may result in disciplinary action, including dismissal without prior warning. Insubordination and violations of the Violence in the Workplace Policy are considered unacceptable personal conduct for which an employee can be disciplined.

5. The NC DOC-Division of Prisons Policy & Procedures Manual lists safety rules that are to be followed by all persons at all times when a firing range is in use. Violation of any of the listed safety rules is cause for expulsion from the firing range.

6. Respondent met its burden of proof and established by substantial evidence in the record that it had just cause to terminate its employment of Petitioner for unacceptable personal conduct, based on Petitioner’s insubordination that occurred at the McCain firing range on May 1, 2007. Petitioner repeatedly refused to obey orders from superiors to surrender his firearm, to leave the firing range, not to approach his personal vehicle, and to get into a state vehicle. Petitioner’s insubordination violated NC DOC’s Personal Conduct Policy and, as such, constituted unacceptable personal conduct.

7. Respondent met its burden of proof and established by substantial evidence in the record that it had just cause to terminate its employment of Petitioner for unacceptable personal conduct, based on Petitioner threatening Instructor Ingram at the McCain firing range on May 1, 2007. Petitioner admitted he was upset when ordered to leave the range because he didn’t think he had done anything wrong. Several witnesses testified that Petitioner was angry and argumentative when ordered to hand over his weapon and leave the range. In light of Petitioner’s agitated state and movement toward his personal vehicle, Instructor Ingram reasonably perceived the statements, “I have something in the car for you. I have something for you” as threats to cause physical harm. As such, Petitioner’s threats violated NC DOC’s Violence in the Workplace Policy and constituted unacceptable personal conduct.

8. Respondent met its burden of proof and established by substantial evidence in the record that its termination of Petitioner’s employment was further supported by the numerous safety violations he committed at the McCain firing range on May 1, 2007. Petitioner was admonished by Instructor Ingram for failing to engage the safety on his rifle after each course of fire. Petitioner fired across lanes into Officer Gwishiri’s target with both the rifle and .40 caliber handgun. Petitioner also moved behind Instructor Ingram in Officer Gwishiri’s lane with an unholstered, loaded weapon.

9. Petitioner’s safety violations at the firing range created the potential to endanger himself, the other participants, and the training staff. Petitioner attended NC DOC Firearms Safety courses on April 30, 2007, and April 20, 2006, and therefore was aware of the firing range safety rules articulated in the NC DOC-Division of Prisons Policy & Procedures Manual. Petitioner’s repeated violation of safety rules justified his expulsion from the firing range on May 1, 2007 and further supported his dismissal.

10. Pursuant to N.C. Gen. Stat. § 126-36 (2007), 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 Correction v. Gibson, 308 N.C. 131, 138, 301 S.E.2d 78, 83 (1983) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 215 (1981)).

11. North Carolina has adopted the burden-shifting scheme set out by the United States Supreme Court in McDonnell Douglas v. Greene, 411 U.S. 792, 36 L. Ed. 2d 668 (1973). Gibson, 308 N.C. at 141, 301 S.E.2d at 85. Petitioner bears the initial burden of establishing a prima facie case of discrimination, namely that: (1) he is a member of a minority group; (2) he was qualified for the position; (3) he was discharged; and (4) the employer replaced him with a person who was not a member of a minority group or alternatively, the employer retained a white employee under apparently similar circumstances. Id. at 137, 301 S.E.2d at 82-83.

12. Once Petitioner establishes a prima facie case, the burden shifts to the employer to “clearly explain by admissible evidence, the nondiscriminatory reasons for the employee’s rejection or discharge.” Gibson, 308 N.C. at 139, 301 S.E.2d at 84. Petitioner must then prove that the proffered reasons were a pretext for discrimination. N.C. Dep’t of Crime Control & Public Safety v. Greene, 172 N.C. App. 530, 539, 616 S.E. 2d 594, 601 (2005). “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.’” Id. at 539-40, 616 S.E. 2d 601 (quoting St. Mary’s Honor CT. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 422 (1993).

13. Petitioner has failed to establish a prima facie case of race or gender discrimination. While Petitioner is a member of a minority group as an African-American, his refusal to follow several direct orders from superiors at the firing range on May 1, 2007 demonstrates that Petitioner could not follow NC DOC policies and therefore was not qualified to continue serving as a Correctional Officer. Moreover, Petitioner has failed to prove that he was replaced with a person who was not a member of a minority group, or that white or female employees were retained under apparently similar circumstances.

14. Even if Petitioner had proven a prima facie case of race or gender discrimination, Respondent established through substantial evidence in the record that it had legitimate non-discriminatory reasons for terminating his employment based on his unacceptable personal conduct at the McCain firing range on May 1, 2007. Moreover, Petitioner failed to prove that the reasons articulated by Respondent for his dismissal were a pretext for intentional discrimination.

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

DECISION

That the decision of the Respondent to terminate Petitioner’s employment for unacceptable personal conduct be upheld. The undersigned finds that Petitioner has failed to establish a prima facie case that Respondent’s decision to terminate his employment was motivated or in any way influenced by Petitioner’s race or gender. The undersigned finds that even if Petitioner successfully established a prima facie case of discrimination on the basis of race or gender, Respondent possessed and articulated a legitimate, non-discriminatory reason for Petitioner’s dismissal, a reason that Petitioner was unable to show was pretextual and unworthy of credence.

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 9th day of June, 2008.

_________________________________

Donald W. Overby

Administrative Law Judge

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