STATE OF NORTH CAROLINA
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF CUMBERLAND 08 OSP 0576
TERRI WALKER WEST, Petitioner,
v.
N.C. DEPARTMENT OF TRANSPORTATION,
Respondent.
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DECISION
THIS MATTER came on for hearing before the Honorable Joe L. Webster, Administrative Law Judge, on September 10 and 11, 2008, November 12 and 13, 2008, and February 2 and 3, 2009, in Fayetteville, 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:
Geraldine Sumter, Attorney at Law
Tanisha P. Johnson, Attorney at Law
Ferguson Stein Chambers Gresham & Sumter, P.A.
741 Kenilworth Avenue, Suite 300
Charlotte, North Carolina 28204
For the Respondent:
Neil Dalton, Special Deputy Attorney General
Jess D. Mekeel, Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, North Carolina 27699
ISSUES
1. Was Petitioner’s dismissal with just cause?
2. Was Petitioner’s dismissal the result of racial discrimination or retaliation?
3. Was Petitioner improperly denied a transfer?
4. Were the disciplinary actions taken against Petitioner, other than her dismissal, with just cause?
5. Were the disciplinary actions taken against Petitioner, other than her dismissal, the result of racial discrimination or retaliation?
EXHIBITS
Petitioner’s Exhibit Nos. 1, 2, 3, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 27, 28, 29, 30, 31, 32, 42, 48, 49, 54, 55, 56, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 73, 74, 82, and 83.
Respondent’s Exhibit Nos. 3A, 5, 6, 7D, 7E, 7I, 7O, 7R, 9, 10A, 10B, 10C, 13, 14C, 14D, 16E, 18H, 18L, 19, 21B, 21C, 21D, 21E, 21F, 22B, 22C, 22E, 23A, 23B, 23C, 24, 26, 27, 29, 30, 35, 36, 37, 38, 40A, 40B, 40C, 48, 49, 50, 51, 52, 53, 54, 55, and 56.
WITNESSES
Petitioner called as witnesses: Petitioner and Ms. Laura Barry
Respondent called as witnesses: Ms. Brenda Tyndall, Mr. Mike Salisbury, Ms. Darlene Yow, Ms. Rhonda Kozen, Mr. Joe Franze, Dr. Mark Hazelrigg, Ms. Brenda Grady, and Petitioner.
PROFFER OF EXHIBITS 73 and 82
The undersigned finds that Exhibits 73 and 82 should be admitted into evidence and are to be given appropriate weight by the undersigned.
FINDINGS OF FACT
1. The parties stipulated to adequate notice of the hearings.
2. The Department of Transportation (“DOT”) is a State agency that employs over 12,000 employees and whose work is divided among seven (7) divisions, each addressing different modes of transportation: Aviation, Bicycle & Pedestrian, Motor Vehicles, Ferry, Highways, Public Transportation, and Rail. (Ex. J-5b p. 2).
3. The Division of Motor Vehicles (hereinafter “Respondent”) employs more than 500 employees and is responsible for driver licensing, vehicle registration, and license plates. Respondent’s goals are to deliver quality motor vehicle services, promote highway safety, furnish timely and accurate information through excellent customer services, enforce motor vehicle laws, and maintain the integrity of motor vehicle records. Respondent’s work related to licensing is handled through local driver license offices staffed with Driver License Examiners. These offices are organized into districts. There are several Senior Driver License Examiners who supervise multiple offices within a district, and there is one District Supervisor who supervises the entire district. The districts, in turn, are organized into geographic zones, which are supervised by a Regional Zone Chief Examiner. At various times, there have been either two or three geographic zones. (Ex. J-5b p. 2).
4. Respondent’s driver license offices in Raeford, Aberdeen, Monroe, Polkton, Hamlet, Laurinburg, Albermarle, and Tray comprise District H, which is a part of the Central Region.. Within District H, there are four (4) Senior Examiners. The Senior Examiner located in the Aberdeen Office is Rhonda Kozen (hereinafter “Senior Examiner Kozen”) (White/female), who has held that position in District H for over thirteen (13) of her twenty-three (23) years with Respondent. In the capacity, Senior Examiner Kozen supervises both the Aberdeen office, with five (5) Driver License Examiner positions, and the Raeford office, with two (2) Driver License Examiner positions. (Ex. J-5b pp. 2-3) (See also Pet. ex. 1).
5. In May 2004, Respondent hired Terri Walker West (hereinafter “Petitioner”) (Black/female) as a Driver License Examiner at the Raeford office. Petitioner’s position was subject to the non-exempt provisions of the State Personnel Act, Chapter 126 of the North Carolina General Statutes. (Ex. J-1b).
6. At the time Petitioner was hired, Kalen Wilhide (hereinafter “Examiner Wilhide) (White/female) was the other Driver License Examiner in the Raeford office, and Doug Elliott (hereinafter “District Supervisor Elliott) (White/male) was the District Supervisor over District H. In late 2006, Examiner Wilhide, an eleven- or twelve-year veteran with the State, resigned due to the inability of Examiner Wilhide and Petitioner to work together. (T. p. 586). Thereafter, Brenda Tyndall (hereinafter “Examiner Tyndall”) (White/female) worked as the other Driver License Examiner in the Raeford office in addition to Petitioner. (T. p. 84). District Supervisor Elliott retired in or about November 2006, and Brenda Grady (Black/female), the District Supervisor over District D at the time, filled in until Joe Franze (hereinafter “District Supervisor Franze”) (White/male) subsequently became the District Supervisor over District H. (T. pp. 881, 951-52). The Central Region Chief Examiner was Mike Salisbury (hereinafter “Chief Salisbury”) (White/male), but beginning on or about June 16, 2007, Brenda Grady (hereinafter “Chief Grady”) became the Central Region Chief Examiner. (T. pp. 951, 1045). (See also Pet ex. 1).
7. In two-employee offices, such as Raeford, one of the Driver License Examiner positions is designated as a Lead Examiner. Although the Lead Examiner position is non-supervisory and receives the same pay as a Driver License Examiner position, the Lead Examiner has additional duties and responsibilities, such as making bank deposits, mailing reports at the end of the day, and ensuring that the office equipment is operable. During Petitioner’s employment with Respondent, Examiner Wilhide first served as the Lead Driver License Examiner in the Raeford office, and then, from March 2007 until the time of Petitioner’s termination, Examiner Tyndall served as the Lead Driver License Examiner in the Raeford office. (T. pp. 44, 84, 461).
8. At the time of her termination, Petitioner had been a State employee for approximately ten years – from September 1997 to May 2004 with the Department of Correction (hereinafter “DOC”) and from May 2004 October 2007 with Respondent. (Pet. ex. 48-49).
9. On October 1, 2007, Petitioner was given a Notice of Pre-Disciplinary Conference, informing Petitioner that said conference was to be held at the Raeford Office at 11:00 a.m. on October 5, 2007 and that during said conference, Petitioner would have the opportunity to respond to the recommendation that she be dismissed for unacceptable personal conduct stemming from incidents occurring on or between September 12, 2007 and September 18, 2007. (Resp. ex. 52).
10. District Supervisor Franze and Chief Grady traveled to the Raeford office for the conference. However, at Petitioner’s request sent via email earlier that morning, the pre-disciplinary conference was held over the telephone instead of in person at the office. Petitioner informed Chief Grady and District Supervisor Franze that she would call them at 11:00 a.m. to participate in the conference. Petitioner called Chief Grady at 11:12 a.m. and provided a cursory denial of the allegations against her. Chief Grady asked if there was anything Petitioner wished to add, and Petitioner stated, “That’s my response.” Chief Grady thereupon advised Petitioner “that a decision would be made sometime after twenty-four hours and that she would be notified by mail of the decision.” (Resp. ex. 19 pp. 1-3; T. p. 995).
11. On October 10, 2007, Respondent dismissed Petitioner for unacceptable personal conduct based upon insubordination, conduct unbecoming a State employee detrimental to State service, and conduct for which no reasonable person should expect to receive prior warning. (Resp. ex. 53). Specifically, this included three incidents of hanging up the telephone on her supervisors, refusing to obey a directive to report to the Aberdeen office, and lying about the hang-ups during her pre-disciplinary conference.
12. Petitioner filed a grievance with Respondent, and following a hearing, Petitioner's dismissal was upheld on January 30, 2008 by unanimous vote of Respondent's Employee Relations Committee. One of the Committee members was an African-American. (Resp. ex. 54; T. pp. 376-77).
13. By letter dated February 8, 2008 from Daniel H. DeVane, DOT Chief Deputy Secretary, Respondent upheld the Employee Relations Committee’s decision concerning Petitioner’s grievance. (Resp. ex. 55).
14. On March 3, 2008, Petitioner filed a Petition for Contested Case Hearing pursuant to N.C.G.S. §126-34.1 and §126-37. In her Petition, Petitioner alleged the following: discharge without just cause, discrimination and/or retaliation related to her termination and transfer, and “SUPERVISORS IN MY CHAIN OF COMMAND’S FAILURE TO INVESTIGATE MY DISCRIMINATION COMPLAINT WHEN I REPORTED IT/RETALIATION/CONSPIRACY TO HAVE ME DISMISSED/ HARASSMENT/WORK PLACE VIOLENCE/FAILURE TO PROTECT ME WHEN I REPORTED BEING THREATENED & AFRAID OF A CO-WORKER/FAILURE TO FOLLOW EAP POLICY WHEN I REPORTED MAKING A SELF REFERRAL FOR THEIR SERVICES/VIOLATIONS OF NC DOT EAP POLICY./WHISTLE BLOWER LAW VIOLATIONS/VIOLATIONS OF FAMILY MEDICAL LEAVE ACT/BEING ISSUED WRITTEN WARNINGS FOR ALLEGED VIOLATIONS, EVEN AFTER REPORTING THE ABOVE CHARGES/FAILURE TO TRANSFER ME TO INVESTIGATE THE WORKPLACE VIOLENCE CHARGES.” (Petition p. 1).
15. At the conclusion of hearing on this matter, Petitioner expressly abandoned or waived all of the claims in the Petition except for the following – “the allegations of race and retaliation with respect to the way that [Petitioner] was treated by her coworkers, the denial of the transfer, the discipline, and the ultimate discipline, the discharge.” (T. pp. 1140-41). Therefore, this Court’s review is limited to these issues.
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16. During 2007 Petitioner has jointly filed nine (9) charges of discrimination against Respondent with the Civil Rights Division and EEOC. Those charges – listed herein by the Civil Rights Division charge numbers – are as follows: 07-CRD-0007, 07-CRD-0023, 07-CRD-0032, 07-CRD-0035, 07-CRD-0045, 07-CRD-0046, 07-CRD-0047, 08-CRD-0001, and 08-CRD-0011. The Civil Rights Division and EEOC found no cause as to any of Petitioner’s allegations in seven (7) of her charges, to wit: 07-CRD-0023, 07-CRD-0035, 07-CRD-0045, 07-CRD-0046, 07-CRD-0047, 08-CRD-0001, and 08-CRD-0011. The Civil Rights Division and EEOC found only partial cause on only two (2) of her charges – 07-CRD-0007 and 07-CRD-0032 – and Respondent took reasonable remedial measures to correct all issues therein. (Ex. J1-9). These charges and findings will be discussed further herein.
Beginnings of Petitioner’s Employment
17. Petitioner’s employment with Respondent was somewhat strained from the outset, when she allegedly experienced difficulties with adjusting from employment at DOC to employment with Respondent. Although her relationship with her co-worker in the Raeford office, Examiner Wilhide, was cordial at first, things changed within the first month when there was an exchange over proper uniforms at work. Specifically, Petitioner testified that Examiner Wilhide informed District Supervisor Elliott that Petitioner’s attire was inappropriate, and Petitioner believed that Examiner Wilhide should have approached her about the matter first. (Resp. ex. 56 pp. 21, 26; T. p. 26). Nevertheless, Petitioner was commended on her knowledge of policy and procedures and for customer service. Pet. Ex. 9, 10, Tr. pp. 704, 794. Joe Franze, a district supervisor, found her interactions with customers and co-workers to be professional and strictly business. Tr. p. 786.
18. Thereafter, Petitioner, who felt she was not learning anything because there was only one computer in the office, sought assistance from District Supervisor Elliott. Petitioner stated that Examiner Wilhide did not want to help her learn. District Supervisor Elliott, in an attempt to accommodate Petitioner, sent Petitioner to other local offices. District Supervisor Elliott sent Petitioner first to the Laurinburg office because that office was short one examiner. During the three or four weeks that Petitioner was in that office, she received substantial training on various aspects of a driver license examiner’s job, including additional knowledge on the computer system, identity checks, and documentation rules. Petitioner next was sent to the Aberdeen office, where she spent four to five weeks and received training on other aspects of the driver license examiner’s job, including the use of Respondent’s camera system, Viisage. (Resp. ex. 56 pp. 30-31).
19. After her stint in the Aberdeen office, Petitioner spent the next eight weeks attending Respondent’s basic examiner school, and after completing basic examiner school in or about November 2004, Petitioner returned to the Raeford office. (Resp. ex. p. 31; T. p. 430).
Conflict in Early 2006.
20. In March 2006, Petitioner emailed Senior Examiner Kozen to question whether there are multiple routes available for driver license road tests or if “we get to change the routes up.” Senior Examiner Kozen informed Petitioner that it was permissible to have two routes and that Aberdeen even had three. Petitioner asked whether it was permissible for Examiner Wilhide to conduct road tests on private property, such as grocery store parking lots. Senior Examiner Kozen informed Petitioner that District Supervisor Elliott was aware of the Raeford road test routes and that he had not expressed concern over it; Senior Examiner Kozen offered to look into the matter further if Petitioner so desired. (Resp. ex. 7D).
21. In mid-April 2006, after having complained of not having the opportunity to perform re-exams, Petitioner was instructed to report to the Aberdeen office to perform re-exams. Petitioner questioned why Examiner Wilhide simply did not train her to do re-exams at the Raeford office. Although Petitioner complained about the added distance to Aberdeen, Petitioner would have been given payment for her mileage and payment for her time spent driving to the Aberdeen office. (T. p. 364).
22. On May 17, 2008, Petitioner again was instructed to report to Aberdeen for re-exams, and again, she sent an email to management – including District Supervisor Elliott, Chief Salisbury, and Wayne Hurder (hereinafter “Director Hurder”), Director of Driver and Vehicle Services – questioning the instruction and lamenting, “I have no say so in the matter, when it clearly involves my gas/mileage or [sic] my vehicle, in which I just had a blow out of my tire at lunch yesterday.” Petitioner further alleged to these members of management – who were two, three, and four rungs up the chain of command, respectively – that there was “some sort of conspiracy” prohibiting her from receiving instruction in the Raeford office and that sending her to Aberdeen was not cost-efficient and constituted a waste of DOT resources.
23. The following day, on May 18, 2006, Petitioner sent an email to Director Hurder, apologizing and explaining her email of the previous day. However, Petitioner sent an email minutes later to fellow driver license examiner James Gibson (hereinafter “Examiner Gibson”), in which she forward to him the email she sent to Director Hurder and then stated, “Tell me, I wasn’t too uppity & groveled enough to save my you-know-what!” (Resp. ex. 7E). When asked what “you-know-what” means, Petitioner offered the following explanation, “That would be me, my – my – my – who I am, my person. . . . Myself, it meant myself.” (Resp. ex. 56 p. 123; T. p. 366).
24. On May 26, 2006, Petitioner sent a lengthy email to Chief Salisbury, in which, among other things, Petitioner stated that she was sorry she did not have an opportunity to speak with Chief Salisbury in person when he visited District H and that she was sorry for sending the aforementioned email to Director Hurder without first informing Chief Salisbury of the circumstances surrounding the email. Petitioner further stated, “I am aware that a great injustice has been done to my character, as well as my capabilities as an examiner.” Petitioner insisted that she had been denied training opportunities, that her role in the Raeford office was “very controlled and limited,” and that there was an unspoken threat and intimidation against her.
25. In her email, Petitioner proceeded to list various problems in the office, but per her own words, many of the alleged issues had already been corrected or had ceased to be issues, such as: (1) being given $40.00 to make correct change for customers, which had been resolved by Senior Examiner Kozen; (2) working in Raeford for several months before she was given a combination to the safe; (3) “finally” being given an examination template book so that she could grade tests; (4) being forbidden from answering the office phone by the Raeford office’s Spanish interpreter, who had since left the office, at which point Petitioner noted, “I finally go to do some things in the office”; and (5) objecting to the playing of the song “Red Neck Woman” by the Spanish interpreter and Examiner Wilhide, stating that she informed them that she found the song “very derogatory and racially offensive” to African-Americans. Petitioner’s claim that the song “Redneck Woman” is racially offensive towards African-Americans is without merit. The undersigned takes judicial notice that, depending upon the context, “redneck” is a disparaging term for Caucasians, if for anyone, and indeed, the lyrics of the particular song contain no racially charged language directed at African-Americans. (Resp. ex. 7I p. 4). In fact, Petitioner was not even familiar with the lyrics when questioned about the song during this hearing. (T. pp. 393-94).
26. Petitioner’s May 26, 2006 email also broadly accused, without examples, management of taking an unprofessional tone with her. Ultimately, the crux of Petitioner’s email was that Examiner Wilhide “has done everything she can to undermined [sic] me with [Senior Examiner Kozen and District Supervisor Elliott].” Nevertheless, after listing her apparent grievances, Petitioner concluded her email by saying, “My purpose for this email is first to apologize whole-heartedly for not knowing who you were and not directing my concerns through the Chain of Command.” (Resp. ex. 7I).
Alleged Use of Word “Nigger”
27. Petitioner’s May 26, 2006 email to Chief Salisbury also purportedly reiterated her complaint concerning the use of the word “nigger” (hereinafter “the ‘N’ word”) in the workplace. Although not specified in this email, Petitioner has since stated that in or about March and April, 2006, Examiner Wilhide allegedly used the “N” word twice during conversations at the Raeford office. (T. p. 56; Resp. ex. 56 pp. 35-37; Pet. ex. 61). As the undersigned has previously noted, this word is “an extremely derogatory term” that can evoke “vivid images of slavery.” Foard v. N.C. Highway Patrol, 07 OSP 0135, at *5 n.2 (OAH Nov. 5, 2008).
28. Here, however, Petitioner alleged that on March 31, 2006, Examiner Wilhide was talking with another employee – although the Civil Rights Division found that there were no witnesses to this conversation (Ex. J-9b p. 3) – about going to eat, and that Examiner Wilhide said she would not go to a particular restaurant because the owner refers to black people by the “N” word, which she does not like or use. (Resp. ex. 56 p. 36; Pet. ex. 61). In this context, Examiner Wilhide was not using the word to refer to Petitioner or anyone else, and she was not using the word in a derogatory or hateful fashion. In fact, she used the word in the context of explaining that she would not associate with people who used the word as a racial epithet. Nevertheless, Petitioner claims that she instructed Examiner Wilhide that, regardless of the context, such a word “should never be used to [sic] my presence.” (Resp. ex. 56 pp. 36-37). Examiner Wilhide, however, stated that Petitioner never made her aware that she was offended by the remark or the conversation and that, in fact, Petitioner agreed with her that they should not eat at that particular restaurant. (Ex. J-9b p. 3).
29. Petitioner testified that two weeks after this incident, Examiner Wilhide used the “N” word a second time, although in her Petition, the time between the incidents was approximately four weeks, with the second incident allegedly occurring on April 25, 2006. With regards to the second alleged use of the “N” word, Petitioner has claimed that Examiner Wilhide told a “joke about this Icelandic exchange student living with her brother and how it was so funny that the Icelandic family that was coming here had never seen black people apparently. So when they were looking at American TV, they saw this person on the TV using the ‘N’ word , and they thought that’s how black people greeted each other” and that thereafter, “they were at an amusement park, and they greeted somebody by calling them the ‘N’ word, hello.” (Resp. ex. 56 p. 37).
30. Petitioner admitted that she did not address this alleged second use of the “N” word with Examiner Wilhide because she is “not a confrontational person.” (Resp. ex. 56 p. 37). Petitioner’s description of the second alleged use of the “N” word and her claim that she did not address the matter with Examiner Wilhide because she did not want to be confrontational strains credulity. Petitioner claims she immediately called Senior Examiner Kozen and District Supervisor Elliott regarding the incident. (Resp. ex. 56 p. 37). However, in her charge of discrimination to the Civil Rights Division, Petitioner claimed she addressed the matter with Senior Examiner Kozen and Chief Salisbury. (Pet. ex. 61). Additionally, belying her claim that she called Senior Examiner Kozen and District Supervisor Elliott, the record is replete with evidence that in virtually every other complaint Petitioner made to management, both before and after this incident, Petitioner communicated in writing via email.
31. Eventually, Petitioner did make a written complaint with her email to Chief Salisbury on May 26, 2006, which included the use of the “N” word among a list of complaints. In the email, Petitioner claimed, “I have told [Examiner Wilhide] that I do not like this word, yet she continues to use it evolving [sic] around these jokes.” (Resp. ex. 7I).
32. Petitioner’s claim in the email that Examiner Wilhide’s use of the “N” word was ongoing – as opposed to one or at most two isolated instances – stands in marked contrast to Petitioner’s own filings with the Civil Rights Division, deposition, and testimony, as well as the findings of the Civil Rights Division.
33. After receiving Petitioner’s email complaint, Chief Salisbury personally questioned Examiner Wilhide, and Examiner Wilhide denied the allegation, leaving Chief Salisbury with nothing more than Petitioner’s word against Examiner Wilhide’s so he dropped the issue. (T. pp. 604, 612) Chief Salisbury testified that with every complaint he receives, he questions both parties if there are two people involved, however, did not speak to Petitioner at that time. He found Petitioner’s charges to be invalid and unfounded. T. p. 617.) The undersigned does find that Chief Salisbury should have spoken to Petitioner further about her complaint at the time it was made. However, his failure to do so until several months later does not rise to the level of proof, in and of itself, of discriminatory treatment against Petitioner.
34. Several months later, Chief Salisbury and District Supervisor Elliott went to the Raeford office to discuss another issue with Petitioner, and Petitioner brought up the “N” word incident again, saying “Well, you’ve never done anything about that.” Chief Salisbury offered to further investigate the matter and told Petitioner, “Put it in writing, give me the specific dates, times, what was said, any witnesses”; Petitioner, however, failed to follow up on the matter per Chief Salisbury’s offer and instructions. (T. pp. 604-05). Chief Salisbury testified that he was not made aware that Examiner Wilhide admitted to the EEO officer that she used the word “nigger” in the work place. T. p. 633. Wilhide was not disciplined for her conduct despite Darlene Yow’s testimony that the use of the word “nigger” in the workplace always results in a written warning. T. p. 696. The undersigned finds that Examiner Wilhide’s admission to the EEO officer (T p. 633) that she used the word “nigger” in the work place is referring to the occasion that Wilhide told Petitioner about the restaurant Wilhide refused to patronize because the restaurant owner used the word. The undersigned finds that the word “nigger” was not used in a context of referring to another person and its use in that specific context would not warrant a written warning. If the use of the word in that context was uttered after Petitioner’s communication to Wilhide that Petitioner did not desire to hear the word under any circumstances, then a different conclusion could be reached. However, that is not the case here.
35. During the Civil Rights Division’s investigation, the Civil Rights Division found that Examiner Wilhide denied using the word in this second incident alleged by Petitioner and admitting to saying the ‘N’ word only once when, as described by Petitioner, she was referencing a restaurant that she would not frequent because the owner allegedly used the word. (T. pp. 604-05, 632-34, 647-48; Ex. J-9b p. 3).
36. Ultimately, at no time has Petitioner’s allegation concerning the second alleged use of the word been substantiated, notwithstanding a thorough investigation by the Civil Rights Division. (Ex. J-9b). The only substantiated use of the “N” word by Examiner Wilhide was to decry its use as a racial epithet by a restaurant owner and to explain that she would not frequent that restaurant as a result. Such an innocuous use of the word was in the context of a commendable statement and position taken by Examiner Wilhide. Indeed, in her testimony, Chief Grady, a Black female, praised Examiner’s Wilhide’s statement, and explained, “You know, I would think she is just wonderful to say she wouldn’t go there.” (T. p. 878).
Continued Office Conflict and Attempts at Resolution
37. After the May 26, 2006 email to Chief Salisbury, office relations continued to deteriorate. When Examiner Bosworth returned from maternity leave, Petitioner and Examiner Abrams approached her and tried to encourage her to file a lawsuit against the State. On several occasions, Petitioner and Examiner Abrams told Examiner Bosworth, “You’re with us or against us.” Examiner Bosworth, however, told them that she did not want get involved with their plan, that she just wanted to go to work, do her job, and get along with everyone. (T. p. 921).
38. Petitioner also complained to Senior Examiner Kozen regarding instances in which Petitioner was forced to work by herself in the Raeford office. (T. p. 98). However, Petitioner was not the only examiner, either in District H or the entire state, who ever had to work alone (T. pp. 952-53), and in fact, Examiner Tyndall had worked the Raeford office by herself on many occasions. (T. p. 461). Petitioner acknowledged that other examiners had to work alone at times, as well, and that there were mechanisms, such as locking the front door or putting a sign on the window, that such an examiner could use to alert customers should she need to leave the office, such as for a road test. (T. pp. 290-91). Despite Petitioner’s complaints, Senior Examiner Kozen said she would try to provide Petitioner with notice should instances arise in which Petitioner would be required to work alone, and once Chief Grady became responsible for the district, she made her policy to ensure that, whenever possible, no examiner should have to work alone. (T. pp. 952-56). Nevertheless, Petitioner filed a discrimination charge on this issue.
39. With respect to Charge # 07-CRD-0046, regarding the allegation that Petitioner was discriminated against because she was had to work alone, the Civil Rights Division made the following relevant findings:
a) “During the morning of August 9, 2007, [Petitioner] was alone in the office for approximately 2 hours before assistance arrived.”
b) “The evidence shows that both Black and White examiners have to work alone at times and on some of these occasions must work alone with little or no prior notice.” (Ex. J-4b p. 3).
c) The Civil Rights Division concluded that there was no evidence that Petitioner had to work alone because of her race and that many examiners had to work alone days at a time. (Ex. J-4b p. 5).
40. Further, Petitioner alleged that she was being wrongly denied leave requests. As demonstrated the evidence of record, Petitioner was routinely granted time off from work. (Resp. ex. 36; T. pp. 864-65). Nevertheless, Petitioner filed a discrimination charge with the Civil Rights Division.
41. With respect to Charge # 07-CRD-0045, regarding the allegation that Petitioner was discriminated against in the approval of her leave, the Civil Rights Division made the following relevant findings:
a) “The investigation found, after a review of the record of evidence including the leave records and Charging Party’s own admissions, that she was permitted to take the leave in question with pay, and that she was not penalized in pay, work hours earned or through any discipline for the documentation delays and errors described.” (Ex. J-5b p. 11).
b) Ultimately, the Civil Rights Division found no discrimination in the approval of her leave. (Ex. J-5b p. 11).
42. In an attempt to resolve the office relations issues, Chief Salisbury scheduled a meeting with management and Raeford and Aberdeen employees in September 2006. (T. p. 694). Chief Salisbury’s goal for the meeting was to meet with everyone and to “reestablish the rules” and “redefine the boundaries” in order to resolve the “interpersonal discord.” (T. pp. 694-95). As such, on September 7, 2006, District Supervisor Elliott informed the Aberdeen and Raeford employees that there would be a mandatory office meeting at the Aberdeen office after work on September 14, 2006. (Resp. ex. 7O p. 1).
43. On September 13, 2006, Petitioner emailed Senior Examiner Kozen and District Supervisor asking what time to close the Raeford office and whether to put indicator signs to inform the customers of the office’s closing. Petitioner also stated that she had made daycare arrangements for her children but insisted, “I can not stay very long[.] After 6pm DayCare becomes very pricy [sic] for three children, [s]o please bare [sic] that in mind.” (Resp. ex. 7O p. 3). District Supervisor Elliott informed Petitioner that the offices would not close early and that Petitioner was to report immediately to Aberdeen after closing the Raeford office. District Supervisor stated that the meeting may not even get started until 6:00 p.m. and that whether Petitioner could leave the meeting early would be in the discretion of Chief Salisbury. (Resp. ex. 7O p. 2; T. p. 755). Petitioner emailed a pointed and heated response to District Supervisor Elliott, stating, “Good God all Mighty! Did someone forget that I have children to get? And after hours daycare is pricy [sic]!!! Homework, Dinner, Baths & Bedtime before 8:30 for their Tests of Friday. I know, this is my problem.” (Resp. ex. 7O p. 4). No other employee complained about the meeting, and through the job postings, all driver license examiners know in advance that examiners must be flexible with scheduling and that overnight travel may even be required at times. (T. p. 773).
44. On September 14, 2006, the meeting was held as scheduled, but Petitioner arrived after all other participants had arrived. (T. pp. 568, 712, 879). The Aberdeen office is between a twenty- and thirty-minute drive from the Raeford office. (T. p. 628). The record shows that Examiner Tyndall and Petitioner left the Raeford office at approximately the same time, yet Examiner Tyndall arrived at the Aberdeen office between 5:20 and 5:25 pm. (T. pp. 569-70).
45. Although the time of Petitioner’s arrival was not documented (T. pp. 628, 757), she arrived at approximately 6:00 p.m., later than every other participant in the meeting, including Chief Grady, District Supervisor Elliott, Senior Examiner Kozen, and Examiners Tyndall, Little, Abrams, and Wilhide, notwithstanding the fact that Examiner Wilhide was on vacation at the time. (T. pp. 568-71, 627, 712, 879).
46. When Petitioner arrived at the Aberdeen office, she had her children with her, and she did not immediately join the meeting but instead entered the office through the back door and stayed in the break room with her children. (T. pp. 570, 630, 712, 1111).
47. Chief Salisbury eventually had to ask Senior Examiner Kozen to go to the break room and get Petitioner, and Petitioner ultimately joined the meeting after 6:00 p.m. (T. pp. 570, 627-28).
48. Petitioner later claimed that District Supervisor Elliott had advised her that the meeting would not get started until 6:00 p.m. However, as noted in an email from Senior Examiner Kozen to Darlene Yow (hereinafter “Representative Yow”) (White/female), Employee Relations Representative, Petitioner was corrected and informed that District Supervisor Elliott’s email stated that the meeting “may” not get started until 6:00 p.m.
49. Petitioner expressed frustration that Chief Salisbury had not been informed that Petitioner “ha[d] to pick her children up” from daycare and that he had been allowed to “continue to pace and ask [Examiner Tyndall] what time [Petitioner] had left Raeford.” Having lodged her complaint with Senior Examiner Kozen, Petitioner stated that Senior Examiner Kozen now had five days, per policy, to discuss the matter with her supervisor, District Supervisor Kozen. (Resp. ex. 7O p. 5).
50. Contrary to her statement to Senior Examiner Kozen, Petitioner testified that she did not pick up her children at daycare but that the daycare brought her children to her at the Raeford office. (T. p. 1111).
51. Also, up until the hearing in the instant matter, Petitioner has attempted to justify her arrival at the Aberdeen office by saying that she was told that the meeting would not start until 6:00 p.m. (Resp. ex. 7O p. 5; Resp. ex. 7R p. 3); however, during the hearing on the instant matter, Petitioner testified that she arrived at 5:45 p.m. (T. p. 1111).
52. The undersigned finds as a fact that since Respondents did not specify the exact time for the meeting to begin, the evidence of record does not support a finding that Petitioner arrived late for the September 14, 2006 meeting.
Written Warning – Insubordination and Voter Card
53. On September 26, 2006, twelve days after the office meeting in Aberdeen, Petitioner went to work in the Aberdeen office, and when she arrived, Senior Examiner Kozen told Petitioner that she wanted Petitioner to sit at the desk next to her, which Petitioner had done the previous day. Petitioner refused. Senior Examiner Kozen informed Petitioner that she was instructing Petitioner to sit next to her because Petitioner had claimed “she was being nit picked” and Senior Examiner Kozen, thus, wanted to observe Petitioner’s work. Senior Examiner Kozen told Petitioner that when Petitioner sat next to her yesterday, she did not see where she did anything wrong and in fact thought Petitioner had done a good job. Nevertheless, Petitioner claimed to have “an emergency situation” and that she needed to talk with Chief Salisbury that day. Petitioner then sat at a different desk, not the one at which Senior Examiner Kozen had instructed Petitioner to sit. (Resp. ex. 7R p. 1; Resp. ex. 10B; Resp. ex. 10C; T p. 253).
54. Petitioner admitted that she refused to follow the directive given by Senior Examiner Kozen. (T pp. 59-60, 254-55; Resp. ex. 7R p. 2). By email to Chief Salisbury dated October 2, 2006, Petitioner described Senior Examiner Kozen’s directive as “an attempt to harass, humiliate and ‘put me in my place.’” Petitioner stated that Senior Examiner Kozen had told her, “I have been observing you,” and Petitioner perceived this as being “under surveillance.” Petitioner accused Chief Salisbury of disregarding appointments and leave requests, and that she was being harassed and ignored. Petitioner alleged that “it is plain” that she was being subjected to “Unfair, Biased Treatment, Retaliatory Statements and Discrimination.” She concluded by hoping that Chief Salisbury would “get to the heart of these inconsistencies (lies) and do what is right.” (Resp. ex. 7R pp. 2-3).
55 On October 2, 2006, it was discovered that Petitioner failed to properly issue a voter card in accordance with Respondent’s policy. Specifically, while assisting a customer, Petitioner failed to get the customer’s signature on a voter card and failed to scan and issue the voter card. Petitioner later contacted the customer and made arrangements for the customer to return to the Raeford office in order to sign, scan, and receive the voter card. When questioned about the incident, Petitioner responded that she did not know the proper procedures for the issuance of a voter card; however, Petitioner had received training on this specific issue and Chapter 8 of the Driver License Examiner Manual explained the process for issuing voter cards. (Resp. ex. 10C).
56 On October 24, 2006, Petitioner received a written warning for: (1) insubordination for failing to follow Senior Examiner Kozen’s reasonable directive to sit next to her on September 26, 2006; and (2) unsatisfactory job performance for failing to follow policy on October 2, 2006 with respect to the issuance of a customer voter card. (Resp. ex. 10C).
Second Office Meeting in Aberdeen
57 Because the conflicts in the Raeford and Aberdeen offices continued after the meeting in September arranged by Chief Salisbury, Chief Salisbury sought additional assistant from his supervisors.
58 Thereafter, on October 30, 2006, Tony Spence (hereinafter “Assistant Director Spence”) – then Assistant Director of Driver and Vehicle Services and now Director – emailed the employees in the Aberdeen and Raeford offices – along with District Supervisor Elliot, Chief Salisbury, Director Hurder, Don Ferrier with DOT, and Angela Crawford with DOT – and informed them that he would be conducting yet another mandatory meeting to address the interpersonal discord in the offices. The meeting would be held on November 2, 2006 at 4:00 p.m. during work hours to ensure that everyone would be able to make it and that there would be no complaints about alleged hardships for attending a meeting after 5:00 p.m. (T. pp. 773-75, 880).
59. It was “very unusual” for someone as high up in the agency as Assistant Director Spence to travel approximately one hundred miles to a driver’s license office to attempt to address and resolve interpersonal conflicts. (T. pp. 880-81).
60. Nevertheless, even this attempt by Respondent to resolve the conflicts in Aberdeen and Raeford was unsuccessful.
Discrimination Charge Regarding October 24, 2006 Written Warning
61. On November 18, 2006, Petitioner filed a charge – 07-CRD-0007 – with the Civil Rights Division and EEOC alleging discrimination based upon race and retaliation. (Pet ex. 61).
62. After the filing of the November 18, 2006 EEOC charge was filed, Respondent declared that the portion of Respondent’s written warning related to the voter card should be redacted on the grounds that a white examiner, Examiner Bosworth, had not received a written warning for a similar act but had only received a supervisory note to file. Thus, Respondent redacted the portion of the written warning concerning the voter card. Petitioner also was instructed that her Performance Management Evaluation (hereinafter “PM”) for the cycle ending March 31, 2007 would be adjusted accordingly but that she should contact District Supervisor Franze if she wished to discuss or sign the revised PM. Petitioner never contacted District Supervisor Franze to do so. (Resp. ex. 10A; Resp. ex. 10B).
63. With respect to Charge # 07-CRD-0007, relative to being harassed from April to October 2006 and given a written warning for insubordination, the Civil Rights Division made the following pertinent findings by order dated March 8, 2008:
a) This charge alleged that there was a conspiracy among supervisors and coworkers to hinder Petitioner’s career and she believes her treatment was because of her race, and due to retaliation for having filed previous complaints. (Ex. J-9b p. 2)
b) Petitioner complained of a co-worker using the “N” Word, and that she was required to travel to Aberdeen for re-exam training and in addition had made other e-mail complaints concerning her co-workers and supervisors to management. Ex. J-9b p. 2)
c) The OAH-CRD found that “Charging Party’s allegations do not appear to be related to her race, but rather to the working relationship that she played a part in creating.” (Ex. J-9b p. 7)
d) The OAH-CRD further found that “There is no credible evidence that harassment was present outside the perception of the charging party.” (Ex. J-9b p. 7) (emphasis added).
e) In finding no prima facie case of harassment, the OAH-CRD concluded that at most, Petitioner was in a stressful situation that she helped to create. (Ex. J-9b p. 8).
f) The OAH-CRD did find that the written warning relating to the voter registration card should not have been given to the Petitioner, but that the DMV had already removed it from the Petitioner’s personnel file, therefore “there is no other individual relief available, required, or appropriate.” (Ex. J-9b p. 9) (emphasis added).
Collective Action of Petitioner and Examiner Abrams
64. On December 18, 2006, Examiner Abrams revealed in an email to Petitioner that she had gotten Senior Examiner Kozen flustered. Petitioner responded, encouraging Examiner Abrams and noting her own dissatisfaction with Examiner Tyndall: “AND I’m about to bop Brenda! She’s going on and on about that dang ‘blk light,’” which Petitioner had previously reported missing. (Ex. 26 p. 2).
65. On February 14, 2007, in an email to Examiner Gibson, Petitioner acknowledged that Chief Grady, then the district supervisor, was attempting to resolve the issues in District H and “is getting everybody on the same page.” (Resp. ex. 49-22).
66. On February 15, 2007, Petitioner sent an email to Examiner Abrams in which she outlined her litigation plans against Respondent, which included an itemized list of her alleged “damages.” In the email she stated: “She [sic] just getting to the party, a day late and $250,000 short. By the way…that’s my high figure I’m thinking about asking for. I’ll settle for $150,000. But I’m looking at it from this point of calculation: 31,000 per year for salary (X) 3years = 93,000. Pain and suffering: broken down by the amount of emails for each requests for assistance to upper management and no plyable [sic] response from anyone (4) $14,2500.00 [sic]. The extra 100,000 I might tack on to play with them…if I decide to go to trial, it’s going to be a higher price tag. Provisions: Salisbury, Kozen never to annotate my PM’s. Report only to the new DS, hopefully it’s not Mike Arthur…have to tell about the stink he and I got into. I’ll send you the email.” (Ex. 26 p. 4).
Hiring Lead Examiner
67. Dynamics in the Raeford office did not improve, and in fact, the tension worsened after Examiner Tyndall – who had been a driver license examiner stationed primarily in Aberdeen – was hired as Lead Examiner in Raeford, a position for which Petitioner had applied and been interviewed. (T. pp. 63-64, 459).
68. At the time she was hired, Examiner Tyndall had worked as a driver license examiner for approximately eight (8) years, compared to just over two (2) years for Petitioner. (T. p. 460).
69. When Examiner Tyndall had worked relief in Raeford, prior to being named Lead Examiner, she and Petitioner “worked well together.” They carried on open and collegial conversations on topics ranging from the customers to their children. (T. p. 462).
70. After Examiner Tyndall was hired as Lead Examiner, a position for which Petitioner had applied, Petitioner refused to speak to Examiner Tyndall and would “turn up her nose and just walk right on by” Examiner Tyndall whenever Examiner Tyndall said anything to her, no matter how polite. (T. pp. 462-63).
71. Examiner Tyndall attempted to reason with Petitioner and persuade her that of the importance of communication and a good working relationship, but rather than agree to speak with Examiner Tyndall and be friendly with her, Petitioner would state, “I don’t have to. I just have to come in and do my job.” (T. p. 463).
72. Petitioner ultimately filed discrimination charges against Respondent for failing to hire her as the Lead Examiner.
73. First, with respect to Charge # 07-CRD-0023, regarding the allegation that Petitioner was discriminated against when she did not get the position of lead examiner, the Civil Rights Division made the following relevant findings by order dated March 24, 2008:
a) “The interviews were conducted by a Black female, Brenda Grady, who followed a structured interview process wherein each, candidate was asked the same questions. A written interview record summary was prepared for each applicant highlighting their qualifications, experience and skills.” (Ex. J-8b p. 4) (emphasis added).
b) “Following the conclusion of all the interviews, Respondent selected [Examiner] Tyndall for the position. Respondent’s selected candidate was [Examiner] Tyndall. A review of the Selected Candidate’s qualifications for the position revealed she has an Associate Degree and 7 years 6 months direct experience.” (Ex. J-8b p. 4).
c) “A comparison of [Petitioner]’s qualifications for the position revealed that [Petitioner] completed high school plus some college and 5 years 2 months direct experience.” (Ex. J-8b p. 4).
d) “The Investigation found no evidence that there was a correlation between the denial of the lateral transfer decision in January 2007 and her having filed an employment discrimination charge (07-CRD-0007/14B-2007-00007) against Respondent on November 18, 2006.” (Ex. J-8b p. 5) (emphasis added).
e) “There was no evidence that Respondent’s decision to reorganize the Raeford Office was related to [Petitioner]’s race or her having filed a previous charge of employment discrimination.” (Ex. J-8b p. 5) (emphasis added).
f) Ultimately, the Civil Rights Division found no evidence of discrimination. (Ex. J-8b p. 8).
74. Next, With respect to FEPA Charge # 07-CRD-0047, regarding the allegation that Petitioner was discriminated against because she was not made lead examiner, and instead, Brenda Tyndall, white female, was given this position, and that she was not allowed to transfer to Cumberland County, the Civil Rights Division made the following relevant findings:
a) “Three (3) applicants were considered to be Most Qualified for the Lead Examiner position and Respondent interviewed the following persons: (1) James Gibson (Black/Male), (2) [Examiner] Tyndall (White/Female), and [Petitioner].” (Ex. J-3b p. 5).
b) “A review of the credentials of the 3 applicants that were considered for the Lead Examiner position revealed that James Gibson was a High School graduate with 7 years 6 months with the NC Department of Transportation as a Senior Examiner and Lead Examiner at the DMV office in Laurinburg.” (Ex. J-3b p. 5).
c) “[Examiner] Tyndall has a GED and an Associate Degree of Applied Science in Recreation from Fayetteville Technical Community College. All of [Examiner] Tyndall’s work experience (7 years and 6 months) was with the NC Department of Transportation as a Driver License Examiner at the Aberdeen DMV office.” (Ex. J-3b p. 5).
d) “Both James Gibson and [Examiner] Tyndall have performed the duties of a Senior Examiner. [Examiner] Tyndall acted as Senior Examiner in the absence of Rhonda Kozen, Senior Examiner at the Aberdeen DMV office. Mr. Gibson was previously classified as a Senior Examiner before DOT made the decision to re-classify Senior Examiners to Lead Examiners.” (Ex. J-3b pp. 5, 6).
e) “A review of the evidence revealed that [Petitioner] was not interviewed for a Driver License Examiner position at the Cumberland County DMV office because she was ranked as “Qualified” on her application, dated June 11, 2007, because she did not check the box on her application indicating that ‘she had never been convicted of an offense against the law other than a minor traffic violation.’” (Ex. J-3b p. 6).
f) The Civil Rights Division concluded relative to this charge that there was no reason to believe that the Respondent’s hiring decisions were motivated by race or that North Carolina law was violated. (Ex. J-3b p. 8).
Written Warning – “Commando Raid”
75. On March 5, 2007, Petitioner sent an email all the way up the chain of command, including to Senior Examiner Kozen, Chief Salisbury, and Director Hurder. (Resp. ex. 9 p. 4; T. pp. 262).
76. Petitioner testified that this email was “addressing the professional respect [Senior Examiner Kozen] afford [Examiner] Wilhide and did not afford me.” (T. p. 263).
77. Petitioner alleged in her email that on February 28, 2007, Senior Examiner Kozen and Examiner Tyndall “conspired” to send Examiner Little – who had been filling in for Petitioner in the Raeford office while Petitioner was out of the office – back to the Aberdeen office so that Senior Examiner Kozen and Examiner Tyndall could conduct a “commando raid” on the Raeford office, “scouring through the files to look for some form of written warning material to use to continue with this racist harassment and retaliation.” Petitioner alleged that when she returned to the office, she found files missing and the office furniture rearranged. Petitioner complained about the arrangement of the furniture and particular the location of a table, stating, “I have hit my knee several times trying to get into the safe.” Petitioner claimed Senior Examiner Kozen had not responded to her requests to move the table, and that Senior Examiner Kozen never makes accommodations for her. (Resp. ex. 9 p. 4; T. pp. 264-66).
78. Although Senior Examiner Kozen informed Petitioner that by rearranging the office furniture, she was not conspiring in a commando raid but rather was acting on a directive given to her. Nevertheless, Petitioner insisted that it was a personal attack against her, stating “I have done nothing to deserve this disrespectful discriminatory treatment being the African-American or, as put on my last PM written by [Senior Examiner] Kozen, black. Black is a color and not a description of an ethnic group or people. As God is my shield and my protector, I will press on up the chain of command until this blatant racism and disrespectful harassment ceases.” (Resp. ex. 9 p. 4; T. pp. 266-67).
79. Petitioner concluded her email, “Respectfully submitted, Psalms 91:2.”[1] (Resp. ex. 9 p. 4; T. p. 67).
80. Thereafter, Petitioner was advised to refrain from any further sarcastic, suggestive, derogatory, or rude comments, and was reminded that Respondent has a right to maintain a harmonious and productive work environment free from disruptive and inconsiderate behavior. Also as a result of her Petitioner’s accusations and the disrespectful tone of her email, Petitioner received a written warning for conduct unbecoming a State employee detrimental to State service and conduct for which no reasonable person should expect to receive a warning prior to disciplinary action. (Resp. ex. 9 pp. 1-3; Ex. J-7B p. 4).
81. On Aril 11, 2007, Petitioner was presented with her PM, which included several “Below Good” scores, and Petitioner filed a discrimination charge with the Civil Rights Division.
82. With respect to Charge # 07-CRD-0032, regarding the allegation that Petitioner was discriminated against due to receiving 4 below goods on her performance management plan, the Civil Rights Division made the following relevant findings in an order dated April 3, 2008:
a) Petitioner was issued a written warning for misconduct. Added to the written warning was an issue of her failure to have a customer sign a voter card. An issue that was handled with other employees in the past by a “note to file.”
b) In addition, the Civil Rights Division found that Petitioner should not have been given the below good ratings for her failure to have a customer sign a voter card.
83. After the Civil Rights Division’s finding of cause, Respondent redacted the written warning in Petitioner’s file to take out the portion relating to the voter card, and also removed the below good ratings relating to the voter card.
84. Additionally, Petitioner withdrew from a conciliation attempt relative to this issue. (Ex. J-7d pp. 1, 2; T. p. 1096).
Office Conflict in Spring 2007
85. Also in the spring of 2007, there developed issues in the Raeford office concerning the thermostat and the temperature in the office.
86. On April 24, 2007, Petitioner arrive for work and after ignoring Examiner Tyndall and failing to respond to Examiner Tyndall’s greeting, Petitioner “walked straight to the thermostat and turned on the heat.” Examiner Tyndall suggested keeping the thermostat at 70 degrees as a compromise. (Resp. ex. 13 p. 1; T. p. 514). Less than five minutes after Examiner Tyndall turned the thermostat to 70, Examiner Tyndall re-checked the thermostat and observed that it had been raised to 72 degrees; Examiner Tyndall informed Senior Examiner Kozen, “I can live with that.” (Resp. ex. 13 p. 2; T. pp. 514-15). However, after Examiner Tyndall returned from lunch, she observed that Petitioner had re-set the thermostat to 80 degrees; Examiner Tyndall informed Senior Examiner Kozen, “I am trying to be fair and make it comfortable at 72.” (Resp. ex. 13 p. 3; T. p. 515).
87. Thereafter, Senior Examiner Kozen ordered that the thermostat remain set at 72 degrees. (T. p. 470). However, Petitioner continued to adjust the thermostat upwards. (T. pp. 470-71). On May 1, 2007, Examiner Tyndall informed Senior Examiner Kozen that Petitioner had again “cranked up” the thermostat to 80 degrees (Resp. ex. 13 p. 4; T. p. 515), and on May 3, 2007, Petitioner twice moved the thermostat from 72 degrees to above 76 degrees. (Resp. ex. 13 p. 5; T. pp. 515-16).
88. Eventually, District Supervisor Franze and Chief Grady were forced to step in, and after inquiring with Building Maintenance officials, Chief Grady learned that the temperature in all State buildings is to be set at 72 degrees. (T. pp. 938-39). Thereafter, District Supervisor, per Chief Grady’s instruction, had a note placed on the thermostat instructing “that the temperature is to stay on seventy-two degrees and not [to] be moved off of that per [District Supervisor] Franze.” (T. pp. 471, 939).
89. District Supervisor Franze and Chief Grady ultimately were able to resolve the matter, and Petitioner ceased altering the temperature. (T. pp. 787, 939-40).
90. Also about this time, an issue arose in which Petitioner was short $16.00 at the end of the workday on May 7, 2007 and was unable to locate a $16.00 check. Petitioner contacted the customer and insisted that the customer return with another check. (Resp. ex. 13 p. 6).
91. The following day, on May 8, 2007, Trina Bosworth (hereinafter “Examiner Bosworth”) informed Examiner Tyndall that she had found the check in Petitioner’s desk and that Petitioner had told her not to tell Examiner Tyndall. (Resp. ex. 13 p. 7; T. p. 787, 827). When District Supervisor Franze asked Petitioner about the check, Petitioner claimed she found it and alleged “that there was evil at work in that office.” (T. p. 827).
92. From May to July, the relationship between Petitioner and Examiner Tyndall continued to sour. Petitioner refused to talk to Examiner Tyndall, even when Examiner Tyndall would say “Good morning” or “Have a good lunch.” (T. pp. 464-68; Resp. ex. 13 pp. 9-25).
93. When Petitioner returned to Examiner Tyndall the money she used to make change, Petitioner initially laid the money on a table and failed to inform Examiner Tyndall. After being told by Senior Examiner Kozen not to leave money out like that, Petitioner began placing the money in a money bag. However, Petitioner would not fold and sort the money as requested by Examiner Tyndall, and eventually, Petitioner began wadding up the money and stuffing the bills in the bag.
94. In June 2007, Examiner Bosworth witnessed Petitioner slam the office telephone down while talking to Senior Examiner Kozen. Examiner Bosworth – who noted that Petitioner was “very rude” towards members of management – explained that Senior Examiner Kozen had called the office that morning and asked to speak with Petitioner. Petitioner “was very rude and short” with Senior Examiner Kozen and she argued with Senior Examiner Kozen. Examiner Bosworth watched as Petitioner “proceeded to slam the phone down. I thought she – I mean she slammed it so hard, I thought she might have broke[n] the phone.” Examiner Bosworth had heard Petitioner say “good-bye” in the past, but heard no such parting words during this conversation. (Resp. ex. 37; T. p. 933).
95. After slamming the phone down on her immediate supervisor, Petitioner left the office and went to her car for a few minutes. Senior Examiner Kozen called back while Petitioner was outside, and when Petitioner returned, Examiner Bosworth told her that Senior Examiner had called. Petitioner then went into the back office and called Senior Examiner Kozen. There was a customer at Examiner Bosworth’s desk at the time, and they both could hear the phone conversation coming from the back office as Petitioner was “fussing and raising her voice at Senior [Examiner] Kozen” and “was hollering so loud at [Senior Examiner Kozen].” The customer asked whether he should leave, but Examiner Bosworth told him to just continue with his test.
96. After Petitioner got off the phone, she returned to her desk, and started relaying the situation to Examiner Bosworth, but Examiner Bosworth stated that she did not want to be involved.
97. Petitioner then called Examiner Gibson at the Laurinburg office. Examiner Bosworth could hear Petitioner talking about Senior Examiner Kozen and telling Examiner Gibson, “You see where Doug [i.e., District Supervisor Elliott] is [--] he’s not here anymore, and Mike [i.e., Chief Salisbury] is no longer our zone chief. Two down and one to go.” (Resp. ex. 37; T. pp. 921, 926-29).
The “Liar” Incident
98. On July 3, 2007, Petitioner and Examiner Tyndall got into an altercation wherein Examiner Tyndall called Petitioner a “liar.”
99. Specifically, Examiner Tyndall waited on a customer who brought his daughter in for a Level One permit. The customer had been waiting for a significant amount of time because the office’s equipment had been down, and when he finally sat down at Examiner Tyndall’s workstation, the daughter did not have her birth certificate. Examiner Tyndall explained that she could use a school transcript signed by a school official in lieu of the birth certificate. The customer agreed and left the office to obtain a transcript. (T. pp. 474-80; Resp. ex. 18H; Resp. ex. 56 p. 98).
100. When the customer and his daughter returned later in the afternoon, they had the transcript in a sealed envelope, and although the transcript was unsigned, the envelope was stamped and signed by the school principal. Examiner Tyndall thus agreed to let the daughter take the test. The customer’s daughter did not pass. (T. pp. 474-80; Resp. ex. 18H; Resp. ex. 56 p. 98).
101. When they returned on July 12, 2007, they were seen by Petitioner. Petitioner allowed the customer’s daughter to take the test and she passed. However, while Examiner Tyndall was taking a photograph of another customer, Petitioner approached Examiner Tyndall and, holding up the transcript, stated, “You took this and it’s not signed.” (T. pp. 474-80; Resp. ex. 18H; Resp. ex. 56 p. 98).
102. Examiner Tyndall attempted to explain to Petitioner that ordinarily she would not have accepted the unsigned transcript, but because it had been in the signed and stamped envelope, she permitted it. Petitioner criticized Examiner Tyndall in a loud voice in front of the customers, and accused Examiner Tyndall of not following policy. Petitioner returned to her workstation, and in the comments section of the customer’s daughter’s record, Petitioner wrote that Examiner Tyndall had not acted in accordance with policy but that Petitioner had issued the permit out of concern for customer service. (T. pp. 474-80; Resp. ex. 18H; Resp. ex. 56 p. 98).
103. It is Respondent’s policy that putting comments into a customer’s record is optional but not required, and if comments are written, negative comments about other examiners are not to be included.
104. When writing the comments, Petitioner did not include the reason Examiner Tyndall had given for accepting the unsigned transcript. (Resp. ex. 13 pp. 18-19). Examiner Tyndall saw and read the comments, and approached Petitioner, stating, “If you’re going to put in comments under it, why didn’t you put the whole truth about what was said to you?” Petitioner responded, “I did tell the truth.” At that point, Examiner Tyndall told Petitioner, “You’re a liar.” Examiner Tyndall proceeded to call Petitioner a “liar” three times in the presence of customers. (T. pp. 474-80; Resp. ex. 18H; Resp. ex. 56 p. 98).
105. Later that day, Petitioner and Examiner Tyndall wrote their statements concerning the incident. (Resp. ex. 18H pp. 2-3).
106. Petitioner wrote a statement of the incident and emailed it to Senior Examiner Kozen and carbon-copied District Supervisor Franze and Chief Grady. In her statement, Petitioner stated, “I have been treated unfairly in the past and this is just a continuation of that retaliation.” (Resp. ex. 18H p. 2).
107. Examiner Tyndall sent her statement to Senior Examiner Kozen, who in turn forwarded the statement to District Supervisor Franze and Chief Grady. In her statement, Examiner Tyndall admitted calling Petitioner a liar three times and admitted that she was wrong for accepting the unsigned transcript in the first place. Examiner Tyndall did not deny Petitioner’s allegations against her. (Resp. ex. 18H p. 3)
108. Thereafter, Petitioner accused Respondent of failing to investigate and take action against Examiner Tyndall. (Resp. ex. 56 p. 98). The day after the “liar” incident, Petitioner emailed members of management all the way up to Assistant Director Spence, who informed Petitioner that both District Supervisor Franze and Chief Grady were on vacation, but that Chief Grady would return the following Monday, July 16, 2007 and that someone would respond to Petitioner’s complaint.
109. When Chief Grady returned, she spoke with District Supervisor Franze and Senior Examiner Kozen, and instructed them to get statements from both Examiner Tyndall and Petitioner. (T. pp. 941-43). However, as Petitioner was informed, Chief Grady, or other members of Respondent’s management, was not permitted to divulge Examiner Tyndall’s personnel information to Petitioner (Resp. ex. 56 p. 98), and in fact, as a result of the “liar” incident, Examiner Tyndall had received a written warning on July 26, 2007. (T. pp. 474-80).
110. Petitioner filed a discrimination charge as a result of the “liar” incident. (Ex. J-6B)
111. With respect to FEPA Charge # 07-CRD-0035, regarding the allegation that Petitioner was discriminated against due to an incident wherein a co-worker called her a “liar,” the Civil Rights Division made the following relevant findings:
a) “Examiner [Tyndall] discovery of [Petitioner]’s comments resulted in her having an altercation with [Petitioner] where she presented [Petitioner] with the printed examiner comments which [Petitioner] had typed into the computer system and stated three times to her in front of customers ‘You are such a liar!’” (Ex. J-6b p. 3).
b) “On July 26, 2007, Respondent issued Examiner [Tyndall] a Written Warning for inappropriate Personal Conduct relating to two reasons: (1) Repeatedly calling a co-worker a “liar” in the presence of customers in the workplace. (2) Failure to follow proper procedure in obtaining a required signature on an official transcript.” (Ex. J-6b p. 3).
c) “On July 26, 2007, Ms. Brenda Grady (Black/Regional Chief Examiner) issued a memo to Examiner [Tyndall] and [Petitioner] which both parties agreed to the following:
1.You are to discontinue making rude, sarcastic, embarrassing unprofessional and accusing comments to each other in the presence of customers.
2. You are to discontinue confrontations on acceptable documents, if there is a problem with a document contact, Senior Examiner Kozen. If she is unavailable, please contact Joe Franze, District Supervisor. 3. You are to discontinue making comments to customers about each others
4. You are to discontinue making facial, hand or eye expressions to one another or to a customer regarding one another during work hours.
5. You are to discontinue calling from office to office on State phones unless business related. This should eliminate calls to other offices and personnel to discuss your personal business and issues about co-workers, signed agreeing to discontinue making rude, sarcastic, embarrassing, unprofessional and accusing comments to each other in the presence of customers.”
(Ex. J-6b p. 3).
d) “An Investigative Interview with Ms. Brenda Grady revealed that management was proactive after the July 12, 2007 incident, when Examiner [Tyndall] called [Petitioner] a liar. Ms. Grady stated that all of the senior administrators agreed that a written warning should be administered to Examiner [Tyndall]. Ms. Grady stated that [Petitioner] had never complained to her about harassment prior to the July 12, 2007 incident.” (Ex. J-6b p. 5).
e) Ultimately, the Civil Rights Division concluded that this was a minor incident and one in which Respondent had moved swiftly and reasonably, and that no harassment or violation of State law occurred. (Ex. J-6b p. 6).
112. The undersigned finds the FEPA #07 CRD-0035 discrimination charge filed by Petitioner to be without merit.
Written Agreement Signed by Petitioner and Examiner Tyndall
113. Thereafter, Chief Grady attempted to resolve the personality conflicts in the Raeford and Aberdeen offices, principally between Examiner Tyndall and Petitioner.
114. On July 26, 2007 – the same day that Examiner Tyndall received a written warning for the “liar” incident – Chief Grady visited the Raeford office and had both Petitioner and Examiner Tyndall read, sign, and date identical agreements dated July 25, 2007.
115. The agreement provided as follows:
Effective Immediately:
1. You are to discontinue making rude, sarcastic, embarrassing,
unprofessional and accusing comments to each other in the presence of customers.
2. You are to discontinue confrontation on acceptable documents. If there is a problem with a document contact Sr. Kozen. If she is unavailable, please contact Joe Franze, District Supervisor.
3. You are to discontinue making comments to customers about each other.
4. You are to discontinue making facial, hand or eye expressions to one another or to a customer regarding one another during work hours.
5. You are to discontinue calling from office to office on state phones unless business related. This should eliminate calls to other offices and personnel to discuss your personal business and issues about co-workers.
Driver License examining personnel shall conduct themselves at all times, both on and off duty, in such a manner as to reflect most favorably upon the Division of Motor Vehicles in keeping with the highest professional standards.
Failure to comply with the above may result in disciplinary action.
I acknowledge that I have read the above statements and each has been explained thoroughly.
Date:_________________________________
(Resp. ex. 14C; Resp. ex. 14D; T. pp. 947-49).
116. Chief Grady had Examiner Tyndall and Petitioner sign this agreement in an attempt to address “all the friction and the problems that were occurring in that office between [Petitioner] and [Examiner] Tyndall, including the “e-mails [sent] constantly about some situation, some problem.” (T. p. 947).
117. Chief Grady chose to do something in writing in order to demonstrate, “We mean business. We want you to stop this. You’re supposed to be here serving our customers in a professional manner. You’re supposed to be able to work together.” (T. p. 948).
118. During her visit to the office, Chief Grady explained the documents to both Examiner Tyndall and Petitioner and “read it word for word to them.” (T. p. 949).
119. Examiner Tyndall got emotional during the meeting and stated that Petitioner did not want her to even speak to Petitioner. Chief Grady asked Petitioner if that was true, and Petitioner said it was. Petitioner stated she did not want Examiner Tyndall to speak to her at all: “No, not anybody that called me a liar.” (T. pp. 949-50). Petitioner insisted that unless it was about business, she did not want Examiner Tyndall to say anything to her, not even “good morning.” (T. p. 950). Petitioner’s statements, which demonstrated an unwillingness to cooperate with Examiner Tyndall, were unreasonable.
July to September 2007
120. For the next couple of months, the dynamics between Petitioner and Examiner Tyndall was better. However, although the number of problems between Petitioner and Examiner Tyndall seemingly diminished, Petitioner nevertheless demonstrated difficulty working with other examiners.
121. For example, on August 17, 2007, Petitioner emailed Examiner Bosworth to “thank” Examiner Bosworth for correcting Petitioner’s error and noting “I, too[,] repaired one of your errors this date.” Examiner Bosworth responded, “Thank you as well [Petitioner]. As examiners it is our job to do the best we can and help each other as much as possible. That is a part of teamwork and working together. None of us are perfect and I for one do not claim to be. I am only human as we all are. On another note unless it is something of an urgent matter I would appreciate no emails. It is distracting and I have a job to do. I don’t have time to email back and forth concerning minor things.” Petitioner responded, “So true, I too have no time to waste on mole-hills that people make as mountains. Apparently you felt the need to respond, so no need to do so if there is a future, just thought you might want to know, in case. Be blessed!” Examiner Bosworth thereupon advised Senior Examiner Kozen by email, carbon copying Petitioner, that she desired to make a complaint against Petitioner: “I simply responded to [Petitioner] in a nice way, and asked for no emails distracting me from my work concerning minor things. Within 30 minutes I had another email distracting me from my work. I could not make any sense out [of] the email.” Petitioner emailed Senior Examiner Kozen, stating that she too would like to file a complaint: “I advised [Examiner Bosworth], so no need to respond in the future, and she has done so, asfter [sic] I asked her not to.” Senior Examiner forwarded the email chain to District Supervisor Franze, stating, “FYI here’s what[’]s going on today!” (Resp. ex. 18L).
122. On September 11, 2007, Petitioner took her lunch break at 12:30 p.m. and did not return until 1:35 p.m., whereupon she slowly counted her money for five minutes. As a result, Examiner Tyndall was not able to leave for her lunch break until 1:40 p.m., and nearly missed a 2:30 p.m. appointment. As Examiner Tyndall summarized to Senior Examiner Kozen, “[Petitioner] does something every single day to try to upset me!” (Resp. ex. 16E).
Events of September 12, 2007
123. At approximately 1:00 p.m., Examiner Tyndall had a customer at her desk whose daughter was at the office to obtain a permit. The customer had not been licensed long enough to serve as her daughter’s supervising driver, but she indicated that Petitioner had stated that the minor’s father could come to the office after he got off work to sign as the supervising driver. Examiner Tyndall informed the customer that the supervising driver had to be present when the permit was issued, but the customer insisted that Petitioner had told her otherwise. As Petitioner was walking back to her desk from another part of the office, Examiner Tyndall approached her and asked if she had, in fact, discussed this matter with the customer. Petitioner leaned forward and snapped at Examiner Tyndall, “What?! What are you talking about?” Examiner Tyndall attempted to explain the situation to Petitioner, and eventually “just let [Petitioner] and the mother talk. The mother went to [Petitioner]’s desk and [Petitioner] told her that the father had to be present.” Examiner Tyndall observed that the daughter was upset, and watched as the mother and daughter departed the office. Afterwards, Petitioner left her desk to place her money in the safe, which is in a small closet in the office. Examiner Tyndall informed the waiting customers that she would be back in a moment, whereupon she walked into the closet behind Petitioner. (Resp. ex. 21B; Resp. ex. 21C).
124. This Court finds that the credible and competent evidence demonstrates that Examiner Tyndall was behind Petitioner, who was bent over attempting to place money in the safe, and quietly called Petitioner’s name. Petitioner has at various times denied and other times admitted recognizing Examiner Tyndall’s voice. (Compare Resp. ex. 56 p. 56, and T. p. 296, with T. p. 104). Considering Petitioner and Examiner Tyndall worked together and usually were the only two individuals in the office, there is no merit in Petitioner’s contention that she did not recognize Examiner Tyndall’s voice. (Resp. ex. 21B; Resp. ex. 21C).
125. When Petitioner turned around, Examiner Tyndall stated either “Do not speak or act ugly to me in front of the customers anymore” or “Don’t ever get snotty with me in front of a customer.” (Resp. ex. 21B; Resp. ex. 21C). Petitioner’s written statement submitted to her superior on September 13, 2007 was that “Examiner Tyndall got close to the right ear and startled me with her angry voice teeth clinched together, “don’t ever get snotty with me in front of a customer.” Pet. ex. 55)
126. Petitioner contends that Examiner Tyndall was pointing her finger in Petitioner’s face. Examiner Tyndall contends that she had her finger pointed upward in front of her body, just below her chin, as she often does when trying to make a point. Either way, Petitioner responded by vehemently stating and repeating several times, “Get your finger out of my face.”
127. Petitioner stated that she made the statement loud enough to be heard by the three customers in the office. Examiner Tyndall responded that her finger was not in Petitioner’s face, and she explained in the written statement she made the day that she was over two feet away from Petitioner at the time. (Resp. ex. 21B; Resp. ex. 21C; Pet. ex. 54).
128. At this point, the accounts of the incident diverge further, as Examiner Tyndall contends that (a) Petitioner charged toward her and shoved her back with her forearm, (b) she told Petitioner, “Don’t touch me,” (c) Petitioner shoved her with her forearm again, and (d) she turned and walked out of the closet. (Resp. ex. 21C). Petitioner, on the other hand, contends that (a) she reached for the interior closet door handle and Examiner Tyndall reached for the exterior closet door handle, (b) the closet lights were off, (c) Examiner Tyndall tried to close and lock Petitioner in the closet, (d) a struggle ensued over the door, and (e) Examiner Tyndall did an about-face and walked away. (Resp. ex. 21D; Resp. ex. 56 p. 61; T p. ).
129. Portions of Petitioner’s version of the closet incident is not credible based upon, inter alia, the following:
a. First, the closet at issue can be opened from the interior, regardless of whether the door handle is locked. (T. pp. 326-27).
b. Also, the light switch for the interior of the closet is inside the closet near the doorway. Petitioner has claimed she did not know where the light switch was located (Resp. ex. 56 pp. 75, 77); however, the Raeford office is small and Petitioner went into this closet every day for over two years. In fact, during her deposition, Petitioner testified that she returned to the closet later this same day and “turned on the lights.” (Resp. ex. 56 pp. 75, 76).
c. Even assuming arguendo that the lights in the closet were off at the time, the closet would not been completely dark since (a) an emergency overhead light is always on directly outside the closet, (b) a lighted “Exit” sign is always on outside the closet door, and (c) there was ample natural light flooding the office through the multiple windows on the face of the building. (T. pp. 293, 724). Petitioner acknowledged during her deposition that the lights were on in the hallway during the events at issue and that there was “enough outside lighting” for her to operate the combination of the safe. (Resp. ex. 56 pp. 56, 61).
d. In addition, Petitioner stated in her deposition that she had already put the money in the safe and only had to shut the safe door when Examiner Tyndall entered the closet. (Resp. ex. 56 pp. 54-55). During the hearing, however, Petitioner’s vivid description of the allegedly traumatic event changed, and she testified before this Court that she had only just opened the safe door and had not yet placed the money inside. (T. pp. 104, 106). On cross-examination, Petitioner acknowledged that her depiction of the sequence of the events had changed. (T. pp. 294-95).
130. Petitioner has admitted that at no point during this encounter did Examiner Tyndall harm, touch, or threaten to touch her. (Resp. ex. 56 p. 58; T. p. 316).
131. Petitioner has claimed that after Examiner Tyndall left the closet and returned to her workstation, Petitioner remained in the closet with the lights off for approximately three or four minutes, belying her contention that she was afraid of being in a dark closet and that she since has been afraid of the dark. In fact, Petitioner finished the job for which she originally went into the closet – “I turned around and I locked the safe, and put the dial back on close to zero.” (Resp. ex. 56 p. 62-63).
132. Petitioner then exited the closet and went to the back office and closed and locked the door. (T. pp. 106-07).
133. As demonstrated by the blueprint of the Raeford office and the testimony of the witnesses, Petitioner had to walk past Examiner Tyndall – coming within mere feet of the person Petitioner alleges assailed her – in order to get to the back office. (Resp. ex. 27).
134. Although Petitioner locked herself in the back office because she “didn’t feel safe” (Resp. ex. 56 p. 63), Petitioner acknowledged that Examiner Tyndall possessed a key to the back office and that Examiner Tyndall, thus, could have accessed the back office if she had so desired. (Resp. ex. 56 p. 92).
135. The undersigned finds that no matter whether Petitioner or Examiner Tyndall was more truthful in their recollection of the conflicting accounts of the closet incident, these two state employees engaged in heated an exchange which was disruptive to the expected calm and civility of the workplace. Respondent rightfully issued a warning to both regard to race or other prohibited reason.
136. At approximately 1:15 p.m., Chief Grady received a call from Senior Examiner Kozen, who stated that she had just received a call from Petitioner and that Petitioner “was upset and hysterical.” Senior Examiner Cozen had attempted to calm Petitioner down and told her to go to lunch and come back afterwards, and that Senior Examiner Cozen would look into the matter. (Resp. ex. 56 pp. 67, 70). After instructing Petitioner to go to lunch, Senior Examiner Cozen relayed Petitioner’s version of the closet incident to Chief Grady and informed Chief Grady that Petitioner stated “that she was scared to be around [Examiner Tyndall] and . . . that she was not going to be able to come back to work.” (Resp. ex. 30 p. 1).
137. Chief Grady then contacted District Supervisor Franz and advised him of the situation and asked him to contact Senior Examiner Cozen as well as Examiner Tyndall and Petitioner to find out what had transpired. Chief Grady further told District Supervisor Franz to obtain written statements from both employees and to advise them that the matter would be investigated. Finally, Chief Grady told District Supervisor Franz to instruct Petitioner to remain at work because they did not have relief that they could send to the Raeford office on such short notice. (Resp. ex. 30 p. 1).
138. When Chief Grady spoke with District Supervisor Franz shortly thereafter, he stated that he had spoken with Senior Examiner Cozen and Examiner Tyndall but had only been able to leave a message on Petitioner’s home phone requesting that she call him. (Resp. ex. 30 p. 2).
139. When her lunch break was over, Petitioner returned to the Raeford office and once again locked herself in the back office. Petitioner called District Supervisor Franze and advised him that she had returned to the office. Petitioner testified that she only returned to the office so that she could turn in her money and account for her paperwork. Petitioner acknowledged someone else could have handled these tasks, but stated that she had the only key to access her money and paperwork. She also acknowledged that she could have simply left the key at the office before she left for lunch if she truly desired not to return to the office, but she stated she did not think of this option. While speaking with District Supervisor Franze, Petitioner told him that there was “no way” she could work. District Supervisor Franze insisted that Petitioner write a statement of the events before she left. Petitioner did not write the statement because there was no computer in the back office; however, she could have hand-written a statement. Petitioner also stated that she could not write a statement because she was not mentally and emotionally capable of doing so. However, Petitioner did call the Respondent’s Help Desk, Senior Examiner Kozen, District Supervisor Franze, and Chief Grady. (Resp. ex. 56 pp. 68-74; T. pp. 311-12).
140. Sometime after her conversation with District Supervisor Franze ended, Petitioner called Chief Grady and told her about the incident. During her deposition, Petitioner stated that the conversation with Chief Grady lasted approximately thirty (30) minutes; during the hearing, Petitioner testified that it lasted “forty-five (45) minutes, maybe longer.” In addition to discussing the closet incident, Petitioner and Chief Grady discussed various office matters, including procedures related to the issuance of driver licenses to sex offenders. Although Petitioner has testified that she lacked the capacity to write a statement, she admitted that she had the capacity to discuss various work-related issues wholly unrelated to the closet incident. (Resp. ex. 56 pp. 74; T. pp. 313-14).
141. Additionally, after speaking with Chief Grady, Petitioner returned to the closet at issue to retrieve her money. Although Petitioner has claimed at various times that she did not know where the lights were – and thus was afraid of being closed in the closet by Examiner Tyndall, during Petitioner’s deposition, she expressly testified: “I had to go to the closet to get the monies out and turned on the lights.” (Resp. ex. 56 p. 75) (emphasis added). Petitioner further testified at her deposition as follows:
Q: Where was the light switch?
A: (No response)
Q: Where was the light switch?
A: I really don’t know whether it’s inside. There’s a group of lights that work the outer lights, and then there’s a light switch inside the closet that work the light – excuse me – outside the perimeter.
Q: Which ones did you turn on?
A: I don’t know which ones I turned on. I just turned on whatever was in there. I took the monies out, went to the back office and counted the monies.
142. (Resp. ex. 56 p. 75) (emphases added).
143. After retrieving her money from the safe, Petitioner returned to the back office, locking herself in, and counted her money. (T pp. 315-16). Petitioner claimed during her deposition that she never returned to her workstation on September 12, 2007 after the closet incident. (Resp. ex. 56 p. 76). However, during the hearing Petitioner stated that she returned to her workstation to count her money (T. p. 314), and Examiner Tyndall stated that Petitioner did, in fact, return to her workstation after making phone calls from the back office. (T. p. 499).
144. This Court finds that parts of Petitioner’s account of the events up to, including, and following the alleged “closet” incident not credible.
145. Petitioner ultimately filed a discrimination charge
146. With respect to FEPA Charge # 08-CRD-001, with respect to numerous instances of allegations of harassment and being disciplined because of her race and in retaliation for having filed other charges, the Civil Rights Division made the following pertinent findings:
a. “[Petitioner] stated during the initial interview that there are many times that she does not speak to [Examiner] Tyndall when she arrives for work. [Petitioner] stated that it would be nice if she spoke each day, but she does not always do so.” (Ex. J-2b p. 3).
b. “Upon investigation of the incident involving [Examiner] Tyndall on September 12, 2007, the Respondent took prompt and appropriate action in accordance with State policy.” (Ex. J-2b p. 6).
c. “Both Black and White employees have been disciplined for the same or substantially similar reason.” (Ex. J-2b p. 6).
d. Relative to this charge the Civil Rights Division concluded: It appears that the “[Petitioner] is challenging the ‘ordinary tribulations of the workplace’ which are not viewed as harassment by the Courts.” The report concluded there were no violations of the North Carolina General Statutes or of Title VII. (Ex. J-2b pp. 8, 9) (emphasis added)
No Incidents Between September 12 and September 17, 2007
147. On September 13, 2007, the day after the closet incident, Petitioner did not work in the Raeford office. Instead, Petitioner attended a full-day diversity training seminar in Fayetteville offered by Respondent. (T. p. 322).
148. Prior to the seminar, at 7:06 a.m. on the morning of September 13, 2007 – the day after the closet incident – Petitioner emailed her statement to Chief Grady regarding the closet incident. (Resp. ex. 21C, P. ex. 55)
149. Approximately one hour later, at 8:25 a.m., Petitioner sent another email to Chief Grady, “reflecting” on her conversation with Chief Grady the previous day and alleging that Chief Grady was “going to be biased in this ‘investigation.’” Petitioner also stated that she had “done nothing wrong to be moved,” which is contrary to her claim during her deposition, wherein she stated that she asked to be moved. (Resp. ex. 56 p. 80). Petitioner brought up the “liar” incident and alleged that no investigation had been done and no action taken against Examiner Tyndall, when in fact Examiner Tyndall had received a written warning. Petitioner further accused Chief Grady of failing to see “the Bigger picture” and of trying to pin responsibility on Petitioner for any conflict. She concluded the email by saying, “I am standing firm on what I know is the truth. Those that are helping Examiner Tyndall to perpetuate and continue with this sort of behavior will also be brought in light. I trust HIM, that he will bring it all to the light and not these behind the scene ‘investigations.’” (Resp. ex. 21D).
150. Chief Grady responded to Petitioner and requested that Petitioner reflect more accurately on the conversation on September 12, 2007 and reiterated that any personnel action taken against others would not be shared with Petitioner. (Resp. ex. 21E).
151. After returning from her seminar later in the day, Petitioner emailed Chief Grady and quoted statutes to her. “In Diversity training this date, I learned some very valuable tools. I understand what GS 126-17 entails, unlawful workplace harassment (such as Examiner Tyndall had no right to follow and accost me in the closet). . . . I learned about liability, lawsuits, the judicial system, lawyers and the impact they have on the states [sic] ability to make necessary corrections.” Petitioner also accused Chief Grady of being part of the “racial biases” against Petitioner. Chief Grady and Petitioner are the same race. Petitioner ultimately agreed to return to work the following day, but agreed to do so only “for my customers,” not for Chief Grady. Finally, Petitioner claimed that she has “Uncommon Favor” and instructed Chief Grady that if she did not know what “Uncommon Favor” meant then she needed to call Petitioner’s minister and he would explain it. (Resp. ex. 21F; T. pp. 323-25).
152. The following day, on September 14, 2007, Petitioner returned to the Raeford office, and it is undisputed that Petitioner and Examiner Tyndall worked the entire day without incident. (T. pp. 121-22, 327, 725, 840, 972). In fact, Petitioner and Examiner Tyndall worked at workstations that were within six feet of each other. (T. p. 327).
153. District Supervisor Franze called the Raeford office twice that morning and spoke with both examiners to ensure that there were no lingering problems from the closet incident two days prior. (T. p. 838; Resp. ex. 3A). District Supervisor Franze explained that the situation seemed normal, that “[t]hey were both professional and doing their jobs,” and that he received no customer complaints that day. (T. p. 840).
154. Additionally, during the course of the workday on September 14, 2007, Petitioner returned to the closet at issue, the situs of the alleged traumatic event. (T. pp. 326-27).
155. Although Petitioner testified that she locked herself in the closet for “security and safety,” Petitioner admitted that she left the closet simply by opening the door handle, demonstrating her awareness that it was impossible to be locked inside the closet, contrary to her early allegations. Furthermore, Petitioner acknowledged that Examiner Tyndall had a key to the closet so, much like the situation with the back office, Examiner Tyndall could have accessed the closet with Petitioner in it if she had so desired. (T. pp. 326-27).
156. Although Petitioner contends that the events of September 12, 2007 were traumatic, at no time during the weekend of September 15 and 16, 2009 did Petitioner contact either of her immediate supervisors – Senior Examiner Kozen or District Supervisor Kozen – (T. pp. 725-56; 840) and the record contains no evidence that she attempted to contact any other supervisor or co-worker that weekend.
157. Petitioner also at no time during the weekend went to a doctor or therapist. (Resp. ex. 56 p. 97).
158. Petitioner was unable to remember any other specific events – out of the ordinary or otherwise – from the weekend of September 15 and 16, 2009. (Resp. ex. 56 p. 85; T. pp. 327-38).
Planning to Transfer Petitioner to Fayetteville
159. While Petitioner and Examiner Tyndall worked together without incident on September 14, 2007, Respondent’s management made plans to separate the two examiners.
160. District Supervisor Franze researched the distances to various offices from both Examiner Tyndall’s home and Petitioner’s home to determine if a transfer was feasible and desirable. District Supervisor Franze determined that it would be feasible to transfer Petitioner to the Fayetteville West office, which would have decreased the distance Petitioner would have had to travel to work, from 10.7 miles – or 15 minutes (Resp. ex. 56 p. 68) – to 9.1 miles. (Resp. ex. 29; T. pp. 841-43, 972-77). Also, Petitioner had specifically requested to be transferred (Resp. ex. 56 p. 80; T. pp. 972-73), and transferring Examiner Tyndall would have been less reasonable since her home is closer – approximately five minutes – to the Raeford office. (T. p. 976).
161. Chief Grady thus decided to transfer Petitioner and planned to carry out the transfer on September 17, 2007. While waiting to carry out the transfer until she had a formal letter from DOT to present to Petitioner, Chief Grady informed Joan Holland (hereinafter “District Supervisor Joan Holland”), district supervisor over the Fayetteville office, of the pending transfer. Chief Grady testified that she was not sure whether District Supervisor Holland or some other person might have alerted Petitioner to the transfer. (T. p. 973).
162. Ultimately, the transfer was not effectuated because of the events of September 17, 2007.
Events of September 17, 2007
163. On the morning of September 17, 2007, Petitioner arrived at the Raeford office at approximately 7:45 a.m. and parked her vehicle on the opposite side of the building and with her car facing away from the entrance to the building. Petitioner exited her vehicle and began walking towards the front door. Petitioner has alleged that as she walked up to the building, she saw that the inside of the office was dark. However, Examiner Tyndall has the office lights on every day by approximately 7:30 a.m. (Resp. ex. 22E). Also, Petitioner acknowledged that there is an emergency light that stays on at all times. Petitioner stated that the blinds on the windows were closed at the time, as they always are, and that when she got to the glass door. Petitioner claimed that as she got to the glass front door, she saw Examiner Tyndall sitting inside the office at her desk and staring at Petitioner as she walked up. At that point, Petitioner claimed she started shaking, froze in her tracks, started backing up, turned around, and walked back to her car, where she sat for a few minutes. (Resp. ex. 56 pp. 86-92).
164. Petitioner has admitted that Examiner Tyndall did not gesture toward her, did not threaten her, and did not appear to be saying anything to Petitioner through the glass. (Resp. ex 56 pp. 89-90).
165. Although Petitioner stated that the office was dark, she claimed during her deposition that she saw Examiner Tyndall’s eyes staring at her; curiously, however, Petitioner also stated during the deposition that she did not know if she made eye contact with Examiner Tyndall. (Resp. ex. 56 pp. 90, 94).
166. Additionally, Petitioner, despite being frozen with fear at the office door, did not have any difficulty walking back to the car, locating her car key, or opening the car door. (Resp. ex. 56 pp. 99-100).
167. Petitioner allegedly sat in her car for a few minutes and waited to go into the office until she could follow a customer into the building. Petitioner could not remember the gender of the customer or what the customer looked like. She also acknowledged that while sitting in her car, she sat with her back to the building and her back to Examiner Tyndall, despite allegedly being afraid of Examiner Tyndall. (Resp. ex. 56 pp. 91-93, 100-02; Resp. ex. 22E; T. pp. 329-31).
168. When she finally entered the building at approximately 8:01 a.m., Petitioner noticed that the lights were on, and she walked to the left toward the back office, while the customer walked to the right toward the waiting area. Petitioner walked past Examiner Tyndall’s desk but did not see Examiner Tyndall anywhere. However, Respondent’s transaction reports reflected that Examiner Tyndall completed the first transaction of the day – a license renewal – at 8:02 a.m., and Petitioner admitted that such a transaction typically takes approximately five minutes to complete. Petitioner therefore acknowledged that the office’s first transaction likely began at 7:57 a.m., and Petitioner conceded that it was possible that other customers had walked into the office while she was sitting in her car. Examiner Tyndall specifically noted that she was waiting on her first customer before Petitioner even entered the building. (Resp. ex. 56 pp. 91-93, 100-02; Resp. ex. 22E; T. pp. 329-31).
169. After entering the building, Petitioner, much like after the closet incident, went to the back office and closed and locked the door, notwithstanding the fact that Examiner Tyndall had a key to the back office and could have entered at any time. Additionally, Petitioner testified that she did not see Examiner Tyndall when she entered the office, yet she also admitted that she walked into the back office without knowing whether Examiner Tyndall was in the back office. (Resp. ex. 56 pp. 92; T. p. 332).
170. While in the back office, Petitioner allegedly spent the first few minutes crying, after which she began methodically calling her supervisors as well as Respondent’s Employee Assistance Program (hereinafter “EAP”). (Resp. ex. 56 p. 95).
171. Petitioner insisted during the deposition that she called EAP first, but she could not remember the time she called them. Petitioner next allegedly called District Supervisor Franze and told him that she got scared when she saw Examiner Tyndall sitting in the office with the lights off and staring at her. She told District Supervisor Franze that she waited to enter the building until the first customer entered (Resp. ex. 22B p. 1); however, during her deposition, she stated she did not know whether she entered with the first customer or not. (Resp. ex. 56 p. 101).
172. Petitioner also told District Supervisor Franze that she had called EAP and ultimately said, “I can’t work like this. I just can’t do it.” District Supervisor Franze instructed Petitioner to remain in the back office and that he would call her back. (Resp. ex. 56 p. 95).
173. Although Petitioner stated that her first phone call was to EAP, Petitioner conceded that Respondent’s phone records for the Raeford office reflect that the first outgoing call was made to District Supervisor Franze at 8:34 a.m. (Resp. ex. 3A p. 1; T. p. 334).
174. After receiving Petitioner’s call, District Supervisor Franze called Chief Grady and informed her of the situation. District Supervisor Franze told Chief Grady that Petitioner had told him that she had an EAP appointment later that day. Chief Grady asked how Petitioner could have gotten an EAP appointment so quickly. She advised District Supervisor Franze to attempt to get that information from Petitioner and that, in the meantime, she would contact Representative Yow to find out how to handle situation. She also learned from District Supervisor Franze that the Aberdeen office, a five-examiner office, was short three examiners, as Senior Examiner Kozen was on vacation, Examiner Bosworth was out sick, and the other examiner position was vacant. (Resp. ex. 22B).
175. Chief Grady then called Representative Yow and informed her of the situation, including the fact that they were short-handed. Representative Yow said she would contact her supervisor for an answer and would call Chief Grady back. When she called back, Representative Yow advised that Petitioner could be asked to reschedule the EAP appointment. Chief Grady advised District Supervisor Franze of this and asked him to call Petitioner and instruct her to stay at work. (Resp. ex. 22B; T. pp. 674-75).
176. At 9:04 a.m., Petitioner called Chief Grady’s State cell phone. (Resp. ex. 3A p. 1).
177. At the time, Chief Salisbury was in Chief Grady’s office, and Chief Grady put Petitioner on speakerphone. Chief Salisbury was able to hear both side of the conversation clearly. (Resp. ex. 22B; Resp. ex. 22C).
178. Petitioner repeated to Chief Grady the story she told District Supervisor Franze, and she stated that she could not work because she was afraid to work with Examiner Tyndall. Chief Grady explicitly asked Petitioner if she was saying she could not work with Examiner Tyndall, and Petitioner responded, “I am scared to be around her.” Chief Grady again asked Petitioner if she was saying that she could not work with Examiner Tyndall, and Petitioner responded, “No.” Petitioner stated that she had been afraid to even walk by Examiner Tyndall since the closet incident, even though she made no mention to Chief Grady of the fact that she and Examiner Tyndall had worked together and in close quarters without incident all day the previous workday. Chief Grady explained how short-staffed they were and instructed Petitioner to report to the Aberdeen office to work, whereupon Chief Grady would have one of the Aberdeen examiners report to Raeford. (Resp. ex. 22B; Resp. ex. 22C). Chief Grady’s response to the situation was reasonable in light of the circumstances.
179. However, Petitioner got loud and disrespectful and would not listen to Chief Grady. It became clear to Chief Salisbury that Petitioner “was not going to take no for an answer and that she had all intentions on leaving.” At one point, Petitioner even said to Chief Grady, “What are we suppose[d] to do, grin and bear it [be]cause there is a staff shortage?” Petitioner continued to refuse Chief Grady’s directive to report to Aberdeen and stated that she could not work at all that day because: (a) she was suffering from emotional distress; (b) she was having blood pressure problems; (c) she should not have to go to Aberdeen “when she had not done anything wrong”; (d) she should not have to go to Aberdeen because the Raeford office “was only 7 minutes from her son’s school and was close if needed for her daughter”; and (e) she had an EAP appointment for later that day. When Chief Grady asked for details as to the alleged appointment, Petitioner admitted that she did not have the appointment yet, but that someone from EAP was going to call her home phone number and leave information on her answering machine regarding the appointment and time. (Resp. ex. 22B; Resp. ex. 22C).
180. The evidence of record shows that Petitioner had only made a self-referral and did not have an actual appointment, as she claimed (Resp. ex. 6), and also that Petitioner did not and could not know with any certainty whether she would get an appointment for that same day. (T. p. 689). In fact, in Representative Yow’s ten years of working as an employee assistance representative, EAP had never granted a same-day appointment for a self-referral. (T. p. 689).
181. The undersigned finds no negative connotation attached to self referrals and self referrals should be encouraged, especially in situations involving mental health issues.
182. When Chief Grady inquired as to the doctor’s name and telephone number, Petitioner questioned Chief Grady, “What policy states that I have to tell you what doctor I am going to?” Chief Grady, however, repeated her request, and Petitioner said she would call back. (Resp. ex. 22B; Resp. ex. 22C).
183. At approximately 9:30 a.m., Petitioner called back and told Chief Grady that she had an appointment with “Omni Counsels at 2:00 with Dr. Berry [sic].” (Resp. ex. 22B; Resp. ex. 22C).
184. “Dr. Berry” turned out to be Ms. Laura Barry (hereinafter “Ms. Barry”), a licensed clinical social worker who was not a doctor. (Resp. ex. 56 p. 103; T. p. 138).
185. Additionally Ms. Barry is one of Respondent’s EAP providers, and at no point did Ms. Barry represent to Petitioner that she was affiliated with Respondent’s EAP program. (T. p. 176).
186. After Petitioner followed up on her claim that she had an EAP appointment by informing Chief Grady that her appointment was with “Dr. Berry,” Chief Grady requested that Petitioner reschedule the appointment, and Petitioner refused. (Resp. ex. 22B; Resp. ex. 22C).
187. Chief Grady told Petitioner that she was not approving the leave request and that if Petitioner left the Raeford office, the leave would be unapproved. Chief Grady again asked Petitioner to reschedule the alleged EAP appointment, and Petitioner refused and accused Chief Grady of harassing her. (Resp. ex. 22B; Resp. ex. 22C).
188. Chief Grady then firmly stated, “I want you to understand that if you leave work that this will be unapproved leave.” Petitioner responded, “I want you to understand, I am leaving and going home.” Petitioner then hung the phone up on Chief Grady. The time was 9:40 a.m. (Resp. ex. 22B; Resp. ex. 22C).
189. At 9:43 a.m., Petitioner left the Raeford office and neither reported to the Aberdeen office nor returned to the Raeford office. (Resp. ex. 22B; Resp. ex. 22E).
190. Respondent’s sick leave policy provides that: “Sick leave may be granted for incapacity due to injury or a personal illness, medical appointments, death in the immediate family, quarantine due to a contagious disease in employee’s immediate family, and the actual period of temporary disability connected with childbearing.” Pet. Ex.2. Respondent’s policy further provides that “Sick leave with pay will not be authorized unless the supervisor is notified before the leave is taken, or soon thereafter in case of an emergency.” Pet. Ex. 2, p. 2451. Grady testified an employee is entitled to use sick leave if they say they are sick. T. p. 1021. Grady also testified that in all of her years with the State she had never told anyone that they were not sick when an employee called in sick. Grady further acknowledged that management is not authorized to make a determination on whether an individual is sick. T. P. 1021. Tr. p. 1023. Petitioner all contacted the EAP program which encourages employees to seek help when needed. “The action on the part of the employee to seek help for personal problems shall be viewed as a responsible action, and shall be supported by management.” Pet Ex. 3, p. 2702.
191. Petitioner did inform Joe Franze and Chief Grady that she was sick and that she needed to be off. She notified them immediately upon coming to work and realizing that she could not continue to work with Tyndall.
192. The undersigned finds as a fact that based upon a preponderance of the evidence, Respondent should not have denied Petitioner sick leave based upon proper application of its own policy. If a proper doctor’s report had not been presented, then a decision could have been made at that time. The facts of this case demonstrate that Petitioner was suffering from a stated physical illness and also an obvious mental impairment and sick leave should have been liberally granted to Petitioner pursuant to Respondent’s sick leave policy. The undersigned does find that Petitioner articulated health issues as reasons for not being able to work: that “she has blood pressure problems and that her blood pressure was probably sky high” and “she was emotionally stressed or something to that nature.” T. p. 984. Grady also testified that Petitioner informed her that Petitioner had called the Employee Assistance Program. T. p. 984. Petitioner advised Grady that her “health was more important than [her] job.” Pet.Ex.18. Petitioner also informed Grady that her health was at risk and she had to see someone. T pp.133-134. Petitioner consulted Laura Barry on September 17, 2007 at 2:00 p.m. I find as a fact that Dr. Barry’s testimony regarding the appearance of Petitioner’s condition on September 17, 2007 at 2:00 p.m. gives support to Petitioner’s position that she was sick and not in a condition to work. Laura Barry testified that Petitioner was extremely anxious, distressed, nervous and afraid and that she was hyperventilating. T. pp. 43-46. She further testified to the efforts she made to calm the Petitioner down. T. p. 149. and made an initial diagnosis of anxiety and ruled out PTSD. She gave Petitioner an excuse not to return to work. Pet. Ex. 30, 71, and later diagnosed Petitioner with PTSD. The undersigned finds as a fact that viewing the entirety of the evidence related to Petitioner’s failure to report to Aberdeen after articulating her need for medical care, Respondent should not have used this as a basis for dismissing Petitioner for cause based upon unacceptable personal conduct. The undersigned does not find as a fact or as a matter of law that Respondent’s refusal to grant leave under these circumstances as an act of bad faith or as harassment of the Petitioner.
Hang-ups on September 18, 2007
193. On September 18, 2007, the evidence of record shows that Petitioner hung up the telephone on two different supervisors.
194. First, at approximately 4:55 p.m., Petitioner called Senior Examiner’s office phone and stated that she would not be in to work the following day, September 19, 2007. Senior Examiner Kozen – who had been scheduled to be on vacation and returned to work only because of the shortage created by Petitioner’s absence – instructed Petitioner to call District Supervisor Franze and inform him of the time off. Petitioner exclaimed, “I’m telling you, you are my immediate supervisor!” Senior Examiner Kozen stated that she was going on vacation and that Petitioner, thus, needed to call District Supervisor Franze. Petitioner resisted, insisting, “Well, you answered the phone!” Senior Examiner Kozen responded, “I am giving you a directive to call [District Supervisor Franze].” Petitioner replied, “I called you, I’m telling you, you’re my supervisor and I’m telling you!” Petitioner then slammed the phone down and hung up on Senior Examiner Kozen. (Resp. ex. 23A; T. p. 728).
195. Petitioner testified that after Senior Examiner Kozen instructed her to call District Supervisor Franze, she said “Okay” and hung up on the phone. Regardless, it is undisputed that Petitioner made the last comments in the conversation, and Petitioner has admitted that she offered no “goodbye” or parting words before hanging up. (T. pp. 188-89, 728).
196. Also, during the hearing on this matter, Senior Examiner Kozen explained why she had instructed Petitioner to call District Supervisor Franze: “I directed her to call [District Supervisor Franze] because I had gotten myself in trouble before . . . . I was issued a written warning for allowing [Examiner] Abrams to take a full day” without instructing her that, without documentation, the leave would be unapproved. (T. pp. 726-27).
197. Senior Examiner also noted that Petitioner had hung up on her before (T. p. 728), an incident which was witnessed by Examiner Bosworth as discussed above.
198. The second hang-up occurred approximately ten minutes after the first.
199. At 5:06 p.m., Chief Grady called Representative Yow to inform her that Petitioner had hung up on Senior Examiner Kozen earlier in the day. Chief Grady was talking to Representative Yow on her office phone, when during the course of their conversation, Chief Grady received a call from Petitioner on her State cell phone. Chief Grady answered her cell phone while still having Representative Yow on the landline. (Resp. ex. 23B; Resp. ex. 23C).
200. Petitioner told Chief Grady that Senior Examiner Kozen had instructed her to call District Supervisor Franze, and when she was unable to reach District Supervisor Franze, she decided to call Chief Grady. (Resp. ex. 23B; Resp. ex. 23C).
201. Petitioner then informed Chief Grady that she would not be at work the following day, September 19, 2007. Chief Grady asked Petitioner if she had a doctor’s note, and Petitioner responded that she did and that she would bring it to Aberdeen on September 20, 2007. (Resp. ex. 23B; Resp. ex. 23C).
202. Chief Grady also asked when the noted stated Petitioner could return to work, and Petitioner said it was an open-ended note. Chief Grady advised that she needed the note and that until she received the note, the leave would be considered unapproved. Petitioner questioned Chief Grady – much as she had done the day prior – by asking, “Is this by policy,” to which Chief Grady responded, “Yes.” (Resp. ex. 23B; Resp. ex. 23C).
203. Petitioner reiterated that she would bring the note to Aberdeen on September 20, 2007, and at that point, Petitioner stated, “I am on my time now,” at which point she hung up on Chief Grady. (Resp. ex. 23B; Resp. ex. 23C).
204. Throughout Petitioner’s conversation with Chief Grady, Representative Yow was able to hear Chief Grady’s side of the conversation with Petitioner but was not able to hear Petitioner. Representative Yow heard Chief Grady ask when Petitioner “was planning to return to work,” and she heard “some conversation about a medical note.” Representative Yow heard Chief Grady respond that she was asking for the note in accordance with policy and then she heard Chief Grady calling out Petitioner’s name. (Resp. ex. 23B; Resp. ex. 23C).
205. Chief Grady got back on the phone with Representative Yow and exclaimed that Petitioner had hung up on her again. (Resp. ex. 23B; Resp. ex. 23C).
206. Based upon what Representative Yow heard, she believed that Chief Grady “was still having an active conversation with [Petitioner] when the conversation abruptly ended.” (Resp. ex. 23B; Resp. ex. 23C).
207. Petitioner has claimed that she does not know why the call ended, but that she did not hang up on Chief Grady. However, Petitioner has expressly testified that she did not feel that the conversation had ended, that she did not say “goodbye” or any other parting words, and that she did not call or even attempt to call Chief Grady back. In fact, Petitioner admitted, “It wasn't that I didn't see any reason. I just didn't have it that day.” (Resp. ex. 56 p. 108; T. pp. 358-59).
208. Although Petitioner may have reasonably believed in her own mind that she did not hang up on Senior Examiner Kozen and Chief Grady, this Court does find by the preponderance of the evidence that Petitioner hung up on the Kozen and Grady. However, the undersigned does not find as a fact that the Petitioner lied during her predisciplinary conference about whether she hung up on the Respondent’s supervisors. Petitioner was told by Respondent that she made untruthful statements when she denied in her predisciplinary conference on October 5, 1007 that she had hung up on her supervisors prior to the conversations ending. P. Ex. L17. There is insufficient evidence in the record to conclude that Petitioner lied during her predisciplinary conference and therefore, Respondent should not have used this factor as a reason for Petitioner’s dismissal. Petitioner’s articulation of a good faith belief during the predismissal conference that she did not hang up on Kozen and Grady should not have become a basis of her dismissal. Nevertheless, the undersigned does find as a fact that Petitioner’s conduct in ending the conversations in the manner testified to, amounts to a “hanging up” on Kozen and Grady.
Written Warning – Closet Incident
209. On September 21, 2007, both Petitioner and Examiner Tyndall received written warnings for their role in the closet incident on September 12, 2007. (Resp. ex. 50; Resp. ex. 51; T. pp. 534, 993).
210. Petitioner’s disciplinary action was based upon willful violation of known or written work rules, conduct unbecoming a State employee detrimental to State service, and conduct for which no reasonable person should expect to receive a prior warning. (Resp. ex. 50; Resp. ex. 51).
211. Specifically, Chief Grady based the warning on the fact that Petitioner admitted to engaging in a verbal altercation with Examiner Tyndall in the presence of customers and that “[a]fter talking with both you and Examiner Brenda Tyndall about this incident, and gathering written statements from both of you, I am persuaded to believe that each of you contributed negatively to this situation.” (Resp. ex. 50; Resp. ex. 51).
212. The undersigned does find as a fact that the Respondent issued to Petitioner an unwarranted written warning for sending an e-mail to Salisbury and Kozen complaining of the office moral and her reasonable belief that co-workers were deliberately harassing her. Pet. Ex. 47. Respondent warned Petitioner that the e-mail was defamatory and accusatory; however the Equal Employment Opportunity Commission and Civil Rights Division of the Office of Administrative Hearings found the e-mail to be “based on a reasonable, good faith belief,” for Petitioner communicated her belief of what she perceived to be discrimination and retaliation. Jt. Stip. J-7b. the Equal Employment Opportunity Commission and Civil Rights Division of the Office of Administrative Hearings also found discrimination with regard to the “below good” rating Petitioner received for allegedly arriving late to the office meeting. Jt. Stip.J-7b.
Encounters with Respondent Post-September 18, 2007
213. On September 21, 2007 – the same date as the written warnings for the closet incident – Examiner Tyndall returned early from lunch and observed Petitioner in the Raeford office – who had claimed she was too sick to work – sitting at Examiner Tyndall’s workstation, using Examiner Tyndall’s computer, and talking with Examiner Abrams. (Resp. ex. 24 p. 1; T. pp. 508-09)
214. Upon seeing Petitioner at her workstation, Examiner Tyndall walked directly to the back office to put away a deposit slip. While there, Examiner Tyndall observed that there were papers spread out on the office desk. Petitioner entered the back office while Examiner Tyndall was there, and Examiner Tyndall returned to the main office and lobby area. (Resp. ex. 24 p. 1; T. pp. 508-09)
215. After several minutes of being in the Raeford office with Examiner Tyndall, Petitioner gathered up the papers that had been spread out on the back office desk, returned to Examiner Tyndall’s desk to retrieve the rest of her belongings, and left the Raeford office. (Resp. ex. 24 p. 1; T. pp. 508-09).
216. In her testimony, Petitioner admitted visiting the Raeford office for approximately ten (10) minutes on September 21, 2007 and acknowledged that her friend, Examiner Abrams, was at the office at the time, but denied sitting at Examiner Tyndall’s desk or using her computer. (T. pp. 384-85).
217. On October 1, 2007, Petitioner left District Supervisor Franze a voice message stating that she would not be at work that day. During the message, Petitioner stated that District Supervisor Franze was permitted to email her but she instructed him not to call her because she claimed his voice upset her. (Resp. ex. 24 p. 2).
218. Ms. Barry testified that Petitioner received her termination notice while at the hospital with her son, who was undergoing a blood transfusion. Ms. Barry stated that Petitioner found out she was fired “[o]ver an email through – I believe her ex-husband had his computer at the hospital, and she – I remember she looked on the computer and just happened to open up an email, and she found out that she was terminated. And that was very painful. That was very painful for [Petitioner] to talk about.” The undersigned would normally find such notice to be in bad taste concerning the manner in which Petitioner was notified of her termination. However, on October 10, 2007, Petitioner had emailed District Supervisor Franze, copying Chief Grady and Assistant Director Spence, and specifically instructed him to send to her via email, rather than certified mail, the notice of her termination because she would be at the hospital with her son. (Resp. ex. 24 p. 3). Thus, Petitioner could not have been surprised to either receive the termination or receive it while at the hospital.
219. Petitioner fired a discrimination charge with the Civil Rights Division challenging her termination. Specifically, with respect to FEPA Charge # 08-CRD-0011, relative to being terminated after the incident in the closet, the Civil Rights Division made the following pertinent findings:
a. The Civil Rights Division found that Petitioner did hang up the phone on Chief Grady on September 17, at 9:30 a.m., as follows: “[Chief] Grady informed [Petitioner] that her leave was not authorized and was unapproved leave. [Petitioner] informed [Chief] Grady that she was going home and abruptly hung the telephone up on [Chief] Grady with Mr. Mike Salisbury listening in on the conversation.” (Ex. J-1b p. 4).
b. Relative to the hang up of the telephone on Chief Grady the following day, the Civil Rights Division found: “[Chief] Grady and Ms. Darlene Yow provided witness accounts that [Petitioner] hung the telephone up on [Chief] Grady.” (Ex. J-1b p. 5).
c. The Civil Rights Division noted that both Brenda Tyndall and Petitioner had received written warnings for the September 12, 2007 incident in the closet, and that the Petitioner had prior written warnings. (Ex. J-1b pp. 5, 6).
d. The Civil Rights Division first found that Petitioner refused to work on September 17, 2007 because she was afraid of Ms. Tyndall, but then after she was told to report to Aberdeen she then said she could not work due to an EAP appointment. (Ex. J-1b p. 8).
e. The Civil Rights Division concluded relative to this charge: “The record of evidence shows no evidence to support Charging Party’s allegation that Respondent allowed her to be subjected to harassment in retaliation for filing previous charges against them.” (Ex. J-1b p. 9).
220. The undersigned agrees with the Civil Rights Division and finds that Petitioner hung up on Chief Grady on September 17, 2007, on Senior Examiner Kozen on September 18, 2007, and on Chief Grady on September 18, 2007, and this Court further finds that Petitioner willfully refused a lawful and reasonable directive issued by Chief Grady for Petitioner to report to the Aberdeen office. The undersigned finds that Petitioner was not required to use such ordinary departing words such as goodbye or I’ll talk to you later before hanging up the phone. However, under the circumstances and serious nature of the telephone conversation that was taking place, Petitioner had an obligation to conclude the telephone conversations in a manner that would have demonstrated Petitioner’s sincerity and non-belligerence toward her superiors and in a manner that would have conveyed understanding and cooperation with her employer.
Petitioner’s Interactions with EAP
221. Despite Petitioner’s claim that she sought assistance from EAP, when she called on September 17, 2007, she asked for a same-day appointment, but EAP provided her with an appointment for 8:45 a.m. with Alida Mason (hereinafter “Ms. Mason”) on September 18, 2007. Petitioner, however, did not attend her appointment with Ms. Mason, and informed EAP that she tried to see another approved-counselor, Jacqueline Grantland, but was unable to get an appointment with her. (Resp. ex. 6).
222. On September 19, 2007, EAP referred Petitioner to Linda Smith (hereinafter “Ms. Smith”), but the following day, Petitioner called EAP and said that Ms. Smith was too far away. (Resp. ex. 6).
223. Despite rejecting Ms. Smith, EAP gave Petitioner yet another referral, this time to Rhonda Batten (hereinafter “Ms. Batten”) and Richard Varela (hereinafter “Mr. Varela”). Petitioner, however, refused to see Ms. Batten because she shared a first name (“Rhonda”) with Senior Examiner Kozen. (Resp. ex. 6; Resp. ex. 56 p. 116-17). However, the alleged traumatic incident – which has waffled from the closet incident to the incident of seeing Examiner Tyndall sitting in the dark office – occurred with Examiner Tyndall, whose first name is “Brenda.” Petitioner has not had any difficulty associating with persons named Brenda, including Chief Grady, and in fact has known some good “Brenda’s.” (Resp. ex. 56 p. 117).
224. On September 21, 2007, EAP left a message with Petitioner to follow up to find out her appointment date. (Resp. ex. 6).
225. Petitioner ultimately presented to Mr. Varela on September 24, 2007, the only EAP appointment she ever kept. (Pet. ex. 28).
226. On September 25, 2007, EAP left a message with Petitioner to see how her appointment went and if they could offer further assistance. (Resp. ex. 6).
227. After her appointment with Mr. Varela, Petitioner did not contact EAP until January 4, 2008, when she requested a list of when she contacted EAP. (Resp. ex. 6).
228. Petitioner subsequently went to see Dr. Atul Kantesaria, a psychiatrist. Petitioner did not call Dr. Kantesaria to testify in this matter. Dr. Kantesaria diagnosed Petitioner with post-traumatic disorder but did so based upon spousal abuse suffered by Petitioner, not the closet incident, which he described as “a verbal exchange” with a co-worker. After two visits with Dr. Kantesaria, Petitioner failed to return for follow-up, despite repeated phone calls from Dr. Kantesaria. He thereafter closed her file. (Resp. ex. 38).
Petitioner’s Mental Health
229. On the first day that Ms. Barry ever saw Petitioner as a patient, outside of the context of Petitioner accompanying her children to their therapy sessions, Ms. Barry made a rule-out diagnosis of post-traumatic stress disorder. Despite the alleged severity of Petitioner’s agitated condition, she allowed Petitioner to drive home, and she expressed no concern that Petitioner had driven to the office, either. By the second appointment, Ms. Barry “confirmed” the diagnosis of post-traumatic stress disorder. (Pet. ex. 30).[2]
230. Respondent presented expert testimony through Mark Hazelrigg, Ph.D. Dr. Hazelrigg is a forensic psychologist and the Director of Forensic Outpatient Evaluation Services at Dorothea Dix Hospital in Raleigh, North Carolina. Dr. Hazelrigg has written over ten publications and given over twenty presentations, including one in 2004 on malingering and personality disorders. This Court accepted Dr. Hazelrigg as an expert in the fields of clinical and forensic psychology, and specifically with respect to post-traumatic stress disorder. With regards to Petitioner, Dr. Hazelrigg was familiar with the basic facts of the case, having reviewed numerous documents, including the mental health notes from both Ms. Barry and Dr. Kantesaria, statements made by the parties involved, notes from EAP, and the deposition testimony from Ms. Barry. After noting that Petitioner was dealing with other stressors in her life (spousal abuse, ill child, etc.), that Petitioner had experienced no threat to her person or life in the closet or otherwise, that Petitioner had not demonstrated avoidance of the persons and places that would inherently conjure up anxiety related to the traumatic event, and that Petitioner did not experience horror during the closet incident but rather went right back at Examiner Tyndall and shouted at her, Dr. Hazelrigg opined that the diagnosis of post-traumatic stress disorder was patently unreasonable. Dr. Hazelrigg also noted the incongruity of the information Petitioner gave Ms. Barry versus the information she gave Dr. Kantesaria. (Resp. ex. 5; T. pp. 788-26). The undersigned finds as a fact and as a matter of law that the closet incident occurring between Petitioner and Examiner Tyndall on September 12, 2007 probably did cause Petitioner to suffer stress, however, it was not severe enough to cause post-traumatic stress disorder.
231. The undersigned has considered Petitioner’s Exhibits 73 and 82 and find that do not constitute sufficient evidence of discrimination by Respondent against Petitioner in her applications for one of the vacancies in the Cumberland County DMV offices. ( Pet. Ex. 48, T. pp.91-93) T. pp. 1252-1256), Pet. Ex. 74). The evidence does show that the reason given by Respondent that Petitioner was not interviewed was because her applications were not entirely completed and thus were marked “qualified” rather than “most qualified.” The undersigned also finds as a fact that Petitioner was not the only applicant that failed to complete the application in its entirety. Four other applicants failed to answer at least one question on their applications, but those four applications were marked “most qualified.” The record is devoid of evidence that either of these four applicants were interviewed or got either of the jobs Petitioner was seeking.
Additional Credibility Determinations
232. Based upon her actions as detailed above, her inconsistent statements, and the following additional facts, the Court finds Petitioner to be not credible:
a. During her deposition, Petitioner strenuously denied having ever been fired or asked to resign. (Resp. ex. 56 p. 9). However, her application for employment with DOC included the question “If you have ever been discharged or requested to resign from any position because of criminal or personal misconduct or rules violations, give details,” to which Petitioner acknowledged, “I failed to follow the proper shipping procedures which sent the products back to the corporate office. I was reprimanded and later given the option to resign or be terminated. I resigned.” (Resp. ex. 48 p. 6).
b. Petitioner criticized members of Respondent’s management for using the word “black” to refer to Petitioner, rather than African-American. Petitioner stated in her “commando raid” email to management that “Black is a color and not a description of an ethnic group or people.” (T. p. 266; Resp. ex. 9 p. 4). However, in fact, Petitioner has even used an abbreviated version of the word “black” to refer to “an ethnic group of people” in emails to Examiner Abrams. For example, in an email on January 3, 2007 – approximately six weeks prior to her condemnation of Respondent for using the word “black” – with the subject line “Blk people,” Petitioner criticized her co-worker’s interactions with black customers, telling Examiner Abrams, “Gurl, you should see her over her like she’s politican [sic] for blk votes! Talking and touching the lil’ blk kids that come in. Just sick! spilling over herself to be friendly to the blk people…. phoney as a 25 dollar bill!!” (Ex. 26 p. 3). During the hearing, Petitioner admitted that “blk” meant “black.” (T. p. 269). Petitioner attempted to claim that the co-worker to whom she was referring could have been Examiner Bosworth or someone else; “I don’t know who I was working with that day.” Curiously, although Petitioner said the reference might have been to Examiner Bosworth, Petitioner testified at trial that she had a good working relationship with Examiner Bosworth (T. p. 352), which brings to mind the familiar adage: “With friends like this, who needs enemies?”
c. Petitioner’s explanation of her mental health and anxiety or post-traumatic stress syndrome is undermined by a draft email from Examiner Abrams to Petitioner that was found by Respondent on March 2, 2007. In the email, Examiner Abrams – in addition to giving instructions to Petitioner on what to say to the Civil Rights Division investigators with the Civil Rights Division with regards to Petitioner’s complaint concerning the rearranging of the office furniture on February 28, 2007, which had prompted the “commando raid” email to Respondent – asked Petitioner, “Have you had an opportunity to find us a Psychiatrist? I feel a mental health week coming on.” (Ex. 26 p.1).
d. While allegedly suffering from post-traumatic stress syndrome, Petitioner emailed Examiner Abrams on December 4, 2007, saying, inter alia: “I prayed and wondered why I hadn’t heard anything from the Civil Rights Investigator, after sending my resolution plus an email. BUT it came to me, like the Holy [S]pirit flooding my mind with a simple phrase…. No news is good news . . . I sat up in my bed and it was like, Girl… No news is good news, they didn’t shoot down your resloution [sic] after almost 10 days of having it. What does that say? They are finaling [sic] taking my case and charges serious. . . . They are wheying [sic] out the options…. Something is going to happen very soon and [Senior Examiner Kozen]…. will be blind-sided by it. [Chief] Grady will throw [Senior Examiner Kozen] and [Examiner Tyndall] on the fire to roast, while she gets out of the line of fire. Girl, we are so blessed…. Praise God! You and I will get our inheritance… I want to run for victory right now! It’s coming. It’s coming for us.” (Ex. 26 p. 5) (emphases in original). Petitioner was excited about the possibility of success for one of her charges and was excited about getting her “inheritance.” It is patently obvious that Petitioner was not suffering or distressed, but rather was excited about the prospect of obtaining monetary damages from her former employer.
e. Petitioner lied to management regarding her decision to withdraw her application for a position in Laurinburg. Specifically, Petitioner emailed District Supervisor Elliott on March 17, 2005, and asked him what she would need to do if she decided that she did not want to transfer to Laurinburg, despite having already applied. District Supervisor Elliott responded, “If you don’t want to go to Laurinburg, I’ve taken care of it. Personnel will select the next person after you.” At this point, Petitioner understood that her application had been withdrawn, and she emailed Examiner Gibson, expressly stating, “I withdrew my name for Laurinburg.” Petitioner explained that she withdrew from the application process because her attorney suggested not changing locations while she was going through child custody proceedings. Despite evincing her understanding that her name had been withdrawn, Petitioner emailed Sheila McAdams (hereinafter “Chief McAdams”) (Black/female), who previously had been the chief over District H, and stated, “I had not made up my mind as to what I wanted to do and by the time I had the information…[District Supervisor Elliott] had already made the call, had my name removed. Is there anything I can do??” Petitioner attached District Supervisor Elliott’s email in the body of her email to Chief McAdams, but Petitioner did not include her email to Examiner Gibson. As a result, Petitioner effectively made a false accusation against her district supervisor to the person she believed to be her regional chief and thus the district supervisor’s superior. (Resp. ex. 49-5 to 49-9).
f. Petitioner complained that she was a victim of racial discrimination in the work place, when receiving emails from Examiner Abrams using racially-charged language, Petitioner did not condone the language used by her co-worker. In one email from Examiner Abrams to Petitioner, Examiner Abrams stated, “I refused to let some ignorant ‘po white trash’ treat me like I’m stupid. I’m way too smart for that. As a BLACK WOMAN, I have been through too much . . . .” (Resp. ex. 49-12). In another email, Examiner Abrams asked Petitioner whether she had a particular book, which she stated “is a real enlightenment on the way Po White trash feels [sic] about Blacks having as much or ‘anything’ they do.” (Resp. ex. 49-15). In an email exchange with Examiner Gibson, Petitioner jokingly referred to Examiner Gibson as an “uppity negro.” (Resp. ex. 49-19). In yet another email, Petitioner forwarded to Examiner Gibson an email she had sent to Senior Examiner Kozen and stated, “I know stop messing w/them wf.” Examiner Gibson responded, “Stop talking back to w/folks you are getting above your raising child!!!!!!!!!!” (Resp. ex. 49-16). Similarly, Petitioner emailed Examiner Gibson, stating, “On the matter of w/folks[,] I’m trying to get them confused first…then have them…wondering how I did it, in first place.” Examiner Gibson encouraged her continue “the business of confusing it.” (Resp. ex. 49-17).
233. This Court finds much of Respondent’s witness testimony to be credible, particularly that of Chief Grady.
CONCLUSIONS OF LAW
1. Petitioner Exhibits 73 and 82 are admissible and have been admitted pursuant to 26
NCAC 03.0122, 150B-29, and Rule 901 of the N.C. Rules of Evidence. The exhibits are relevant and their authenticity was sufficiently established. Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 552 (D. Md. 2007), Chika v. Planning Research Corp., 179 F. Supp. 2d 575 (D.Md. 2002).
2. 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.
3. At the time of her discharge, Petitioner was a career State employee subject to the provisions of the State Personnel Act, N.C.G.S. 126-1 et seq. Petitioner, therefore, could only “be warned, demoted, suspended or dismissed by” Respondent “for just cause.” 25 NCAC 01J .0604(a).
4. One of the two bases for “just cause” is “unacceptable personal conduct,” 25 NCAC 01J .0604(b), which includes, inter alia, “conduct for which no reasonable person should expect to receive prior warning,” “conduct unbecoming a state employee that is detrimental to state service,” and “insubordination.” 25 NCAC 01J .0614(g), (h). “Insubordination,” in turn, is defined as “[t]he willful failure or refusal to carry out a reasonable order from an authorized supervisor.” 25 NCAC 01J .0614(g).
5. Respondent complied with the procedural requirements for dismissal for personal conduct pursuant to 25 NCAC 01J .0608 and .0613.
6. Chief Grady was an authorized supervisor of Petitioner. See N.C.G.S. ( 20-49.
7. Petitioner’s violation of Chief Grady’s order to report to the Aberdeen office does not constitute unacceptable personal conduct and just cause for dismissal pursuant to 25 NCAC 1J .0614 under the specific facts and circumstances of this case.
8. Petitioner’s hanging up the telephone on Chief Grady on September 17, 2007, on Senior Examiner Kozen on September 18, 2007, and on Chief Grady again on September 18, 2007, considered along with the facts and circumstances of this case, constitutes insubordination, conduct detrimental to State service, and conduct for which no prior warning is required. The undersigned does not find as a matter of law that Petitioner lied about the hang-ups during the pre-disciplinary conference, however by the preponderance of the evidence the undersigned finds as a matter of law that Petitioner “hung up” the telephone on Chief Grady twice and Senior Examiner Kozen within the ordinary meaning of the phrase “hung up.” Petitioner’s articulation of a good faith belief that she did not hang up the telephone on Grady and Kozen at the disciplinary conference should not have been used by Respondent as a reason to support her dismissal for cause.
9. Therefore, Respondent has 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.
10. 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)).
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 & Pub. 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 Ctr. 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 discrimination. While Petitioner is a member of a minority group as an African-American, Petitioner was not as qualified as others for the positions for which she applied. With respect to her termination, Respondent demonstrated nondiscriminatory reasons for her discharge and Petitioner has failed to show that said reasons were pretextual.
14. Similarly, with respect to Petitioner’s retaliation claim, our Courts have held that “the plaintiff must establish a prima facie case of retaliation, the elements of which are: (1) the plaintiff's engagement in a protected activity, (2) an adverse employment action occurring subsequent to the protected activity, and (3) the plaintiff's engagement in the protected activity was a substantial or motivating factor in the "'adverse employment action. Once a prima facie case is made, the defendant must then articulate a legitimate, non-discriminatory reason for the adverse employment action. Finally, if the defendant meets its burden of production, the plaintiff must then come forward with evidence to show that the legitimate reason was a mere pretext for the retaliatory action. Thus, a plaintiff retains the ultimate burden of proving that the adverse employment action would not have occurred had there been no protected activity engaged in by the plaintiff.” Wells v. State Dep’t of Corr., 152 N.C. App. 307, 314, 567 S.E.2d 803, 809 (2002) (internal quotation marks, citations, and alterations omitted).
15. Here, assuming arguendo that Petitioner was engaged in protected activity when she sent the various heated emails to management or when she slammed the phone down on her supervisors, Respondent has demonstrated legitimate reasons for the actions taken against Petitioner, and Petitioner has failed to carry her burden of showing that said reasons were pretextual.
On the basis of the above-noted Findings of Fact and Conclusions of Law, the undersigned makes the following:
DECISION
The Undersigned find and AFFIRMS Respondent’s dismissal of Petitioner in that Respondent had “just cause” for such disciplinary decision within the meaning of N.C.G.S. § 126-35 and did not act in a discriminatory or retaliatory fashion.
Based upon the foregoing Findings of Fact and Conclusions of Law, the Respondent met its burden of proof showing that it had just cause to dismiss the Petitioner for Unacceptable Personal Conduct per 25 N.C.A.C. 1J .0614 (i)(1), (4), and (5), and Petitioner failed to meet her proof of demonstrating racial discrimination or retaliation.
NOTICE
The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to Decision and to present written arguments to those in the agency who will consider this Decision. N.C.G.S. § 150B-36(a).
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’ attorney of record and to the Office of Administrative Hearings. The agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.
This the _________ day of April, 2009.
___________________________
Joe L. Webster
Administrative Law Judge
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[1] Depending upon the particular biblical version, the passage reads: “I will say of the LORD, ‘He is my refuge and my fortress, my God, in whom I trust.’” Psalms 91:2 (New International).
[2] 1Mental illness, including depression and bipolar disorder, is a growing problem in the United States and affects every aspect of life, including the work place. Rank-and-file employees and management are equally affected in ways that cause incalculable hours of lost time productivity. See Kessler , R.C., Akiskal, H.S., Ames, M., Birnbaum, H., Greenberg, P., A, R.M., et al., (2006). Prevalence and Effects of Mood Disorders on Work Performance in a Nationally Representative Sample of U.S. Workers. Am J Psychiatry, 163(9), 1561-1568. Discord among fellow co-workers and the uncertainty of how to deal with it is an underlying theme running throughout the facts of the case before this Court. The stigma of being tagged with the label of “mentally ill” is too great a price to pay for most employees in today’s workplace, thus keeping those suffering mental illnesses from notifying the employer of such a diagnosis and then obtaining appropriate treatment and workplace accommodations. Just as importantly the present societal norms and workplace rules keep the employer from being proactive and taking the first step in suggesting treatment for its employees. Instead, employers treat those with obvious, but undiagnosed or undisclosed mental illnesses just like any other employee. The unfortunate result is cases like this one before the OAH, which result in sad but predictable outcomes. In this case the record is filled with missed opportunities for intervention by management. However, our work place rules have placed the burden of getting help upon the employee, who is often incapable of recognizing that a problem exists before adverse employment action has taken place for unacceptable personal conduct. It is unclear from the record what internal Agency policies may have helped Petitioner deal with the unimaginable stresses of her life, including suffering from hypertension, off and on physical abuse by her estranged husband, and supporting three minor children, including a son who suffers with the serious illness of sickle cell anemia.
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