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99 OSP 0870 et al

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					STATE OF NORTH CAROLINA                                     IN THE OFFICE OF
                                                       ADMINISTRATIVE HEARINGS
COUNTY OF JACKSON                                       99 OSP 0870, 99 OSP 1347
                                                        00 OSP 0413, 00 OSP 0745
                                                        00 OSP 0821, 00 OSP 0822
                                                           and 00 OSP 1094

RONALD DENNIS LONG,                           )
Petitioner,                                   )     RECOMMENDED DECISION
                                              )
               v.                             )
                                              )
WESTERN CAROLINA UNIVERSITY,                  )
Respondent.


        The seven petitions referenced above came on for hearing before Administrative Law
Judge Sammie Chess, Jr., in Cullowhee, N.C., on October 3 and 4, 2000. Several petitions, filed
by this same Petitioner against this same Respondent, are still pending and did not come on for
hearing on October 3 and 4, 2000.

       Petitioner Ronald Dennis Long ("Petitioner") appeared pro se, and Respondent Western
Carolina University ("Respondent" or "WCU") was represented by Thomas O. Lawton III,
Assistant Attorney General with the Education Section of the N.C. Department of Justice.

                                             ISSUES

        In dismissing the Petitioner, did Respondent discriminate against him on the basis of age,
sex, or handicapping condition, or retaliate against him for his opposition to alleged
discrimination based on age, sex or handicapping condition?
In not rehiring the Petitioner, did Respondent discriminate against him on the basis of his age,
sex, or handicapping condition, or retaliate against him for his opposition to alleged
discrimination based on age, sex or handicapping condition?

       Was Petitioner wrongfully denied a veteran's preference?

                             STATUTES AND RULES IN ISSUE

       Chapter 126 of the N.C. General Statutes and the rules, regulations, and case-law
construing it.

                                        STIPULATIONS

       Before the hearing, the parties stipulated to the following:
1.    In January and/or February 1999, Ronald D. Long by e-mail, and verbally, asked Bob
Anders if he, Mr. Long, could be transferred to the evening shift.

      Mr. Long referred to his age, and explained that he would be better situated to learn at his
own pace.

2.      In January, February, and/or March 1999, Ronald D. Long communicated, by e-mail and
verbally, to Bob Anders and Debbie Justice complaints about what Mr. Long considered to be a
"party-like atmosphere" and vulgar language during the evening shift.

                                     FINDINGS OF FACT

                              Procedural background.
1.     On March 22, 1999, Petitioner was dismissed from employment as a Computer Support
Technician II by WCU. By petition 99 OSP 0870, filed on or about July 9, 1999, Petitioner
challenges that dismissal. The petition by which Petitioner challenges his dismissal, 99 OSP
0870, was one of seven that came on for hearing on October 3-4, 2000.

2.     Since his dismissal, Petitioner has applied for numerous jobs at WCU, and has filed
numerous petitions challenging the decisions not to rehire him. Two of those petitions -- 99 OSP
0901 and 99 OSP 0937 -- were dismissed by an order dated January 7, 2000.

3.     The petitions that came on for hearing October 3-4, 2000, are 99 OSP 0870 (the one
involving his dismissal), and six others: 99 OSP 1347, 00 OSP 0413, 00 OSP 0745, 00 OSP
0821, 00 OSP 0822, and 00 OSP 1094.

4.      One of the petitions (99 OSP 1347) involves a position in WCU's Hunter Library -- a
position for which Petitioner applied, but was not hired. The individual who made the decision
not to hire Petitioner for the Hunter Library position is Nancy Kolenbrander. Trans. p 61.

5.     The other petitions that came on for hearing in October 2000 -- 99 OSP 0870, 00 OSP
0413, 00 OSP 0745, 00 OSP 0821, 00 OSP 0822, and 00 OSP 1094 -- all involve positions in the
Computer Center. Ms. Justice made the decision to dismiss Petitioner from the Computer
Center, and made the decision not to rehire Petitioner for those positions in the Computer Center.

       The Computer Center positions: 99 OSP 0870, 00 OSP 0413,
       00 OSP 0745, 00 OSP 0821, 00 OSP 0822, and 00 OSP 1094.

6.     Petitioner has been sporadically employed in various capacities at WCU for a number of
years. Before August 1996, he had worked in WCU's Media Center, which is physically located
in the Hunter Library. Trans. p 25. Petitioner was dismissed from the Hunter Library Media
Center position, Trans. p 25, but did not file a petition challenging that dismissal.

7.      In August 1996, he was hired again by WCU, this time for a position as a help-desk
assistant in Hunter Laboratory, which is physically located in the Hunter Library, but is an
administrative part of WCU's Computer Center. Trans. pp 12-13 & 25.
8.      The person who made the August 1996 decision to hire Petitioner as a help-desk assistant
was Debbie Justice, who is Client Services Manager of WCU's Computer Center. Trans. p 11.
Ms. Justice is also the individual who decided, nearly three years later in March 1999, to dismiss
Petitioner. Trans. pp 22-23.

9.     When Ms. Justice hired Petitioner in August 1996, she knew that he had been previously
employed and dismissed from WCU. Trans. p 25. She hired him, despite that knowledge,
because she was having difficulty finding qualified applicants to fill the help-desk position.
Trans. p 26. There were only two applicants, and the other applicant came to the interview
apparently under the influence of a foreign substance, Trans. p 26, which Ms. Justice found
unacceptable. Given the choice between Petitioner, who had been fired from WCU, and an
applicant who showed up for the interview on drugs, Ms. Justice chose Petitioner for the help-
desk position.

10.    Back in August 1996, when Ms. Justice hired Petitioner for the help-desk position at
Hunter Laboratory, the Laboratory operated twenty-four hours a day during the fall and spring
semesters, but it did not operate twenty-four hours a day during the summer. Trans. p 12.

11.     Petitioner's help-desk position was a temporary, time-limited position, limited to the two
semesters during which the Hunter Laboratory operated twenty-four hours a day. Trans. p 13.
Petitioner was assigned to work the third, or night shift. Trans. pp 12-13. Petitioner's temporary,
time-limited position was not a permanent position, and was not subject to the State Personnel
Act. Trans. p 13.

12.     In the summer of 1998, WCU was given funding to add two new positions to the
Computer Center. Trans. p 13. The two new positions were for Computer Support Technicians.
Trans. p 13. These new Computer Support Technician positions were the first such positions on
campus. Trans. p 15. The reason for the two new positions was that WCU had begun to require
incoming freshmen to have computers; the new positions were to provide more computer
assistance. Trans. p 13-14.

13.    One of the new positions was to work the day shift, Monday through Friday, from 8 a.m.
to 5 p.m.; the other new position was to work an evening shift, from Sunday through Thursday.
Trans. p 14.

14.   In the late summer of 1998, Ms. Justice offered Petitioner one of the two new Computer
Support Technician positions. Trans. p 13.

15.     Petitioner asked for, and Ms. Justice offered, the day shift position. Trans. p 14 & 139.
Petitioner, having worked the night shift for so long, seemed pleased with being assigned the day
shift, Trans. p 15, and in fact he asked to be assigned the day shift. Trans. p. 139.

16.    However, Petitioner also requested that he be allowed to spend time in the computer lab
at night and after hours. Trans. p 83. Petitioner testified that he was depressed, had been
through therapy, was on some medications, and that he found it helpful to spend time in a "very
well-lit[,] fluorescent lit building." Trans. p 83. Petitioner testified that another reason he
wanted to spend time in the lab at night and after hours was that he wanted to be "obsessed" with
his job, and felt that he had a right to be "obsessed" with his job. Trans. p 85. He testified that
he thought that, "at that time in [his] personal life," it would help him to be at work. Trans. p 85.

17.      Petitioner had another reason for asking to come in at times that were not his shift. He
felt that, because of his age, he was slower to catch on to things, Trans. p 166, and he wanted to
spend time, when it was not his shift, becoming familiar with the network and applications.
Trans. p 16.

18.     Ms. Justice told Petitioner that he could be in the lab even when it was not his shift, as
long as it did not interfere with the operations of the evening shift. Trans. p 16. Petitioner
worked in a "shared office," Trans. p 18, so that the desk and the computer that Petitioner used
during the day shift were used by other people during the evening shift. Trans. p 143. Ms.
Justice told Petitioner he could come in during the evening shift only as long as he did not
interfere with those who were actually working the evening shift. Trans. p 18.

19.    As a Computer Support Technician, Petitioner's primary responsibility was to take
telephone calls from people with computer problems, and to try to solve those problems over the
telephone. Trans. pp 19-20 & 175. If Petitioner was unable to solve the problem over the
telephone, he was to transfer the person to other people on the staff with more knowledge and
experience, such as the Computer Consultants or the Networking Technician. Trans. pp 20-21.

20.    As a Support Technician, Petitioner was in a support position to the Computer
Consultants, who Ms. Justice described as "the top folks" in the department in terms of computer
knowledge and experience. Trans. pp 20-21.

21.      If Petitioner could not solve a computer problem over the telephone, he was to pass that
call -- and that problem -- over to the Computer Consultants. Trans. p 20. For Ms. Justice, as
Client Services Manager of the Computer Center, it was important, once Petitioner had passed a
problem on to the Computer Consultants, that Petitioner "let go" of the problem and let the
Computer Consultants try to resolve it, and that he should then concentrate on new incoming
telephone calls. Trans. p 20. Ms. Justice testified that "that's how we work." Trans. p 20.

22.     Petitioner's performance was "adequate" during the first few months of the new position.
Trans. I p 15. Others in the Computer Center reported to Ms. Justice that Petitioner was asking
some of the same questions over and over. Trans. p 17.

23.    In November 1998, while Petitioner was still in the probationary period of his new job,
Ms. Justice received reports of a dramatic incident between Petitioner and co-workers. Trans. p
145 & pp 17-18; Petitioner's Exhibits 6, 6A & 6B. The incident was prompted by a student who
came into the Computer Center just before 5 p.m., asking for help with a computer disk. Pet.
Exhibit 6B; Trans. pp 143-45.

24.   Several people in the center, including Sue Levere and Carlos Benavente -- both of whom
were Computer Consultants, and thus the "top folks" in the center in terms of computer
knowledge and experience, Trans. pp 20-21 -- tried to help the student, but were unable to. Pet.
Ex. 6B. The Consultants determined that the student's disk was damaged, and her files were
damaged and could not be retrieved. Pet. Ex. 6B. Upset that her files could not be retrieved, the
student left in tears. Pet. Ex. 6B.

25.     By the time the student left, it was after 5 p.m. Trans. p 143; Pet. Ex. 6B.

26.     Although his shift had ended at 5 p.m., Petitioner was still in the center, noticed the
student leave, and was disturbed because he did not think the others had done enough to help the
student. Trans. p 144. Petitioner felt -- but did not know -- that he could have done more to help
the student. Trans. p 144. Petitioner felt this way even though those who had tried to help the
student had higher-level job classifications and more computer knowledge and experience than
he did. Trans. p 144-45.

27.    After the student left, Petitioner approached Computer Consultant Sue Levere, and began
to question Ms. Levere about what had been done. Pet. Ex. 6B. Petitioner was angry with Ms.
Levere because he had not been included in the process, and thought he could have done more
than Ms. Levere and Mr. Benavente had done. Pet. Ex. 6B.

28.     Other workers were in the Computer Center during this conversation, and at some point
Petitioner "blew up" and "started yelling" that he was trying to talk about a work-related issue
and that the others should either be quiet or leave. Pet. Ex. 6, 6A & 6B.

29.    One of the co-workers responded that they, too, were talking about work-related issues,
and pointed out that Petitioner's shift had already ended. Pet. Ex. 6, 6A & 6B.

30.    Although Petitioner disputed certain characterizations of the co-workers' accounts of the
incident, he admitted that it was a dramatic incident; he admitted raising his voice; and he
admitted that he was the first to raise his voice. Trans. pp 145-47.

31.    Petitioner also admitted that during this incident, he was second-guessing attempts that
individuals with higher-level job expertise had already made to help the student. Trans. p 144.

32.     In November 1998, when Ms. Justice received reports of this incident, she spoke with
Petitioner and he confirmed that there had been a confrontation with some of the other staff.
Trans. p 18. Ms. Justice told Petitioner that it was unacceptable to shout and raise voices in the
center, and that "if he was going to be in the office in the evenings, he needed to be away from
his station and work at another available station." Trans. p 17-18. Ms. Justice again told
Petitioner that he could come in after his work hours only if he did not interfere with those who
were working the evening shift. Trans. p 18.

33.     Petitioner's job performance did not improve after this incident, Trans. p 19, and in
February 1999 Ms. Justice decided to extend Petitioner's probationary period. Trans. p 20. She
was not convinced that he was able to do the job adequately, and she was also concerned about
his ability to work with other staff members. Trans. p 21. Ms. Justice met with Petitioner to
notify him that she was extending his probationary period, and also to discuss these issues with
him. Trans. pp 21-22.

34.    In that meeting, Ms. Justice also spoke with Petitioner about the Computer Center's
workflow concept and "how he was handling some of the calls that were coming in to him."
Trans. p 19. Petitioner was having trouble letting go of calls that had come in to him, was having
trouble passing them on to the Computer Consultants, and was having trouble letting the
Computer Consultants try to resolve the problem after he had passed it on. Trans. p 20.

35.     Ms. Justice testified that Petitioner was going at the user and the consultants were trying
to talk with the user, and people were getting confused on who said what and who was going to
do what.

And I counseled him that when you're -- when you pass it onto someone, let them take it. You
let go of it and let them have it . . . to try and get him to understand a little better how -- [that]
that's how we work. Trans. p 20. Ms. Justice counseled Petitioner to "try to learn the procedures
and . . . work better with the folks." Trans. p 21.

36.    A few weeks later, in March 1999, Ms. Justice decided to dismiss Petitioner from his
probationary employment. Trans. p 22; Resp. Ex. 1. She made that decision based in large part
on an incident the prior week that, to her, indicated that Petitioner did not understand[] what he
should be doing or how he should be working with other staff in the unit. Trans. p 23.

37.    Specifically, Petitioner had taken telephone calls from a faculty member, Dr. Rita Noel,
about a computer problem. Petitioner had been unable to solve the problem over the telephone,
and despite having passed the problem on to the Computer Consultants, Petitioner violated
procedure by going to the professor's office himself, without telling anyone that he was doing so.
Trans. p 23 & pp 43-44.

38.    Before making the decision to dismiss Petitioner, Ms. Justice scheduled a meeting with
him to talk about the incident. Pet. Ex. 7A ("I want to meet with you this afternoon . . . to
discuss your visit to Dr. Noel's office").

39.     At the hearing, Petitioner testified that he knew he was taking a risk by going to Dr.
Noel's office that day. Trans. p 106. He suggested that he went because Dr. Noel had been
trying for a long time to have her computer fixed, and that, in his judgment, the Consultants had
not responded to Dr. Noel's requests with sufficient promptness. Trans. pp 100-01. Thus,
Petitioner's evidence tended to suggest that he went to Dr. Noel's office that day to try and fix her
computer because he did not believe that anyone else in the Computer Center was giving her
problem the attention he believed it deserved.

40.    Respondent's evidence was that, as a Computer Support Technician, Petitioner's primary
responsibility was to take telephone calls about computer problems, and to try to solve computer
problems over the telephone, and not to make office calls -- but rather to pass problems that
could not be solved over the telephone on to the Computer Consultants, who had greater
knowledge and experience; and that Petitioner's job, above all, was to work in support of and in
conjunction with those higher-level Computer Consultants. Trans. p 23-24.

41.    Ms. Justice specifically testified that it was "not normal that [Petitioner] should just get
up and make an office call on his own." Trans. p 23.

42.     She also testified that she had, only recently, counseled Petitioner on the importance of
his understanding and following the Computer Center's normal workflow. Trans. p 24.
Petitioner, on cross-examination, acknowledged that Ms. Justice had counseled him in early
February 1999 and told him she had questions about his understanding of the workflow. Trans.
pp 173-74.

43.     For Ms. Justice, Petitioner's decision, in March 1999, to violate the Center's workflow
plan and make an office call
. . . was just more of the same. I had talked with [Petitioner] not long before that, in February,
about the same type of need for communication and coordination with the other staff, and here it
is a month, month and a half later, and he's still doing the same kinds -- or not doing the types of
things that I had asked him to do. And I did not, in my judgment, think he was going to ever
really understand how the workflow was in our unit. Trans. p 24.

44.     In the letter communicating her decision to end Petitioner's probationary employment,
Ms. Justice wrote:
The main factors underlying my decision include things I have discussed with you on other
occasions. Although you are experienced with computers and related technology, you have not
demonstrated an adequate knowledge and understanding of the application and network
resources we support for the university. As importantly, you have not demonstrated the ability to
form good working relationships with other staff members. In the Client Services section, with a
relatively small staff and large support responsibilities, I need staff members who can work as a
cohesive unit. Also, your judgment on how to handle support requests has at times conflicted
with what was expected of you. Resp. Ex. 1.

45.    Ms. Justice testified that Petitioner's gender did not have anything to do with her decision
to dismiss him; that Petitioner's age did not have anything to do with her decision to dismiss him;
that any disability the Petitioner may have had nothing to do with her decision to dismiss him;
that any complaints Petitioner made did not have anything to do with her decision to dismiss
him; and that Petitioner's veteran status did not have anything to do with her decision to dismiss
him. Trans. p 24.

46.     Ms. Justice testified that since she dismissed Petitioner, he has applied for "just about
every vacancy I've had" in the Computer Center. Trans. p 27. She has not rehired him. Ms.
Justice testified that Petitioner's gender did not have anything to do with her decision not to
rehire him; that Petitioner's age did not have anything to do with her decision not to rehire him;
that any disability the Petitioner may have had nothing to do with her decision not to rehire him;
that any complaints Petitioner made did not have anything to do with her decision not to rehire
him; that Petitioner's veteran status did not have anything to do with her decision not to rehire
him; and that the petitions he has filed did not have anything to do with her decision not to rehire
him. Trans. p 27.

47.    Ms. Justice testified that the reason she has not rehired Petitioner is that I've employed
him previously, and it didn't work out. And things have not changed, to my knowledge, that
much on my end or his end, and I -- it didn't work before, and I'm just not willing to try it again.
Trans. p 27.

48.    In July 1998, when Petitioner was still employed in the temporary, time-limited, non-
SPA position as a help-desk assistant, Ms. Justice requested an increase in his hourly wage.
Trans. p 29. In the memorandum requesting that raise, Ms. Justice wrote that she hoped to
convert Petitioner to "a regular SPA position," and that he was "a reliable and competent
employee who we would hate to lose." Trans. p 29.

49.     At the hearing, Petitioner asked Ms. Justice what had changed between July 1998, when
she wrote that memorandum, and March 1999, when she dismissed him. Trans. p 30. Ms.
Justice replied that the memorandum concerned his performance in the hourly position in the
Hunter Laboratory, and not his performance as a Computer Support Technician, which is a
different job with different duties. Trans. p 31.

50.     Petitioner presented no direct evidence of the ages of anyone in the Computer Center to
whom he would compare himself. In fact, he admitted that he did not know the ages of the
people involved. Trans. p 158-59 (Q: "You don't know the ages of any of these people, do
you?" A: "Let's see. One or two may have told me their age, but I can't remember and I cannot
recollect, so the answer is no.").

       The Hunter Library position: 99 OSP 1347.

51.     Nancy Kolenbrander is head of the Government Documents Unit of the Hunter Library at
WCU. Trans. p 61. After Petitioner was dismissed from the Computer Center, he applied for a
position at the Hunter Library. Petition 99 OSP 1347 & Trans. pp 62-63.

52.     Ms. Kolenbrander reviewed Petitioner's application, but did not interview him for the
position, and filled the position with another applicant. Trans. p 66.

53.    Ms. Kolenbrander decided not to interview Petitioner for that position because she had a
good pool of applicants with specific experience related to the skills she was looking for. Trans.
p 64.

54.     Her decision was also based on the fact that Petitioner's application made plain that he
had been dismissed from employment at WCU twice in a period of roughly three and a half
years, which made her "cautious" about offering him further employment at WCU. Trans. pp 64
& 73.

55.   Ms. Kolenbrander's decision was also based on her observation of Petitioner during the
time when he worked in the Hunter Library. Trans. p 64. Ms. Kolenbrander, based on her
observation of Petitioner when he worked in the Hunter Library, "wouldn't characterize
[Petitioner] as an industrious employee." Trans. p 64. Based on her personal observation of
Petitioner when he previously had worked in the Hunter Library, she felt that Petitioner was not
"industrious in terms of diligently attending to responsibilities." Trans. pp 73-74.

56.     Ms. Kolenbrander testified that Petitioner's gender did not have anything to do with her
decision not to hire him; that Petitioner's age did not have anything to do with her decision not to
hire him; that any disability the Petitioner may have had nothing to do with her decision not to
hire him (in fact, she testified that she was unaware of any disability that he may have or may
have had); that Petitioner's veteran status did not have anything to do with her decision not to
hire him. Trans. pp 66-67.

57.     At the hearing, Petitioner admitted that the decision not to hire him for the Hunter Library
position was not the result of sex discrimination (Trans. p 137), was not the result of age
discrimination (Trans. pp 138-39), and was not the result of discrimination based on any
disability. Trans. p 139.

58.    Ms. Kolenbrander also testified that, when she was filling the position in question, she
did not know that Petitioner had filed petitions challenging WCU's employment decisions.
Trans. p 66.

                                   CONCLUSIONS OF LAW

I.     JURISDICTION.

1.             By a motion filed on July 20, 1999, Respondent moved to dismiss 99 OSP 0870
(the petition challenging dismissal), on grounds that Mr. Long did not have two years of
continuous state employment, was not a career state employee for purposes of the State
Personnel Act under N.C. Gen. 126-1.1, was not generally subject to the State Personnel Act,
and was exempted from those portions that allow him to appeal from a dismissal of employment.
See N.C. Gen. Stat. § 126-5(c)(1). The motion was denied by an order entered January 7, 2000.

2.              As to the petitions challenging WCU's decisions not to rehire Petitioner,
jurisdiction exists pursuant to N.C. Gen. Stat. 126-36.1.

II.    VETERAN'S PREFERENCE CLAIMS.

3.              One of Petitioner's claims is that he was denied a veteran's preference. However,
"the application of veteran's preference shall apply in RIF [Reduction in Force] situations and
initial selection only." N.C. Admin. Code tit. 25, r. 1H.0614. Because neither a RIF nor an
initial selection is at issue in this case, Petitioner does not have a viable veteran's preference
claim.

4.     At times, the Petitioner appeared to argue that he was discriminated against on the basis
of his veteran status. But nothing in the anti-discrimination section of North Carolina's State
Personnel Act, N.C. Gen. Stat. 126-36, and nothing anywhere else in the State Personnel Act,
authorizes a claim for discrimination on the basis of veteran status.

III.   DISCRIMINATION AND RETALIATION CLAIMS: OVERVIEW.

5.     Discrimination and retaliation claims under N.C. Gen. Stat. 126-36 are determined in
accordance with the evidentiary standards and principles of law governing race discrimination
claims under Title VII of the Civil Rights Act of 1991, as amended, 42 U.S.C. '' 2000e, et seq.
North Carolina Dept of Correction v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983). In
such claims, the employee has the continuing and ultimate burden of proof to show, by the
preponderance of the evidence, that the employer intentionally discriminated or retaliated against
him on an illegal basis. See, e.g., Reeves v. Sanderson Plumbing Prods. Inc., U.S., 120 S. Ct.
2097, 2106, 147 L. Ed. 2d 105 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509-10,
113 S. Ct. 2742, 125 L. Ed. 2d 407, 418-19 (1993); North Carolina Dept of Correction v. Hodge,
99 N.C. App. 602, 606, 394 S.E.2d 285 (1990); Gibson, 308 N.C. at 138-39, 301 S.E.2d at 83.

6.      Petitioner "at all times bears the ultimate burden of persuasion." St. Mary's Honor
Center, 509 U.S. at 507, 113 S. Ct. at 2747, 125 L. Ed. 2d at 416 (internal quotation marks and
citations omitted).

7.      Because Petitioner presented no direct evidence of discrimination or retaliation, he must
proceed under the analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct.
1817, 1824, 36 L. Ed. 2d 668 (1973). The first step in that analysis is determining whether
Petitioner has carried his burden of establishing a prima facie case.

8.      If, and only if, Petitioner has carried the burden of establishing a prima facie case, the
analysis proceeds to the second step: determining whether Respondent has articulated legitimate
reasons for the actions which are alleged to be discriminatory and retaliatory. At this point, any
presumption raised by the prima facie case has been rebutted and now "drops from the case," and
the enquiry moves to "a new level of specificity." Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 254-55 (1981); accord St. Mary's Honor Center, 509 U.S. at 507, 113 S. Ct. at
2747, 125 L. Ed. 2d at 418-19. To prevail, the Petitioner must prove first, that all the proffered
reasons are false, and second, that the real reason he was dismissed or not hired was
discrimination or retaliation. Reeves v. Sanderson Plumbing Prods. Inc., U.S., 120 S. Ct. 2097,
210-07, 147 L. Ed. 2d 105 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509-10, 113
S. Ct. 2742, 125 L. Ed. 2d 407, 418-19 (1993).

9.      This last requirement is subject to a strict causation test. It is not enough for the
Petitioner to show that he was of a certain sex or age, or was disabled, or complained, and was
dismissed (or not hired); rather, he must prove "that he was not promoted because of" his age,
sex, or disability, or his complaints. Autry v. N.C. Dep't of Human Resources, 820 F. 2d 1384,
1386 (4th Cir. 1987) (emphasis in original) (citing Burdine); accord Holder v. City of Raleigh,
867 F.2d 823, 827 (4th Cir. 1989).

IV.   FAILURE TO HIRE PETITIONER FOR THE HUNTER LIBRARY POSITION:
99 OSP 1347.
10.     One of the petitions heard in October 2000 involved Nancy Kolenbrander's decision not
to hire Petitioner for a position at Hunter Library. Given the Petitioner's admissions that that
decision was not the result of sex discrimination (Trans. p 137), was not the result of age
discrimination (Trans. pp 138-39), and was not the result of disability discrimination (Trans. p
139), his discrimination claims about this position are without merit.

11.     Given Ms. Kolenbrander's testimony that when she was filling the position in question,
she did not know that Petitioner had filed petitions challenging WCU's decision to dismiss him
(Trans. p 66), his retaliation claim about this position is also without merit.

12.       Moreover, Ms. Kolenbrander articulated legitimate, non-discriminatory and non-
retaliatory reasons for her decision not to hire Petitioner: there were other, more qualified
applicants to choose from (Trans. p 64); Petitioner's application made plain that he had been
dismissed from employment at WCU twice in a period of roughly three and a half years, which
made her "cautious" about offering him further employment at WCU (Trans. pp 64 & 73); and
based on her personal observation of Petitioner during his prior employment in the Hunter
Library, she did not feel he was "industrious in terms of diligently attending to responsibilities."
Trans. pp 73-74; see also Trans. p 64 ("my observation of his behaviors, I wouldn't characterize
him as an industrious employee").

13.     Petitioner presented no evidence that these articulated reasons were pretext, and
presented no evidence that any of these articulated reasons were pretext for illegal discrimination
or retaliation. For this additional reason, Petitioner's claims about the Hunter Library position
are without merit.

V.   PETITIONER'S DISMISSAL FROM PROBATIONARY EMPLOYMENT IN
THE COMPUTER CENTER: 99 OSP 0870.

14.     The other six petitions heard in October 2000 involve positions at the Computer Center.
More specifically, one involves Ms. Justice's decision to dismiss Petitioner from the Computer
Center (99 OSP 0870), and the other five involve her decisions not to rehire Petitioner for vacant
positions at the Computer Center (00 OSP 0413, 00 OSP 0745, 00 OSP 0821, 00 OSP 0822, and
00 OSP 1094). This decision will deal with the dismissal (petition 99 OSP 0870) first.

15.    Petitioner alleged that his dismissal was discriminatory, and that it was retaliatory. This
decision will deal first with the allegation that the dismissal was discriminatory.

A.     Discriminatory dismissal: legal standards.

16.    The most common method of making out a prima facie case of discrimination in the
context of employment discipline (such as dismissal) is for the Petitioner to establish that

--             he is a member of a protected class (in this case, the
               relevant categories are age, sex, and disability);
--             the conduct he was disciplined for is comparable in
               seriousness to conduct of employees outside the protected
               class; and

--             the disciplinary measures enforced against him for that
               conduct were more severe than those enforced against the
               other employees outside the protected class, who engaged
               in comparable misconduct.

See Moore v. City of Charlotte, 754 F.2d 1100, 1105-06 (4th Cir. 1985).

       1.      Petitioner has not made out a prima facie case of discriminatory dismissal.

17.            It is not clear that Petitioner has made out even a prima facie case of
discrimination based on sex, age, or discrimination. It is not, for example, at all clear that a
white male is a member of a protected class, even if he is supervised by a female.

18.         Petitioner has not presented direct evidence of the age of anyone else to whom he
would compare himself, and, in fact, admitted that he did not know the ages of the people to
whom he sought to compare himself. See Trans. pp 158-59.

19.     Nor did Petitioner establish that he is handicapped as defined by N.C. Gen. Stat. 168A-3.
See N.C. Gen. Stat. 126-36(a) (incorporating definition of "handicapping condition" set out in
N.C. Gen. Stat. 168A-3). First, although Petitioner asserted in this testimony that he was
depressed (e.g., Trans. pp 81-85), he did not present any direct medical evidence to support that
assertion. In fact, his testimony indicates that the purported diagnosis of depression was in part
based on his research and conversations with his wife. See, e.g., Trans. p 84 ("just from the
research . . . I was able to determine my type of depression, plus my wife being a nurse and
pharmacy technician"). Petitioner presented no authority for finding a handicapping condition,
under North Carolina's handicap statute, based on such slim evidence: Petitioner's unsupported
and uncorroborated testimony of a medical condition that he is not qualified to diagnose.

20.     Moreover, North Carolina's courts have made it quite clear that a handicap or disability in
the context of Chapter 168A of the North Carolina General Statutes is defined as a present, non-
correctable loss of function which substantially impairs a person’s ability to function normally.
Pressman v. University of North Carolina at Charlotte, 78 N.C. App. 296, 304, 337 S.E.2d 644,
649 (1985) (quoting Burgess v. Brewing Co., 298 N.C. 520, 528, 259 S.E.2d 248, 253 (1979)).
Thus, as the Court of Appeals pointed out in Pressman, occasional episodes of stress, depression
and mental exhaustion are not disabilities because they are not present and noncorrectable losses
of function. Id. (emphasis added). Accord Burgess, 298 N.C. at 528, 259 S.E.2d at 253-54
(Fairly construed, the remedial provisions of [N.C. Gen. Stat. 168-1] are intended to aid only
those who are presently disabled. The problems of individuals, not presently disabled, who
suffer from conditions which may or may not disable them in the future are beyond the scope of
the statute. Such individuals are not handicapped persons within the meaning of the statute as
presently written). If Petitioner was depressed, but (as he testified), his depression was
correctable by medication, then he was not disabled under North Carolina's statute.
21.    Further, North Carolina's statute defines a “handicapped person” as one who

               (i) has a physical or mental impairment which substantially
                limits one or more major life activities; (ii) has a record of such an
               impairment; or (iii)is regarded as having such an impairment.

N.C. Gen. Stat. 168A-4.

22.     Applying the foregoing precedents to Petitioner’s allegations, it is clear that he is not a
handicapped person and is not substantially limited in one or more major life activities. First,
Petitioner testified only that he was depressed and treated for depression. Petitioner did not
present evidence that his condition substantially limits one or more major life activities. Further,
Petitioner did not present substantial evidence that his treatment consisted of more than an
occasional episode of stress, depression and mental exhaustion. Thus, Petitioner’s diagnosis and
treatment is not [a] disabilit[y] because [it is] not [a] present and noncorrectable loss of function.
Pressman, 78 N.C. App. at 304, 337 S.E.2d at 649; Burgess v. Brewing Co., 298 N.C. at 528,
259 S.E.2d at 253. Thus, Petitioner’s condition, which does not substantially limit him in one or
more major life activities, is identical to that of the plaintiff in the Pressman case -- but is even
less, as Petitioner alleges only one episode of depression. Accordingly, as a matter of law,
Petitioner, just like the plaintiff in Pressman, is not a handicapped person within the coverage of
Chapter 168. Pressman, 78 N.C. App. at 304, 337 S.E.2d at 649. Accord Burgess, 326 N.C. at
214, 388 S.E.2d at 139-140; Burgess, 298 N.C. at 528, 259 S.E.2d at 253; Gravitte v. Mitsubishi
Semiconductor America, 109 N.C. App. 466, 471, 428 S.E.2d 254, 257-58 (1993).

23.    In sum, Petitioner has not established a prima facie case of age discrimination, sex
discrimination, or disability discrimination, and is not entitled to relief on this claim.

       2.      Ms. Justice has articulated reasons for dismissing Petitioner.

24.     Even if Petitioner has established a prima facie case of discrimination, WCU has
articulated no discriminatory reasons for its decision to dismiss him. In the letter communicating
her decision to end Petitioner's probationary employment, Ms. Justice wrote:

          . . . you have not demonstrated an adequate knowledge and understanding of the
application and network resources we support for the university. As importantly, you have not
demonstrated the ability to form good working relationships with other staff members. In the
Client Services section, with a relatively small staff and large support responsibilities, I need
staff members who can work as a cohesive unit. Also, your judgment on how to handle support
requests has at times conflicted with what was expected of you.

Resp. Ex. 1. Evidence in the record supports those reasons.

25.  Specifically, Petitioner himself was unsure about his knowledge and understanding of the
Computer Center's work and felt that, because of his age, he was slower to catch on to things,
Trans. p 166, and he wanted to spend extra time, when it was not his shift, becoming familiar
with the network and applications. Trans. p 16.

26.    Evidence also shows that Petitioner was asking some of the same questions over and
over, Trans. p 17, which is another indication that he lacked knowledge and understanding of the
Computer Center's work.

27.     Ms. Justice had, just the month before the incident involving Dr. Noel, extended
Petitioner' probationary employment period in large part because she was not convinced that
Petitioner was able to do the job adequately. Trans. pp 20-21.

28.       Evidence in the record also supports the statement that Petitioner's judgment on how to
handle support requests at times conflicted with what was expected of him. Specifically, another
reason Ms. Justice had recently extended Petitioner's probationary period was her concern about
"how [Petitioner] was handling some of the calls that were coming in to him." Trans. p 19.
Petitioner's job was to try to resolve computer problems by telephone, and if he could not, then to
pass that call -- and that problem -- over to the Computer Consultants. Trans. p 20. Ms. Justice
testified that "that's how we work." Trans. p 20.

29.     Ms. Justice had counseled Petitioner on the importance of his understanding and
following the Computer Center's workflow. Trans. p 24. Petitioner was having trouble letting
go of calls that had come in to him, was having trouble passing them on to the Computer
Consultants, and was having trouble letting the Computer Consultants try to resolve the problem
after he had passed it on. Trans. p 20. Ms. Justice had counseled Petitioner to "try to learn the
procedures and . . . work better with the folks." Trans. p 21.

30.     Ms. Justice testified that Petitioner was going at the user and the consultants were trying
to talk with the user, and people were getting confused on who said what and who was going to
do what.

                  And I counseled him that when you're – when you pass it onto someone, let them
       take it.
               You let go of it and let them have it . . . to try and get him to understand a little
       better how -- [that] that's how we work. Trans. p 20.

31.    In making an office call on Dr. Noel, Petitioner was (to paraphrase Ms. Justice's direct
testimony) violating
how the Computer Center worked. The violations were several: he was supposed to provide
telephone support, and not make office calls; he was supposed to pass computer problems he
could not solve over the telephone on to the Computer Consultants, who had greater knowledge
and experience; and he was supposed to work in conjunction with those higher-level Computer
Consultants, so as to avoid "confus[ion] on who said what and who was going to do what."
Trans. p 20.

32.    Ms. Justice testified that
               I did not, in my judgment, think he was going to ever really understand
               how the workflow was in our unit. Trans. p 24.

33.    Respondent having articulated legitimate reasons for the dismissal, Petitioner has the
burden of proving those reasons are pretext for illegal discrimination. Reeves, U.S. at, 120 S. Ct.
at 210-07, 147 L. Ed. 2d 105. Petitioner has not done so.

34.      Petitioner may not make that showing by attempting to discredit the Computer Center
operations, or criticizing "how the workflow was" in the Computer Center, or by complaining
that, in his judgment, Dr. Noel's problem should have been addressed sooner. It is irrelevant that
the Petitioner, or a court or an ALJ or the State Personnel Commission might prefer a workflow
other than the one the Computer Center used, because disagreement with the workflow does not
support a finding of discrimination. Wileman v. Frank, 979 F.2d 30, 38 (4th Cir. 1992) (court
may not substitute its judgment for that of the employer) (citing Texas v. Burdine, 450 U.S. 248,
259, 101 S. Ct. 1089, 1097, 67 L. Ed. 2d 207, 219(1981)). This is because courts have no
authority simply to require employers to use the 'best' standards and procedures available to
them.
Holder, 867 F.2d at 828 (citing Furnco Construction Corp. v. Waters, 438 U.S. 567, 578, 98 S.
Ct. 2943, 2950, 57 L. Ed. 2d 957 (1978) (not up to courts to "restructure business practices")).
See also N.C. A&T v. Kimber, 49 N.C. App. 46, 52, 270 S.E.2d 492 (1980) (legislature did not
intend "Personnel Commission to sit as a 'Super Employment Committee' . . . to substitute its
judgment" on employment decisions).

35.      The Petitioner, or even a court or an ALJ or the State Personnel Commission may
consider a decision to be a bad one, but as a matter of law, that does not make it a discriminatory
decision. And without proof of discrimination, a judicially-imposed remedy is "without warrant
in the law." Holder, 867 F.2d at 828.

36.    The issue is not whether WCU made a wise decision in dismissing Petitioner, but
whether WCU intentionally discriminated against him on the basis of an illegal factor. U. S.
Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S. Ct. 1478, 1482, 75 L. Ed.
2d 403, 410 (1983); Jiminez v. Mary Washington College, 57 F.3d 369, 377 (4th Cir.), cert.
denied, 516 U.S. 944 (1995). [A]n employer’s reason for his action may be a good reason, a bad
reason, a mistaken reason, or no reason at all, as long as the decision was not based on race
and/or sex or other unlawful discriminatory criteria. Grier v. Casey, 643 F. Supp. 298, 308
(W.D.N.C. 1986).

37.    Finally, the Fourth Circuit has made clear that those who knowingly hire workers within
a protected class "seldom will be credible targets" for charges of pretext in discrimination suits.
Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991); see also Jiminez v. Mary Washington
College, 57 F.3d 369, 377-78 (4th Cir. 1995), cert. denied, --- U.S. ---, 116 S. Ct. 380, 133 L. Ed.
2d 304 (1995); Mitchell v. Data General Corp., 12 F.3d 1310, 1318 (4th Cir. 1991); Abron v.
N.C. Dep't of Corrections, 90 N.C. App. 229, 232-33, 368 S.E.2d 203, 206 (1988).

B.     Retaliatory dismissal: legal standards.
38.     To make out a prima facie claim of retaliation, Petitioner must show that he engaged in
protected activity, that he suffered adverse employment action, and that there are some grounds
for inferring a causal connection between the protected activity and the adverse action. Ross v.
Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985) (citing Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248 (1981)).

39.     Under the anti-retaliation portion of North Carolina's State Personnel Act, the protected
activity is "opposition to alleged discrimination." N.C. Gen. Stat. 126-36(a).

40.     Before the hearing, the parties stipulated that petitioner "communicated, by e-mail and
verbally, to Bob Anders and Debbie Justice complaints about what [Petitioner] considered to be
a 'party-like atmosphere' and vulgar language during the evening shift." Petitioner also testified
that, during the meeting with Ms. Justice about the Dr. Noel incident, he complained about
language that he considered vulgar. Trans. p 175.

41.     It is not clear that any of Petitioner's complaints constitute "opposition to alleged
discrimination," so as to be protected under N.C. Gen. Stat. §126-36(a), so that Petitioner can be
considered to have engaged in protected activity. Nor is it clear that Petitioner has shown any
basis for inferring a causal connection between his protected activity and Ms. Justice's decision
to dismiss him. In short, it is not clear that Petitioner has made out a prima facie case of
retaliatory dismissal.

42.     But even if Petitioner has made out a prima facie case of retaliatory dismissal, WCU has
articulated legitimate reasons for dismissing him. See Conclusions of Law 24-38. And just as
Petitioner has not proved that those reasons are pretext for illegal discrimination, he has not
proved that they are pretext for retaliation.

43.     As a result, Petitioner did not establish that his dismissal was retaliatory under N.C. Gen.
Stat. § 126-36, and he is not entitled to relief on this claim.

VI.    FAILURE TO REHIRE IN THE COMPUTER CENTER: 00 OSP 0413,
       00 OSP 0745, 00 OSP 0821, 00 OSP 0822, and 00 OSP 1094.

A.     Discriminatory failure to rehire.

44.     In the context of failure to hire or failure to promote, Petitioner makes out a prima facie
case by showing that (1) he is a member of a protected class; (2) he applied and was qualified for
a job for which WCU was seeking applicants; and (3) he was rejected in favor of a person who is
not a member of the protected minority under circumstances giving rise to an inference of
unlawful discrimination. E.g., Ellison v. First Citizens Bank & Trust Co., 1998 U.S. App. LEXIS
10804, *4 (4th Cir. 1998); Brown v. McLean, 159 F.3d 898, 902 (4th Cir. 1998), cert. denied,
U.S. , 119 S. Ct. 1577, 143 L. Ed. 2d 672 (1999) (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)); Carter v. Ball, 33 F.3d 450, 458 (4th
Cir. 1994); Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 910 n.1 (4th Cir. 1989).
45.     For the same reasons outlined above, see Conclusions of Law Again, 17-23, it is not clear
that Petitioner has made out a prima facie case of discrimination in terms of the decision not to
rehire him into the Computer Center, once he had been dismissed.

46.     Even if Petitioner has made out a prima facie of discrimination in the decision not to
rehire him in the Computer Center, WCU has articulated legitimate reasons for not rehiring him
into the Computer Center. Ms. Justice testified that the reason she has not rehired Petitioner is
that

                    I've employed him previously, and it didn't work out. And things
                    have not changed, to my knowledge,
                    that much on my end or his end, and I -- it didn't work before, and
                    I'm just not willing to try it again. Trans. p 27.

47.     Petitioner has not proved that reason to be a pretext for illegal discrimination, and thus he
is not entitled to relief on any of these claims.

B.     Retaliatory failure to hire.

48.     Because Petitioner's numerous petitions allege various forms of discrimination, those
petitions constitute activity that is protected by N.C. Gen. Stat. § 126-36. As a result, Petitioner
has made out a prima facie case of retaliatory failure to hire under that statute.

49.    However, WCU has articulated legitimate reasons for not rehiring him into the Computer
Center: Ms. Justice's testimony that Petitioner's prior employment did not end successfully.

50.     Petitioner has not proved that reason to be a pretext for illegal retaliation, and thus he is
not entitled to relief on any of these claims.

                                 RECOMMENDED DECISION

       That the Petitions for Contested Case Hearing be dismissed.

                                             ORDER

       It is hereby ordered that the State Personnel Commission, as the agency making the final
decision in this case, serve a copy of that final decision on the Office of Administrative Hearings,
P.O. Drawer 27447, Raleigh, NC 27611-7447, in accordance with N.C. Gen Stat. 150B-36(b).

                                             NOTICE

        The agency making the final decision in this case is required to give each party an
opportunity to file exceptions to this recommended decision and to present written arguments to
those in the agency who will make the final decision. N.C. Gen. Stat. 150B-36(a).
        The agency is required by N.C. Gen Stat. 150B-36(b) to serve a copy of the final decision
on all parties and to furnish a copy to the parties or their attorneys 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 31st day of January, 2001.


                                              _____________________________
                                              Sammie Chess, Jr.
                                              Administrative Law Judge

				
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