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STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF LINCOLN 99 OSP 1085
TIMOTHY RAMEY )
Petitioner, )
)
v. ) RECOMMENDED DECISION
)
N.C. DEPT. OF CORRECTION )
Respondent. )
This contested case was heard before Administrative Law Judge Sammie Chess, Jr. on
October 26, 2000, in Charlotte, North Carolina.
APPEARANCES
For Petitioner: David A. Phillips, Esq.
The Phillips Law Firm
Post Office Box 1172
Gastonia, N.C. 28503
For Respondent: John P. Scherer II
State Bar # 19259
Assistant Attorney General
North Carolina Department of Justice
P.O. Box 629
Raleigh, North Carolina 27602-0629
WITNESSES
For Petitioner: Timothy Ramey, Petitioner
For Respondent: Ronald Jones, former Superintendent, Lincoln Correctional
Center (LCC)
Donald Morrison, Asst. Superintendent, LCC
David Rankin, Correctional Officer, LCC
Ronnie Avery, Correctional Officer, LCC
Steven Boyles, Superintendent, LCC
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EXHIBITS
Petitioner offered no exhibits.
The following exhibits offered by the Respondent were received into evidence:
Respondent’s Exhibits 1-13.
ISSUE
Whether the Petitioner has proven by a preponderance of the evidence that he was dismissed
without just cause by the Department of Correction for unacceptable personal conduct?
STATEMENT OF THE CASE
Since this contested case commenced prior to January 1, 2001, the parties agreed that
pursuant to Peace v. Employment Security Commission, 349 N.C. 315, 507 S.E.2d 272 (1998), the
Petitioner bears the burden of proving by a preponderance of the evidence that the agency decision to
dismiss him was without just cause.
FINDINGS OF FACT
1. The Office of Administrative Hearings has personal and subject matter jurisdiction of this
contested case pursuant to Chapters 126 and 150B of the North Carolina General Statutes.
2. At the time of his discharge, Petitioner was a permanent State employee subject to Chapter
126 of the General Statutes of North Carolina (the State Personnel Act) and is a citizen and resident
of Lincoln County, North Carolina.
3. Respondent Department of Correction is an agency of the State of North Carolina subject
to Chapter 126 and was the Petitioner’s employer.
4. Petitioner became employed with Respondent on October 1, 1987 a Correctional Officer at
the Lincoln Correctional Center.
5. On April 30, 1999 the Petitioner was discharged from the Department of Correction.
6. Petitioner’s discharge was as a result of Respondent’s allegations against Petitioner for
acts which constituted unacceptable personal conduct. The unacceptable personal conduct consisted
of alleged insubordinate and unprofessional conduct toward a supervisor. Specifically, during a
March 17, 1999 written warning conference with his supervisor, Petitioner removed a Playboy
magazine from his briefcase, looked through the pictures while being counseled, and refused to put
the magazine away until after at least two orders from his supervisor. In addition, Petitioner slid
down in his chair during the conference and pulled his baseball cap over his eyes for a very short
period of time. (Respondent (R) Exh. 2).
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7. Petitioner had been employed by Respondent for over eleven years and had been subject
to a written warning for unacceptable job performance. Petitioner failed to report a traffic accident
that involved a state vehicle, which was reported by a subordinate employee. This written warning
was the impetus for the March 17, 1999 meeting. (R Exh 12).
8. Ronald Jones, former Superintendent at Lincoln Correctional Center (LCC), has twenty-
seven years experience with the DOC. On March 17, 1999, Mr. Jones scheduled an 8:00 a.m.
conference to issue Petitioner a written warning for unacceptable job performance. Prior to the
conference, Petitioner had received notice of the time and place of the meeting. Petitioner, Mr.
Jones, and Donald Morrison, Assistant Superintendent at LCC, were present. Supt. Jones had met
with Petitioner on previous occasions concerning the incident at the root of the written warning.
Initially, management had considered dismissal, then a demotion, and then finally a written
warning. (Transcript (T), pp. 9-10, 35, 91-96 ).
9. On March 17, 1999, the date in question, Petitioner, attired in casual clothes and
a baseball hat, entered the meeting in Mr. Jones’ office carrying a briefcase. After Petitioner took a
seat, Mr. Jones sat approximately three to four feet directly across from him, while Mr. Morrison sat
to Supt. Jones’ right. In accordance with his normal procedures for employee meetings, Mr. Jones
used a small tape recorder to memorialize the proceedings. He notified Petitioner of the recording,
and then indicated that the purpose of the meeting was to issue the written warning for unacceptable
job performance. Supt. Jones handed Petitioner a copy of the written warning, and asked him to
read the entire document, and to sign the letter acknowledging receipt.
10. Petitioner refused to read or sign the letter.
11. When an employee refused to read or sign a written warning, Mr. Jones would
normally read the entire document to the employee to ensure his or her understanding of the content.
(T, pp. 10-12).
12. Based on a request by Supt. Jones, Petitioner removed his briefcase from Supt. Jones’
desk. It was blocking Supt. Jones’ view. Thereafter, Supt. Jones began to read aloud the written
warning. At various times, Petitioner appeared to be inattentive. He pulled a Playboy magazine
from his briefcase, and began to flip through the pictures.
13. Supt. Jones could see the cover of the magazine and immediately told him to put
it away.
14. Petitioner responded that he was not interrupting, and told Mr. Jones to proceed. Again,
Supt. Jones ordered Petitioner to put the magazine away. Petitioner stated that he was trying to get
his material ready. At that point Supt. Jones turned his attention to reading aloud the first couple of
paragraphs of the written warning. He then paused and noted for the record that Petitioner was
looking at a Playboy magazine. Petitioner replied, “That’s not relevant to this case.” He further
interrupted Supt. Jones stating that, “I do have a Playboy magazine in my briefcase that I was
thumbing through when I was getting my material ready. I was not prepared for this and I’m not
actually looking at the Playboy magazine at this time.” Petitioner had the magazine out for five to
ten minutes prior to putting it away. (R. Exh 11; T, pp. 13-16, 30).
15. After Petitioner’s comments, Supt. Jones continued to read the written warning. While
Mr. Jones was reading, Petitioner pulled his cap down over his eyes, and slouched down in his chair
for approximately thirty seconds. Further, Petitioner interrupted Supt. Jones at least eleven times in
a loud tone of voice. At the close of the meeting, Petitioner took the written warning and left Mr.
Jones’ office. The entire meeting lasted forty-five minutes to an hour. (R. Exh. 11; T., pp. 13, 15-
18).
16. Due to the severity of the situation, Supt. Jones reported the incident to his supervisor,
Steve Bailey, Director of the Western Region. At Mr. Bailey’s request, Supt. Jones listened to the
tape and provided a written statement concerning the events in the meeting. Once he completed his
statement, Mr. Jones had no further involvement in the disciplinary action. Steven Boyles, the new
Superintendent at LCC, took over the investigation. (R. Exh. 9; T., pp. 19, 62).
17. As part of his duties, Donald Morrison, Assistant Superintendent at LCC, was
also present at the meeting on March 17, 1999. He has thirty-five years experience with DOC. He
confirmed that Petitioner refused to read and sign the written warning. As Supt. Jones read the
warning, Asst. Supt. Morrison watched Petitioner. He observed Petitioner remove envelopes from
various political representatives from a briefcase. He also saw Petitioner remove a Playboy
magazine, and look through pages. Asst. Supt. Morrison confirmed that Supt. Jones asked Petitioner
two to three times to put away the magazine before Petitioner complied.
18. After the meeting in the Superintendent’s office, two correctional officers heard
remarks by the Petitioner in the hallway and the prison yard. Both officers had known Petitioner for
several years, and both had no problems with him. David Rankin testified that he heard Petitioner
tell a group of officers that he would not read the written warning, had read a Playboy magazine in
the meeting, and “didn’t care what they done.”
19. Officer Rankin described Petitioner’s tone of voice as irritated, and his demeanor
as not caring what happened.
20. Officer Ronnie Avery saw Petitioner in the hallway outside of the Superintendent’s
office. When Officer Avery asked what they did to Petitioner, Petitioner replied that he did not
listen to them and pulled out a Playboy magazine and started reading it. Officer Avery commented
that management would probably fire Petitioner, but Petitioner did not seem to care. (T., pp. 51-
60).
21. Steve Boyles, who has worked twenty-eight years with the DOC, became
Superintendent at LCC after Ronald Jones’ transfer in late March to early April 1999. Per a request
by his supervisor, Steve Bailey, Supt. Boyles conducted an investigation of the events related to the
March 17, 1999 meeting.
22. After reviewing the statements of Ronald Jones and Donald Morrison and the
transcript, Supt. Boyles met with Petitioner on April 6, 1999. Supt. Boyles advised Petitioner that
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he was conducting an investigation into allegations of insubordination on March 17, 1999.
23. He also advised Petitioner that he was primarily concerned with Petitioner’s
alleged failure to timely put away a Playboy magazine when asked by his supervisor. Further, Supt.
Boyles allowed Petitioner to listen to the tape of the March 17, 1999 meeting and respond.
24. In response, Petitioner claimed that Mr. Jones enticed him to the point that he
reacted negatively. Moreover, Petitioner admitted having the magazine and eventually putting it
away. Finally, Petitioner admitted that he was disrespectful. (R. Exhs. 7-11; T., pp. 61-67).
25. Once he completed his investigation, Supt. Boyles compiled an April 22, 1999
memorandum for Mr. Bailey. Supt. Boyles termed Petitioner’s conduct “the most blatant act of
insubordination that I am aware of in my twenty-seven years experience with DOC.” The
insubordination arose, according to Supt. Boyles, when Petitioner refused to immediately put away
the magazine. Supt. Boyles believed that Petitioner’s bringing the magazine to the meeting and
sliding down in his chair indicated great disrespect toward a supervisor. In Supt. Boyles opinion, if
Petitioner disagreed with the written warning, he could file a statement for placement in his
personnel file. Supt. Boyles found that Petitioner’s conduct was unacceptable and amounted to a
“refusal to follow the orders of a superior or supervisor . . .” In his mind, eventually putting the
magazine away did not amount to compliance with a supervisor’s order. According to Supt. Boyles,
an employee must respond and obey immediately. Finally, Supt. Boyles considered lesser options
than dismissal. Yet, the severity of the insubordination in front of the Superintendent and Assistant
Superintendent warranted dismissal in his view. Therefore, he recommended dismissal on April 21,
1999. (R. Exhs. 3-4; T. pp. 69-73).
26. In his testimony, Petitioner asserted that he was frustrated by repeated meetings over
the subject at issue in the written warning. Petitioner stated that he had at least three meetings over
possible dismissal and demotion prior to the decision to issue a written warning. He admitted that
he was upset and regretted bringing the magazine to the meeting. He denied sliding down in his
chair and ever looking at the magazine. Further, he argued that his frustration drove him to his
behavior, and that he never intentionally disrespected Mr. Jones. Petitioner claimed that he filed a
grievance regarding Mr. Jones’ harassment of him and had received counseling from the Employee
Assistance Program (EAP). Finally, Petitioner claimed that Officers Rankin and Avery were lying
during their testimony. (T., pp. 82-104, 108-117).
27. Petitioner’s explanations and accusations are not credible. First, Petitioner claimed
that frustration over the harassment of multiple meetings on the traffic accident caused his behavior.
These meetings were not harassment. Management conducted these meetings as part of
Petitioner’s due process rights. Petitioner had a pre-dismissal and pre-demotion conference to
present his case. Based on these meetings management apparently decided to issue a written
warning, rather than a stiffer personnel action. Second, Petitioner claims that he never flipped
through or looked at the Playboy magazine in the meeting, and that the transcript (R. Exh. 11) is
inaccurate. Two witnesses, Supt. Jones and Asst. Supt. Morrison, and the transcript of the
proceeding contradict Plaintiff’s assertion. These witnesses and the transcript are more credible on
the issue. Plaintiff did not challenge the accuracy of the tape or the transcript until the hearing.
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28. Third, Petitioner’s claims of no intentional disrespect or insubordination toward Supt.
Jones are not credible. The transcript of the proceedings demonstrates several interruptions by
Petitioner, and further Petitioner’s reaction when asked to put away the magazine shows intentional
disrespect. After Supt. Jones asked him to put the magazine away the first time, Plaintiff stated,
“I’m not interrupting you go ahead.” Next, Supt. Jones ordered him again to put the magazine
away, and Plaintiff said, “I’m trying to get my material ready so I can conduct it.” Finally, when
Supt. Jones noted for the record that Plaintiff was looking at a Playboy, Plaintiff interrupted stating,
“That’s not relevant to this case.” After another comment, Plaintiff interrupted again saying, “I do
have a Playboy magazine in my briefcase that I was thumbing through when I was getting my
material ready. I was not prepared for this and I’m not actually looking at the Playboy magazine at
this time.” Petitioner’s comments and actions in the face of repeated orders to put away the
magazine demonstrate a disrespectful attitude and insubordinate conduct.
29. Finally, Petitioner claims that he complained about the harassment by Supt. Jones by
filing a grievance and obtaining Employee Assistance Program assistance. Yet, at hearing
Petitioner admitted that he only filed a grievance against harassment by a subordinate sergeant, and
he was unable to provide any specifics of a potential grievance against Supt. Jones. Further,
Petitioner did not mention in any of these oral or written statements to Supt. Boyles that Supt.
Jones’ actions had caused him to obtain assistance at EAP. The first time he mentioned such
information was at hearing.
30. On April 14, 1999 Petitioner was notified by certified mail that a Pre-Dismissal
conference was scheduled for April 21, 1999. R Exh. 6. Petitioner made a written reply to this
notification on April 20, 1999. R. Exh. 5. In this reply, Petitioner stated that “at no time did I look
at naked pictures of women or act as if I intended to take a nap.” Id. Further, Petitioner claimed
that this letter was “another way of management harassment, and a way to cause a hostile work
environment for me.” Id.
31. The Department of Correction (DOC) Personnel Manual provides for dismissal of
employees for unacceptable personal misconduct. The policy provides in pertinent part:
All employees of the Department of Correction shall maintain personal
conduct of an acceptable standard as an employee and member of the
community. Violations of this policy may result in disciplinary action
including dismissal without prior warning.
In general, unacceptable personal conduct includes among other things:
conduct for which no reasonable person should expect to receive a prior warning; or;
the willful violation of known or written work rules;
or
conduct unbecoming a state employee that is detrimental to state service.
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The policy further provides the following example as one of personal misconduct:
Insubordination: Refusal to follow the orders of a superior or supervisor; or refusal tofollow
established policy or practice;
(R Exh. 13).
26. Petitioner appealed the Respondent’s decision to discharge him to the Secretary of the
Department of Correction. The Secretary upheld Petitioner’s discharge on August 9, 1999. R. Exh.
1.
Based upon the foregoing Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Office of Administrative Hearings has personal and subject matter jurisdiction over
this contested case pursuant to Chapter 126 and 150B of the North Carolina General Statutes
.
2. At the time of his dismissal, Petitioner was a permanent state employee subject to the
State Personnel Act and thus could be dismissed only for just cause.
3. Petitioner has the burden of showing by the greater weight of the evidence that
Respondent did not have just cause to dismiss him.
4. The term unacceptable personal conduct is defined as conduct for which no reasonable
person should accept to receive prior warnings or conduct unbecoming a State employee that is
detrimental to State service. 25 NCAC 1J. 0604(b) and (c) (effective 1 March 1994). 25 NCAC 1J
.0604(i). Employees may be dismissed, demoted, suspended or warned on the basis of unacceptable
personal conduct. Discipline may be imposed as a result of unacceptable personal conduct, up to
and including dismissal without any prior warning to the employee. 25 NCAC 1J. 0608 (effective 1
March 1994).
5. By refusing to immediately follow Mr. Jones’ directive to put away the Playboy
magazine, and sliding down in his chair while pulling his hat over his eyes, Petitioner exhibited
unacceptable personal conduct. When he failed to immediately follow Mr. Jones’ order, Petitioner
intentionally refused to follow the orders of a superior or supervisor, or to follow established policy
or practice. Accordingly, he was insubordinate. His sliding down in his chair while pulling his hat
over his eyes, constant interruptions, and refusal to pay attention to his supervisor amounted to
disrespectful conduct. If Petitioner disagreed with the written warning, he had other avenues to
voice his displeasure. Viewing the totality of the circumstances, Petitioner refused to timely comply
with his supervisor’s order and behaved insubordinately in the meeting over his written warning.
His behavior constituted unacceptable personal conduct as defined by the DOC and OSP policy.
6. The Petitioner’s disrespectful conduct in the meeting and his refusal to immediately
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comply with his supervisor’s order to put away the Playboy magazine constituted unacceptable
personal conduct and just cause for dismissal. Based on the foregoing Findings of Fact and
Conclusions of Law, I find that the Petitioner has failed to meet his burden of proof by showing that
the Respondent lacked just cause for his dismissal.
RECOMMENDED DECISION
That the State Personnel Commission AFFIRM the Respondent’s Employment Decision in
this Contested Case in that Petitioner’s dismissal fully complies with law and agency procedure.
ORDER
It is hereby ordered that the Agency serve a copy of the 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
Before the agency makes the FINAL DECISION, it is required by N.C. GEN. STAT. §
150B-36(a) 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 decision.
The agency that will make the final decision in this contested case is the North Carolina
State Personnel Commission.
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’ attorney of record and to the Office of
Administrative Hearings.
This is the 27 day of June, 2001.
___________________________________
Sammie Chess, Jr.
Administrative Law Judge
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