Respondent s Exhibit 30 Memo from Reginald Weisner by HC120831192651

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									STATE OF NORTH CAROLINA                                           IN THE OFFICE OF
                                                              ADMINISTRATIVE HEARINGS
COUNTY OF ALEXANDER                                                  05 OSP 1449

Tonita Derr Dawkins                                )
       Petitioner                                  )
                                                   )
       vs.                                         )                  DECISION
                                                   )
N. C. Department of Correction                     )
Alexander Correctional Institution                 )
       Respondent                                  )

       This matter was heard before Beecher R. Gray, Administrative Law Judge, on May 10,
2006, in the 1924 Courthouse, Courthouse Square, Newton, North Carolina.

                                         APPEARANCES

For Petitioner:                 Michael C. Byrne, Esq.
                                5 West Hargett Street
                                Suite 310
                                Raleigh, North Carolina 27601

For Respondent:                 Joseph Finarelli
                                Assistant Attorney General
                                N.C. Department of Justice
                                P.O. Box 629
                                Raleigh, North Carolina 27602

                                            EXHIBITS

       Petitioner’s Exhibits:

Petitioner’s Exhibit 2          Letter to Petitioner from Weisner, re: temporary duty assignment

Petitioner’s Exhibit 3          Reid’s Investigative Report

Petitioner’s Exhibit 7          Statement of Steven Byers

Petitioner’s Exhibit 9          Master Control Officer Post Orders

Petitioner’s Exhibit 12         Conduct of Employees Standard Operating Procedures

Petitioner’s Exhibit 17         8/5/05 Statements of Petitioner

Petitioner’s Exhibit 19         8/8/05 Statement of Steven Byers
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Petitioner’s Exhibit 26     Respondent’s Responses to Petitioner’s Discovery Requests

Petitioner’s Exhibit 27     Statements of Weisner

Petitioner’s Exhibit 28     Performance Logs for Thrift, Fullbright, and Kirby

Petitioner’s Exhibit 30     Job Description and Application for Employment

Petitioner’s Exhibit 31     (Not Identified)

       Respondent’s Exhibits:

Respondent’s Exhibit 1      Alexander Correctional Institution (AxCI) Master Control Sergeant
                            Post Orders (9/8/04)

Respondent’s Exhibit 2      Diagram of AxCI Master Control, visitation, and Lobby Areas

Respondent’s Exhibit 3      Photograph - View of AxCI Lobby/Master Control from Main
                            Entrance

Respondent’s Exhibit 4      Photograph - View of AxCI Lobby/Bathrooms from A101B Slider

Respondent’s Exhibit 5      Photograph - View of AxCI A101B Slider going into Master
                            Control Sally Port

Respondent’s Exhibit 6      Photograph - View of AxCI Staff Toilet inside Master Control
                            Sally Port

Respondent’s Exhibit 7      Photograph - View of AxCI A100 Entrance to Master Control in
                            Sally Port

Respondent’s Exhibit 8      Photograph - View of AxCI from inside Master Control door A100
                            out to Sally Port

Respondent’s Exhibit 9      Photograph - View of AxCI Bar Gate inside Master Control (top of
                            staircase)
Respondent’s Exhibit 10     Photograph - View of AxCI Bar Gate/EIS Station in Master
                            Control

Respondent’s Exhibit 11     Photograph - View of AxCI Main Hallway from Touch Screen
                            Station #2

Respondent’s Exhibit 12     Petitioner’s Internal Investigation Statement (6/2/05)

Respondent’s Exhibit 13     Petitioner’s Internal Investigation Statement (6/16/05)
                                           -3-


Respondent’s Exhibit 14   C/O Michelle Carraway Internal Investigation Statement (6/1/05)

Respondent’s Exhibit 15   C/O John Sloan Internal Investigation Statement (6/1/05)

Respondent’s Exhibit 16   C/O Steven Sigmon Internal Investigation Statement (6/2/05)

Respondent’s Exhibit 17   Memo from Capt. Michael Moody to Keith Whitener (6/24/05)

Respondent’s Exhibit 18   Capt. Michael Moody Internal Investigation Statement (8/8/05)

Respondent’s Exhibit 19   Sgt. Michael Kirby Internal Investigation Statement (8/8/05)

Respondent’s Exhibit 20   Sgt. Susan McKinney Internal Investigation Statement (8/10/05)

Respondent’s Exhibit 21   Sgt. Robert Fullbright Internal Investigation Statement (8/9/05)

Respondent’s Exhibit 22   C/O Michelle Carraway Internal Investigation Statement (8/11/05)

Respondent’s Exhibit 23   C/O Steven Sigmon Internal Investigation Statement (8/11/05)

Respondent’s Exhibit 24   Capt. Charles Thrift Internal Investigation Statement (8/10/05)

Respondent’s Exhibit 25   AxCI Post Orders, Section .0405, Management of Security Post

Respondent’s Exhibit 26   DOC Personnel Manual, Section No. 6, pp. 1-18, Disciplinary
                          Policy and Procedures

Respondent’s Exhibit 27   Memo from Reginald Weisner to Petitioner, re: Notification of
                          Pre-Disciplinary Conference (8/3/05)

Respondent’s Exhibit 28   Pre-Disciplinary Conference Acknowledgment Form (8/5/05)

Respondent’s Exhibit 29   Memo from Reginald Weisner to Petitioner; re: Recommendation
                          to Demote (8/5/05)

Respondent’s Exhibit 30   Memo from Reginald Weisner to Petitioner, re: Demotion (9/8/05)

Respondent’s Exhibit 31   Letter from Petitioner to Lola Denning, re: Appeal of Demotion
                          (9/16/05)

Respondent’s Exhibit 32   Letter from Lola Denning to Petitioner (12/8/05)

Respondent’s Exhibit 33   Certified Mail Return Receipt Card signed by Petitioner (12/12/05)

Respondent’s Exhibit 34   USPS Track and Confirm Document (1/30/06)
                                                -4-


Respondent’s Exhibit 35      Petitioner’s Performance Appraisal Document

      At the outset of the hearing, the parties handed up five (5) written stipulations of fact.

                                             ISSUE

      Whether Respondent had just cause to demote Petitioner for unacceptable personal
conduct or grossly inefficient job performance.

                                    FINDINGS OF FACT

                                        Stipulated Facts

1.    The recommendation of Reginald Weisner, the Correctional Administrator at Alexander
      Correctional Institution, that Petitioner be demoted was sent to, agreed to, and forwarded
      by Steve Bailey, the Western Regional Director of Respondent’s Division of Prisons, to
      Ron Gillespie, Respondent’s Director of Human Resources.

2.    The recommendation of Reginald Weisner, the Correctional Administrator at Alexander
      Correctional Institution, that Petitioner be demoted was approved by Ron Gillespie,
      Respondent’s Director of Human Resources.

3.    The demotion of Petitioner was appealed by Petitioner to Respondent’s Employee
      Relations Committee and was upheld following a hearing on 15 November 2005.

4.    The action by Respondent’s Employee Relations Committee constituted the final agency
      decision with respect to the Petitioner’s demotion.

5.    Petitioner was notified in writing of the final agency decision that she was demoted in a
      letter sent certified mail return receipt requested and was received by Petitioner on 12
      December 2005.

                                       Adjudicated Facts

6.    At the time of her filing of the Petition for Contested Case Hearing (“the Petition”),
      Petitioner, a black female, was employed by Respondent as a Correctional Officer. See
      Petition.

7.    Petitioner first was hired in 2000 by Correctional Administrator Reginald Weisner
      (“Weisner”) to serve as a Correctional Officer at Western Youth Institution, a youth
      facility operated by Respondent. Testimony of Tonita Dawkins, T. p. 19; Testimony of
      Reginald Weisner, T. p. 330.

8.    In 2004, Petitioner was promoted by Weisner to the position of Correctional Sergeant and
      was hired for a position at Alexander Correctional Institution (“Alexander”). Testimony
      of Tonita Dawkins, T. pp. 19-20; Testimony of Reginald Weisner, T. p. 330.
                                               -5-




9.    Alexander is a thousand bed, close custody facility that houses inmates, half of whom
      have sentences of twenty years or more, and many of whom are extremely violent, thus
      increasing the potential for danger within and escape from the institution. Sergeants
      assigned to Master Control at Alexander are trained to be more familiar with emergency
      procedures and thus are more prepared to respond to emergencies. In routine situations,
      it is necessary that sergeants remain in Master Control in order to supervise subordinate
      staff in the “hub of the operation” at the institution. Testimony of Reginald Weisner, T.
      pp. 319-21.

10.   In Master Control at Alexander, the assigned staff had control over all entry and exit
      points at the institution, the perimeter fence security system, the fire alarm system, the
      weapons armory, all controlled-access doors within the institution, and all closed-circuit
      security cameras located throughout the institution. During emergency situations at
      Alexander, the Master Control Sergeant has the authority to override, disable, and lock-
      down outlying control stations, doors, and hallways to facilitate an emergency response
      or to limit the spread of a disturbance. Testimony of Tonita Dawkins, T. pp. 22-26;
      Testimony of Michael Moody, T. pp. 191, 193-95; Respondent’s Ex. 1.

11.   In emergency situations, the Master Control Sergeant at Alexander temporarily becomes
      the emergency commander of the institution and has control over all of the internal
      electronic gates and doors, can communicate via radio and telephone with every location
      in the institution, can observe every area of the institution via closed-circuit video
      camera, has access to the fire alarm system, and monitors the perimeter fence security
      system. Testimony of Tonita Dawkins, T. pp. 77-78, 80-81; Testimony of Michael
      Moody, T. pp. 191, 193-94; Respondent’s Ex. 25.

12.   During her tenure at Alexander, Petitioner served in the position of Master Control
      Sergeant, the primary responsibility of which was to maintain supervision and authority
      over Master Control at Alexander for the duration of a twelve (12) hour shift. Further
      responsibilities of the Master Control Sergeant position were established and governed by
      Post Orders (“the Post Orders”) established and issued at Alexander as well as the general
      rules and regulations contained in the Disciplinary Policy and Procedures section of
      Respondent’s Personnel Manual. Testimony of Tonita Dawkins, T. pp. 20-21;
      Respondent’s Ex. 1, 25, 26.

13.   The Post Orders in effect on the day of the events that led to Petitioner’s demotion stated,
      without exception, that “Master Control will be staffed at all times by a staff member at
      or above the rank of Sergeant.” There are no exceptions in the written Post Orders to this
      command. Stipulations of Fact, ¶ 3; Testimony of Tonita Dawkins, T. pp. 22, 91;
      Respondent’s Ex. 1.

14.   Post Orders at Alexander demand that a staff member of the rank of sergeant or higher be
      present in Master Control at all times because correctional officers lack sufficient training
      to assume responsibility for the operation of the institution during emergency situations.
      Testimony of Michael Moody, T. pp. 191-92.
                                              -6-




15.   Master Control at Alexander can be seen without obstruction from the main entry doors
      to the institution and sits raised above floor level. Testimony of Tonita Dawkins, T. p. 27-
      28; Respondent’s Ex. 2, 3.

16.   Access to Master Control at Alexander is obtained by first passing through a sliding,
      electronic, controlled-access door, A101B, passage through which is controlled by staff
      in Master Control. Upon passing through the A101B door, the individual enters into a
      Sally Port. Straight ahead is another sliding, electronic, controlled-access door, A101A;
      to the immediate left is an electronic, airlocked door, A100, through which lies Master
      Control and access to which also is controlled by staff in Master Control; and to the right
      is a unisex staff bathroom approximately seven steps from the A100 door and which is
      accessed by a key kept in Master Control. Testimony of Tonita Dawkins, T. pp. 27-33;
      Respondent’s Exs. 2, 4, 5, 6, 7, 8.

17.   Once through the A100 door, an individual seeking to gain access into Master Control at
      Alexander then must climb several steps of a small staircase, the landing of which is
      blocked by a metal, barred gate, known as the “Bar Gate.” The Bar Gate itself only can
      be opened by the use of the Bar Gate Key, which is to be kept by the Master Control
      Sergeant at all times. Testimony of Tonita Dawkins, T. pp. 24, 34-35; Respondent’s Ex.
      9, 10.

18.   The Post Orders also state that “[t]he Master Control Sergeant is the only person
      authorized to carry and use the Sally Port key” and that “[t]he sergeant will maintain
      possession of this key until properly relieved and [it is] passed on to the oncoming
      sergeant.” Testimony of Tonita Dawkins, T. p. 24; Respondent’s Ex. 1.

19.   Petitioner was trained on the obligations of the Master Control Sergeant position by
      Sergeant Susan McKinney. Sergeant McKinney told Petitioner to read both the written
      Post Orders and the emergency manual and Petitioner did so before officially assuming
      the title of Master Control Sergeant. Sergeant McKinney also advised Petitioner to be
      prepared for long nights in Master Control when relief would not be available.
      Testimony of Tonita Dawkins, T. pp. 56-58, 89.

20.   As Petitioner’s initial supervisor, Lieutenant Charles Thrift asked Petitioner if her
      smoking habit would pose a problem in light of her assignment to Master Control.
      Petitioner said it would not. Lieutenant Thrift also explained to Petitioner that “on a good
      day,” relief would be provided every two hours but that, if Lieutenant Thrift himself
      couldn’t personally relieve Petitioner, Petitioner was to call sergeants from other units to
      obtain relief. If those sergeants were also not available, relief would be provided to
      Petitioner as quickly as possible. Testimony of Charles Thrift, T. pp. 258-59.

21.   The general security policy at Alexander dictates that security doors, including the A100
      and A101B doors near Master Control and the Bar Gate door in Master Control, are to
      remain closed and locked at all times and that a second security door cannot be opened
                                              -7-


      until after the first, opened security door has been closed and locked. Testimony of
      Tonita Dawkins, T. pp. 35-37.

22.   From Master Control at Alexander, a 440 foot long hallway leads to the housing units at
      the institution and, other than security cameras accessed in a central control room or
      individuals located in the lobby, provides the only visual access into Master Control. The
      length of the hallway also permits those staff in Master Control to observe anyone
      approaching down the hallway from a considerable distance. Testimony of Tonita
      Dawkins, T. pp. 38-40; Testimony of Michael Moody, T. p. 211; Respondent’s Ex. 11.

23.   In order to obtain relief to relinquish her post as Master Control Sergeant at Alexander,
      Petitioner’s first step would be to contact the officer-in-charge to get someone sent to
      relieve her. Unless she officially were relieved, it was a violation of the Post Orders for
      Petitioner unilaterally to abandon her post in Master Control. Stipulations of Fact, ¶ 2;
      Testimony of Tonita Dawkins, T. pp. 40-41; Testimony of Michael Moody, T. p. 198;
      Respondent’s Ex. 1.

24.   There is no written policy in place at Alexander that explains how Petitioner as the
      Master Control Sergeant was supposed to obtain relief and no requirement in the written
      policies in place at Alexander that required those from whom she sought relief to provide
      it. Testimony of Reginald Weisner, T. pp. 343-45, 353; Testimony of Michael Moody, T.
      p. 233; Testimony of Charles Thrift, T. pp. 264-65.

25.   Petitioner admitted that during the period of time during which she served as Master
      Control Sergeant at Alexander, she left Master Control without properly being relieved in
      order to smoke a cigarette and use the restroom “no more than six” times. Petitioner
      further testified that, on each such occasion, she left correctional officers in charge of
      Master Control and was aware that her conduct violated the written Post Orders in effect
      at Alexander. Testimony of Tonita Dawkins, T. pp. 41-42, 45; Respondent’s Ex. 12, 13.

26.   On those occasions when Petitioner left Master Control without first properly being
      relieved, Petitioner asked the remaining staff members to leave the A101B security door
      open to permit her to return to Master Control quickly if necessary. On those occasions,
      Petitioner also relinquished possession of the Bar Gate Key and gave it to correctional
      officers. Petitioner was aware that this conduct violated the written Post Orders in effect
      at Alexander. Testimony of Tonita Dawkins, T. pp. 44-45, 55; Respondent’s Ex. 13.

27.   Petitioner admitted that, on one occasion, she left Master Control without relief to smoke
      a cigarette and was accompanied by former Correctional Officer Steven Byers. This
      incident directly contradicted the written statements provided by Byers in the course of
      the investigation into Petitioner’s conduct, statements in which Byers indicated he was
      unaware of any sergeant leaving Master Control without first having obtained proper
      relief. Testimony of Tonita Dawkins, T. pp. 375-76, 385-87; Respondent’s Ex. 7, 19.

28.   On those occasions when Petitioner left Master Control without properly being relieved
      to exit Alexander to smoke a cigarette, she would have been unable to monitor
                                               -8-


      “institutional operations to ensure a central point of communication that coordinates a
      systematic institutional operation during routine and emergency operations” as required
      by applicable Post Orders. Testimony of Tonita Dawkins, T. pp. 81-82; Respondent’s Ex.
      25.

29.   Correctional Officer Michelle Carraway frequently was assigned to Master Control in
      early 2005 and often worked under Petitioner’s supervision. Officer Carraway frequently
      would be assigned to Master Control for a two or three hour stint during her normal
      twelve hour shift. Testimony of Michelle Carraway, T. pp. 104-05.

30.   Officer Carraway observed Petitioner seek relief prior to Petitioner abandoning her post
      as the Master Control Sergeant but also witnessed Petitioner leave Master Control
      without first obtaining relief on five or six occasions. On those occasions, Petitioner
      would direct her and the other correctional officers in Master Control to leave the A101B
      slider door open and, periodically, to leave the Bar Gate closed but unlocked – allowing it
      simply to be pushed open – to provide speedier return into Master Control. Petitioner
      also relinquished possession of the Bar Gate Key to a correctional officer. From time to
      time, Petitioner would relinquish possession of the Bar Gate Key to a correctional officer
      for the duration of an entire shift. Testimony of Michelle Carraway, T. pp. 105-08;
      Respondent’s Ex. 14, 22.

31.   On those occasions when Petitioner took unrelieved breaks from Master Control, she
      directed Officer Carraway and other officers to signal to her at the front of the building if
      someone was approaching Master Control or was attempting to get in touch with
      Petitioner via telephone. Petitioner also would instruct staff to use designated call signs
      and other signals over the radio to advise Petitioner that someone was trying to reach her.
      Testimony of Michelle Carraway, T. pp. 106, 108-10; Respondent’s Ex. 14, 22.

32.   Officer Carraway testified that, on one day when she and other correctional officers were
      left in Master Control while Petitioner took an unrelieved break, she had to wave and
      gesture to get Petitioner’s attention to let Petitioner know that a Captain was approaching
      Master Control from down the main hallway at Alexander. Testimony of Michelle
      Carraway, T. p. 110.

33.   Officer Carraway testified that Petitioner’s unrelieved absences from Master Control
      lasted between five and ten minutes. Testimony of Michelle Carraway, T. p. 107.

34.   Officer Carraway was aware that Sergeant Susan McKinney also left Master Control
      without relief, but did so only to use the staff bathroom in the Master Control Sally Port.
      Sgt. McKinney did not direct her or other staff to conceal Sgt. McKinney’s absence from
      Master Control and did not direct her or other staff to leave any security doors unsecured.
      Testimony of Michelle Carraway, T. p. 114.

35.   Officer Carraway also testified that former Correctional Officer Steven Byers lied in his
      investigation statement that he had no knowledge of Petitioner taking unrelieved breaks
      from Master Control and that Byers admitted that he had “covered for” Petitioner and
                                              -9-


      suggested that other correctional officers do so as well. Testimony of Michelle Carraway,
      T. pp. 117, 121; Petitioner’s Ex. 7.

36.   On May 29, 2005, Petitioner twice left Master Control at Alexander without properly
      being relieved, first to use the restroom and later to smoke a cigarette and use the
      restroom a second time. On the first occasion, she sought relief from Lieutenant Thrift
      and later from other sergeants on duty at the time. When relief was not made available
      quickly enough to satisfy her, Petitioner left Master Control without properly being
      relieved and used the restroom in the Master Control Sally Port area before returning to
      Master Control. Testimony of Tonita Dawkins, T. pp. 46-49.

37.   Since February 2005, Correctional Officer John Sloan permanently was assigned to
      Master Control at Alexander and, in May 2005, was working an eight-hour shift,
      approximately four hours of which on nearly every day he worked was under the
      supervision of Petitioner. Testimony of John Sloan, T. pp. 133-34.

38.   Officer Sloan observed Petitioner take unrelieved breaks from Master Control at
      Alexander on at least one and as many as five occasions, during which breaks Petitioner
      typically would smoke a cigarette and use the restroom in the lobby. Officer Sloan never
      observed Petitioner take an unrelieved break from Master Control solely in order to use
      the restroom in the Master Control Sally Port. Testimony of John Sloan, T. pp. 135-36;
      Respondent’s Ex. 15.

39.   When Petitioner would take unrelieved breaks from Master Control, she would instruct
      Officer Sloan and other staff to leave the A101B slider door open, leave the Bar Gate
      Key in the lock of the Bar Gate door or within easy access, and radio Petitioner by calling
      for an employee not on duty as a signal to Petitioner that a superior officer either was
      approaching Master Control or was calling Master Control on the telephone looking for
      Petitioner. Also, Petitioner directed Officer Sloan and other staff to tap on the glass
      windows in Master Control in an effort to get her attention while she was outside the
      institution. Testimony of John Sloan, T. pp. 136-37; Respondent’s Ex. 15.

40.   On May 29, 2005, Officer Sloan observed Petitioner leave her post in Master Control
      without properly being relieved. Officer Sloan recorded his observations in a written
      statement prepared at the request of Captain Michael Moody in the course of an
      investigation into Petitioner’s conduct. Testimony of John Sloan, T. pp. 135, 153;
      Respondent’s Ex. 15.

41.   Prior to preparing his written statement, Officer Sloan had observed Sergeants Laws,
      Fullbright, and Kirby leave Master Control without relief in order to use the staff
      bathroom in the Master Control Sally Port. Officer Sloan did not, however, report the
      unrelieved breaks of sergeants other than Petitioner because of what he perceived to be
      greater security breaches created by Petitioner’s conduct, namely leaving the A101B
      slider door open and being outside the institution in order to smoke a cigarette.
      Testimony of John Sloan, T. pp. 144-45.
                                             -10-


42.   Correctional Officer Steven Sigmon also was assigned to the Operations Section at
      Alexander, an assignment that included a rotation as a Master Control Officer. As such,
      Officer Sigmon occasionally was supervised by Petitioner or was in the vicinity of
      Master Control while Petitioner was assigned there as Master Control Sergeant.
      Testimony of Steven Sigmon, T. pp. 166-67.

43.   Officer Sigmon recalled three (3) occasions when Petitioner left Master Control without
      properly being relieved in order to smoke a cigarette. On one such occasion, when
      Officer Sigmon was awaiting the arrival of an inmate trash detail he was to supervise,
      Petitioner accompanied him outside the institution to smoke a cigarette, without
      Petitioner first properly having been relieved from her position as Master Control
      Sergeant. Petitioner instructed the staff assigned to Master Control to leave the A101B
      slider door open and to notify her if a superior officer came down the main hallway
      towards Master Control. On that same occasion, Petitioner and Officer Sigmon smoked
      outside Alexander for approximately five (5) minutes, though Petitioner remained outside
      when Officer Sigmon reentered the building. Testimony of Steven Sigmon, T. pp. 167-69;
      Respondent’s Ex. 16.

44.   On a second occasion, Officer Sigmon was assigned to Master Control when Petitioner
      announced that she was leaving her post as the Master Control Sergeant to take a
      cigarette break and did so without relief. Petitioner directed Officer Sigmon to leave the
      A101B slider door open and to call her on the radio or motion to her if a superior officer
      approached Master Control. Testimony of Steven Sigmon, T. p. 170; Respondent’s Ex.
      16.

45.   On the third occasion, Officer Sigmon, while assigned to another post, went to Master
      Control to retrieve his lunch box. When he emerged from the Armory Sally Port, he
      observed that the A101B slider door into the Master Control Sally Port was open and that
      Petitioner was outside the front of the institution smoking a cigarette. When he entered
      Master Control, there was no sergeant on duty there and the Bar Gate was unlocked and
      capable of being pushed open. Testimony of Steven Sigmon, T. pp. 171-74; Respondent’s
      Ex. 16.

46.   Officer Sigmon never observed any other sergeants assigned to Master Control leave
      Master Control without properly being relieved. Testimony of Steven Sigmon, T. pp. 175-
      76; Respondent’s Ex. 23.

47.   On those occasions that Petitioner left her post as the Master Control Sergeant without
      properly being relieved in order to only use the restroom, she would use the staff
      bathroom in the Master Control Sally Port. When Petitioner wanted to smoke a cigarette
      as well on these unrelieved breaks she would bypass the staff bathroom in the Master
      Control Sally Port, exit the building to smoke a cigarette, and then use the bathroom in
      the front lobby before returning to Master Control. These unrelieved absences lasted “no
      longer than five (5) minutes.” Testimony of Tonita Dawkins, T. pp. 83-84.
                                              -11-


48.   No superior officer ever instructed or gave permission to Petitioner to abandon her post in
      Master Control without properly being relieved in accordance with the written Post
      Orders. Despite this absence of permission or instruction, Petitioner relied on what she
      had heard from other sergeants and understood to be an “unofficial practice” at
      Alexander among other Master Control Sergeants that it was acceptable to leave the
      Master Control Sergeant post when necessary if proper relief could not be obtained.
      Testimony of Tonita Dawkins, T. pp. 47, 50-52; Testimony of Charles Thrift, T. pp. 253-
      54.

49.   On those occasions when Petitioner would leave her post in Master Control to smoke a
      cigarette, she relinquished the Bar Gate Key to the correctional officers assigned to
      Master Control, directed those officers to leave the A101B slider door open, and walked
      out of the Master Control Sally Port through the lobby and outside the main entrance to
      the institution. During these unrelieved absences, Petitioner was away from her post for
      “no more than five” minutes. Testimony of Tonita Dawkins, T. pp. 53-54.

50.   Following the report made by Officer Sloan, Captain Michael Moody was instructed by
      Alexander’s Assistant Superintendent, Keith Whitener, to conduct an internal
      investigation into the allegations of misconduct by Petitioner. Testimony of Michael
      Moody, T. pp. 189-91, 199-200.

51.   Up until the time that he was assigned to investigate the allegations against Petitioner,
      Captain Moody was unaware that other sergeants had left their posts in Master Control
      without properly being relieved. Testimony of Michael Moody, T. p. 198.

52.   In the course of his investigation, Captain Moody interviewed and requested written
      statements from Officers Sloan, Carraway, Sigmon, and Byers, as well as Petitioner.
      During his interview of Petitioner, which was attended by Lieutenant Thrift, Petitioner
      acknowledged that she was wrong to have left Master Control without first being
      properly relieved in order to use the bathroom and to smoke cigarettes. Testimony of
      Michael Moody, T. pp. 200-03, 209; Testimony of Charles Thrift, T. pp. 257-58;
      Respondent’s Ex. 12, 17, 18, 24.

53.   Captain Moody then prepared a report to Mr. Whitener outlining the information his
      investigation had uncovered and recommending that Petitioner be demoted for
      Unacceptable Personal Conduct and Grossly Inefficient Job Performance for abandoning
      her post to use the bathroom and smoke cigarettes in violation of Post Orders, for
      directing subordinate staff to lie to conceal her absence from her post, and for assigning
      the Bar Gate Key to a correctional officer for most or all of a scheduled shift in violation
      of Post Orders. Testimony of Michael Moody, T. pp. 200-01, 205; Respondent’s Ex. 17.

54.   During Captain Moody’s interviews of Petitioner, Petitioner revealed that she was aware
      of other sergeants who had left Master Control without first properly being relieved but
      refused to identify those sergeants. After being reminded of her obligation not to obstruct
      an internal investigation, Petitioner identified Sergeant Susan McKinney and Sergeant
      Michael Kirby as having left Master Control without properly being relieved. Petitioner
                                              -12-


      explained, however, that her knowledge of the practices of Sergeant McKinney and
      Sergeant Kirby was secondhand. Testimony of Michael Moody, T. pp. 203-05; Testimony
      of Charles Thrift, T. pp. 257-58; Respondent’s Ex. 18, 24.

55.   Following this disclosure by Petitioner, Captain Moody asked both Sergeant McKinney
      and Sergeant Kirby whether or not they had left Master Control without first properly
      being relieved. Sergeant McKinney advised that she had been given permission to do so
      by Lieutenant Thrift. Sergeant Kirby advised that he had left Master Control on several
      occasions to use the staff bathroom in the Master Control Sally Port without first properly
      being relieved. Testimony of Michael Moody, T. pp. 209-10; Respondent’s Ex. 18.

56.   In a subsequent investigation conducted into Petitioner’s allegations that Sergeants
      McKinney and Kirby had left Master Control without first properly being relieved,
      Captain Moody provided a written statement detailing the substance of his interviews
      with Petitioner and the responses of Sergeant McKinney and Sergeant Kirby to the
      allegations made against them by Petitioner. Testimony of Michael Moody, T. p. 208;
      Respondent’s Ex. 18.

57.   The parties stipulated that, if called to testify, Sergeant Robert Fullbright would testify
      that: (1) he left Master Control at Alexander without relief; (2) that his unrelieved
      absences were for the purpose of using the staff bathroom in the Master Control Sally
      Port; (3) that no doors were left unsecured during those unrelieved absences; (4) that he is
      white; and that (5) he did not receive a written warning, demotion or dismissal for his
      conduct, but instead received an “Unsatisfactory” rating on his performance evaluation.
      The parties further stipulated to the admission into evidence and the authenticity of
      Sergeant Fullbright’s written statement prepared in the course of an internal investigation
      into allegations made by Petitioner that other sergeants had left Master Control without
      first obtaining proper relief. T. p. 314-16; Testimony of Reginald Weisner, T. pp. 324-25;
      Respondent’s Ex. 21.

58.   The parties stipulated that, if called to testify, Sergeant Michael Kirby would testify that:
      (1) he left Master Control at Alexander without relief; (2) that his unrelieved absences
      were for the purpose of using the staff bathroom in the Master Control Sally Port; (3) that
      no doors were left unsecured during those unrelieved absences; (4) that he is white; and
      that (5) he did not receive a written warning, demotion or dismissal for his conduct, but
      instead received an “Unsatisfactory” rating on his performance evaluation. The parties
      further stipulated to the admission into evidence and the authenticity of Sergeant Kirby’s
      written statement prepared in the course of an internal investigation into allegations made
      by Petitioner that other sergeants had left Master Control without first obtaining proper
      relief. The parties also stipulated, however, that the time estimate of “30 to 40 seconds”
      provided by Sergeant Kirby for the duration of his unrelieved absences to use the staff
      bathroom in the Master Control Sally Port was not accurate and that his absences were
      approximately two to three minutes in length. T. p. 314-16; Testimony of Reginald
      Weisner, T. pp. 324-25; Respondent’s Ex. 21.
                                              -13-


59.   The parties stipulated that, if called to testify, Sergeant McKinney would testify that: (1)
      she left Master Control at Alexander without relief; (2) that her unrelieved absences were
      for the purpose of using the staff bathroom in the Master Control Sally Port; (3) that one
      of those absences was permitted by Lieutenant Thrift; (4) that no doors were left
      unsecured during those unrelieved absences; (5) that she is white; and that (6) she did not
      receive a written warning, demotion or dismissal for her conduct. The parties further
      stipulated to the admission into evidence and the authenticity of Sergeant McKinney’s
      written statement prepared in the course of an internal investigation into allegations made
      by Petitioner that other sergeants had left Master Control without first obtaining proper
      relief. The parties also stipulated that, if called to testify, Sergeant McKinney would
      dispute the earlier testimony of Officer Carraway that Sergeant McKinney directed
      subordinate staff to knock on the staff bathroom door while she occupied it to alert
      Sergeant McKinney that her presence in Master Control was required. T. p. 314-16;
      Testimony of Reginald Weisner, T. pp. 324-25; Respondent’s Ex. 20.

60.   Lieutenant Thrift was not aware, prior to the investigation into Petitioner’s conduct, that
      other sergeants were leaving Master Control without first being properly relieved. On
      one occasion, Lieutenant Thrift had permitted Sergeant McKinney to use the staff
      bathroom in the Master Control Sally Port when Sergeant McKinney had repeatedly
      radioed about her need to use the restroom and no relief was available. As a result of that
      authorization, Lieutenant Thrift received an “Unsatisfactory” rating on his performance
      evaluation, a rating that is a precursor to a written warning. Testimony of Charles Thrift,
      T. pp. 254-56, 288-89; Testimony of Reginald Weisner, T. pp. 324-25; Petitioner’s Ex.
      28.

61.   Petitioner testified that she suffered from diabetes, a condition that made the need to
      urinate a particularly urgent concern. Although Petitioner further testified that she
      advised Lieutenant Thrift of her condition and the difficulties it would pose if she were
      assigned to Master Control, Lieutenant Thrift denied having been so advised.
      Furthermore, Petitioner took no steps to advise any other superior officer or official at
      Alexander of her diabetic condition and requested no accommodation or post
      reassignment because of her diabetes. Testimony of Tonita Dawkins, T. pp. 395-96;
      Testimony of Michael Moody, T. p. 228; Testimony of Charles Thrift, T. p. 269;
      Testimony of Reginald Weisner, T. p. 354.

62.   Petitioner never questioned Lieutenant Thrift about the Post Orders for the Master
      Control Sergeant at Alexander. Testimony of Charles Thrift, T. pp. 253-54.

63.   In addition to the conduct surrounding her departures from Master Control without first
      properly having been relieved, Petitioner had received a “Below Good” rating on her
      then most recent performance evaluation for failing to properly supervise subordinate
      staff in Master Control and allowing those staff members to manipulate various
      equipment in Master Control without authorization or reason to do so. Testimony of
      Charles Thrift, T. pp. 298-301.
                                             -14-


64.   Prior to making his own recommendation that Petitioner be demoted for her conduct, Mr.
      Weisner reviewed the investigation report of Captain Moody and the recommendation of
      Mr. Whitener, read the Post Orders, read the Management of Security Posts Standard
      Operating Procedures in effect at Alexander, and the Disciplinary Policies and
      Procedures contained in Respondent’s Personnel Manual. Testimony of Reginald
      Weisner, T. pp. 321-22; Respondent’s Ex. 1, 17, 25, 26.

65.   Mr. Weisner recommended that Petitioner be demoted because: (1) she left her post as
      the Master Control Sergeant without properly being relieved in order to use the restroom
      or smoke a cigarette and (2) instructed subordinate staff to misrepresent the facts and
      conceal her absence if another supervisor approached or called master control. In the
      opinion of Mr. Weisner, this conduct undermined the security and effective operation of
      Alexander. Testimony of Reginald Weisner, T. pp. 322-23; Respondent’s Ex. 29.

66.   The fact that Petitioner is black had no influence on Mr. Weisner’s decision to
      recommend to his superiors that Petitioner be demoted. Testimony of Reginald Weisner,
      T. p. 330.

67.   On August 3, 2005, Petitioner received a memorandum from Mr. Weisner notifying her
      of a Pre-Disciplinary Conference scheduled for August 5, 2005, advising Petitioner that a
      demotion was being recommended to Mr. Weisner’s superiors, and explaining to
      Petitioner the reasons for that recommendation. Testimony of Tonita Dawkins, T. p. 69;
      Respondent’s Ex. 27.

68.   The Pre-Disciplinary Conference was held on August 5, 2005. Testimony of Tonita
      Dawkins, T. p. 70; Respondent’s Ex. 28.

69.   At the conclusion of the Pre-Disciplinary Conference on August 5, 2005, Petitioner was
      provided a written memorandum from Weisner explaining the reasons for Weisner’s
      recommendation that Petitioner be demoted from her Correctional Sergeant position and
      advising that the recommendation would be forwarded to Mr. Weisner’s superiors.
      Testimony of Tonita Dawkins, T. p. 24; Respondent’s Ex. 29.

70.   Mr. Weisner’s recommendation that Petitioner be demoted ultimately was approved by
      Ron Gillespie, Respondent’s Director of Human Resources. Stipulations of Fact, ¶ 6.

71.   On September 8, 2005, Petitioner received a written memorandum from Weisner
      advising that Weisner’s recommendation that Petitioner be demoted was approved by
      Respondent and that Petitioner had the right to appeal that personnel action. Testimony of
      Tonita Dawkins, T. p. 71; Respondent’s Ex. 30.

72.   Following Petitioner’s written appeal of her demotion, a hearing was conducted by
      Respondent’s Employee Relations Committee on November 15, 2005, following which
      the Secretary of Respondent upheld Petitioner’s demotion. Testimony of Tonita Dawkins,
      T. pp. 72-75; Respondent’s Ex. 31, 32.
                                                -15-


73.   Petitioner received the written notification of the Secretary of Respondent’s final agency
      decision to uphold her demotion on December 12, 2005. Stipulations of Fact, ¶¶ 8-9;
      Testimony of Tonita Dawkins, T. pp. 75-76; Respondent’s Ex. 32, 33, 34.

74.   N.C.G.S. § 126-35 states that “[n]o career State employee subject to the State Personnel
      Act shall be discharged, suspended or demoted for disciplinary reasons, except for just
      cause.

75.   N.C.G.S. § 126-35 states, “in contested cases conducted pursuant to Chapter 150B of the
      General Statutes, the burden of showing that a career State employee subject to the State
      Personnel Act was discharged, suspended, or demoted for just cause rests with the
      department or agency employer.”

76.   The North Carolina Administrative Code, 25 NCAC 1J.0614(i), states that:

         Unacceptable Personal Conduct is:

              (1)      Conduct for which no reasonable person should expect to receive
                       prior warning; or

              (2)      job related conduct which constitutes a violation of state or federal
                       law; or

              (3)      conviction of a felony or an offense involving moral turpitude that
                       is detrimental to or impacts the employee’s service to the State; or

              (4)      the willful violation of known or written work rules; or

              (5)      conduct unbecoming a state employee that is detrimental to state
                       service; or

              (6)      the abuse of client(s), patient(s), student(s), or a person(s) over
                       whom the employee has charge or to whom the employee has a
                       responsibility or an animal owned by the State; or

              (7)      absence from work after all authorized leave credits and benefits
                       have been exhausted; or

              (8)      falsification of a state application or in other employment
                       documentation.

77.   Rules governing the conduct of Respondent’s employees and Petitioner, in particular, as a
      Master Control Sergeant at Alexander in 2005, are set forth in:

         b.         Alexander Correctional Institution Post Orders, Section .0503, Master
                    Control Sergeant, dated September 8, 2004; Respondent’s Ex. 1;
                                                -16-


         c.         Alexander Correctional Institution Post Orders, Section .0405,
                    Management of a Security Post, dated February 3, 2004; Respondent’s
                    Ex. 25; and
         d.         Respondent’s Personnel Manual, Section 6, pp. 1-18, Disciplinary
                    Policies and Procedures, revised July 1, 1997; Respondent’s Ex. 26

78.   The Master Control Sergeant Post Orders provide:

         e.         On Page 1, Part II, that: “Master Control will be staffed at all times by a
                    Staff member at or above the rank of Sergeant;”
         f.         On Page 2, Part VI.A.4, that: “The Master Control Sergeant is the only
                    person authorized to carry and use the Sally port key. The Sergeant will
                    maintain possession of this key until properly relieved and passed on to
                    the oncoming Sergeant;” and
         g.         On Page 3, Part VII.F, Touch Screen Operation, that: “The Master Control
                    Sergeant will maintain constant surveillance of Touch Screen Station Two
                    to ensure security is being maintained in all control stations and that no
                    conditions exist that would require the disabling of any control stations.”

      Respondent’s Ex. 1.

79.   The Management of a Security Post Orders, in part, provide:

         h.         On Page 9, Part V.B.1.c., that: “One (1) assigned Correctional Sergeant
                    will be responsible for monitoring Institution operations, while ensuring a
                    central point of communication that coordinates a systematic Institutional
                    operation during routine and emergency operations.”

      Respondent’s Ex. 25.

80.   Just as in The North Carolina Administrative Code, 25 NCAC 1J.0614(i), Respondent’s
      Personnel Manual, Section No. 6, page 4, provides that unacceptable personal conduct
      includes:

              (1)    conduct for which no reasonable person should expect to receive
                     prior warning; or
                                      ***
                     (4)      the willful violation of known or written work rules; or

                     (5)       conduct unbecoming a State employee that is detrimental to
                     State service

      Respondent’s Ex. 26.
                                              -17-


81.   Petitioner was familiar with and had read the Master Control Sergeant Post Orders and
      had been trained on the responsibilities of the Master Control Sergeant position.
      Testimony of Tonita Dawkins, T. pp. 56-58.

82.   The North Carolina Administrative Code, 25 NCAC 1J.0614(f), defines “Gross
      Inefficiency (Grossly Inefficient Job Performance)” as:

         [a] type of unsatisfactory job performance that occurs in instances in which
         the employee: fails to satisfactorily perform job requirements as specified in
         the job description, work plan, or as directed by management of the work unit
         or agency: and, that failure results in:

             (1)     the creation of the potential for death or serious bodily injury
                     to an employee(s) or to members of the public or to a
                     person(s) over whom the employee has responsibility; or

             (2)     the loss of or damage to state property or funds that result in a
                     serious impact on the State or work unit.

      Based on the foregoing Findings of Fact, the undersigned makes the following:

                                 CONCLUSIONS OF LAW

1.    Petitioner is a career State employee subject to the provisions of the State Personnel Act
      codified at N.C.G.S. § 126-1, et seq. See Petition.

2.    Petitioner’s conduct in leaving Master Control in order to smoke a cigarette or to use the
      restroom on “no more than six” occasions, including the date of May 29, 2005, without
      first properly being relieved by a staff member of the rank of Sergeant or higher violated
      the known, written Master Control Sergeant Post Orders and was conduct that Petitioner
      knew to be wrong at the time she engaged in it. Such violations constituted unacceptable
      personal conduct, sufficient to justify Respondent’s demotion of Petitioner under 25
      NCAC 1J.0614(i)(4). Stipulations of Fact, ¶¶ 1-4; Testimony of Tonita Dawkins, T. pp.
      40-42, 45; Respondent’s Ex. 1, 12, 13.

3.    Petitioner’s relinquishment of the Bar Gate key to subordinate staff violated the known,
      written Master Control Sergeant Post Orders and was conduct that Petitioner knew to be
      wrong at the time she engaged in it. Such violations constituted unacceptable personal
      conduct, sufficient to justify Respondent’s demotion of Petitioner under 25 NCAC
      1J.0614(i)(4). Testimony of Tonita Dawkins, T. pp. 24, 44-45; Respondent’s Ex. 1, 12,
      13.

4.    On those occasions when Petitioner abandoned her post without first obtaining proper
      relief, Petitioner’s instructions to subordinate staff to conceal her absences from superior
      staff by directing them to use pre-arranged radio signals and to otherwise alert her if
      superior staff was either approaching Master Control or had called on the telephone to
                                             -18-


     speak with her constituted conduct that was unbecoming a State employee and was
     detrimental to State service. Such conduct constituted unacceptable personal conduct,
     sufficient to justify Respondent’s demotion of Petitioner under 25 NCAC 1J.0614(i)(5).
     Testimony of Michelle Carraway, T. pp. 106, 108-10; Testimony of John Sloan, T. pp.
     136-37; Testimony of Steven Sigmon, T. pp. 167-70; Respondent’s Ex. 14, 15, 16 22.


5.   Petitioner’s abandonment of her post as the Master Control Sergeant in a close custody
     penal institution without first having obtained proper relief and her direction to
     subordinate staff to keep the A101B sliding security door open and unsecured, in close
     proximity to Master Control, created the potential for death or serious bodily injury to an
     employee or to a member of the public or to a person over whom Petitioner had
     responsibility. Accordingly, Petitioner’s conduct on May 29, 2005, and any other
     occasion when she admittedly abandoned her post as the Master Control Sergeant without
     having obtained proper relief, constituted grossly inefficient job performance sufficient to
     justify Petitioner’s demotion by Respondent under 25 NCAC 1J.0614(f).

6.   In the absence of direct evidence of a stated purpose to discriminate, a Petitioner in a
     disparate discipline case must prove a violation of Title VII through circumstantial
     evidence and the burden-shifting scheme set out in McDonnell Douglas Corp. v. Green,
     411 U.S. 792 (1973). Bryant v. Aiken Reg. Med. Ctrs., Inc., 333 F.3d 536, 544-45 (4th
     Cir. 2003).

7.   Petitioner has not alleged or produced any direct evidence of discrimination on the part of
     Respondent.

8.   Under the McDonnell Douglas proof scheme, a petitioner must first prove the elements of
     a prima facie case for each purported claim, see St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
     502, 506-07 (1993), after which the burden shifts to Respondent to “articulate a
     legitimate, non-discriminatory reason for the adverse employment action.” Anderson v.
     Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005). If Respondent
     meets this burden, any presumption of discrimination created by the prima facie case
     dissolves and Petitioner bears the burden of proving the existence of an intent to
     discriminate against Petitioner. See St. Mary’s Honor Ctr., 509 U.S. at 507. See also
     Anderson, 406 F.3d at 268.

9.   To state a prima facie case of racially discriminatory disparate discipline, Petitioner must
     demonstrate that: (1) she is a member of a class protected by Title VII; (2) the prohibited
     conduct in which she engaged was comparable in seriousness to misconduct of
     employees outside the protected class; and (3) the disciplinary measures enforced against
     her were more severe than those enforced against those other employees. Cook v. CSX
     Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). See also Taylor v. Virginia Union
     University, 193 F.3d 219 (4th 1999), cert. denied, 528 U.S. 1889 (2000).
                                             -19-


10.   Petitioner has established the first element of the prima facie case. Petitioner fails to
      establish the second and third elements of a prima facie case of a claim for discriminatory
      disparate discipline.

11.   Petitioner identified Correctional Sergeants Susan McKinney, Robert Fullbright and
      Michael Kirby as the white employees who engaged in misconduct that was comparable
      in seriousness to her own admitted misconduct but who were not demoted as Petitioner
      was.

12.   By stipulation of the parties, it was acknowledged that Sergeants McKinney, Fullbright,
      and Kirby abandoned their posts as Master Control Sergeant for the sole purpose of using
      the staff bathroom in the Master Control Sally Port. The parties stipulated and the
      evidence showed that Sergeant McKinney had left Master Control on one occasion with
      the express permission of her immediate supervisor, Lieutenant Charles Thrift. The
      parties further stipulated that Sergeants McKinney, Fullbright, and Kirby did not leave
      any doors unsecured during their respective unrelieved absences, did not relinquish any
      keys they were required to possess, and were gone only for the time necessary to use the
      staff bathroom in the Master Control Sally Port and return to Master Control. T. pp. 314-
      16.

13.   Conversely, in conjunction with certain admissions of Petitioner, the evidence presented
      at trial established that Petitioner: (1) abandoned her post in Master Control in order to
      use the restroom in the lobby at Alexander and to smoke a cigarette on “no more than six
      occasions;” (2) was absent from her post for between “five and ten minutes” during each
      such absence; (3) directed subordinate staff to leave the A101B sliding security door
      open during her extended absences; (3) relinquished the Bar Gate key for extended
      periods of time both during her unrelieved absences and her normal shift; and (5) directed
      subordinate staff to conceal her unrelieved absences from Master Control.

14.   The conduct in which Petitioner engaged was not comparable in seriousness to the
      conduct of Sergeants McKinney, Fullbright and Kirby and, therefore, Petitioner was not
      similarly situated. Accordingly, Petitioner is unable to establish the second element of a
      prima facie case of racially discriminatory disparate discipline.

15.   Even assuming that Petitioner could be considered to have established a prima facie case
      of discriminatory disparate discipline on the basis of her race, Respondent has advanced a
      legitimate, non-discriminatory reasons – (1) Petitioner’s instructions to subordinate staff
      to conceal her unrelieved absences from Master Control; (2) Petitioner’s relinquishment
      of the Bar Gate Key to subordinate staff; and (3) leaving the A101B sliding security door
      open and unsecured during her absences – for its decision to demote Petitioner.
      Accordingly, Petitioner must prove that Respondent’s stated reason is mere pretext for an
      underlying intent to discriminate on the basis of Petitioner’s race or gender and,
      therefore, should not be believed. Anderson v. Westinghouse Savannah River Co., 406
      F.3d 248, 268 (4th Cir. 2005).
                                               -20-


16.    Petitioner has failed to present any credible evidence that the recommendation of
       Reginald Weisner, the approval of Respondent’s Director of Human Resources, Ron
       Gillespie, or the final decision of Respondent’s Employee Relations Committee to
       demote Petitioner were unworthy of belief and a pretext for an intent to discriminate
       against Petitioner on the basis of her race.

       Based upon the foregoing Findings of Fact and Conclusions of Law, the following
decision is made.

                                           DECISION

        The decision of Respondent to demote Petitioner from her position as a Correctional
Sergeant for unacceptable personal conduct and for grossly inefficient job performance is
supported by the evidence and is affirmed. Petitioner has failed to establish a prima facie case
that Respondent’s decision to demote Petitioner from her position as a Correctional Sergeant was
motivated or influenced by Petitioner’s race. The undersigned further finds that, even if
Petitioner successfully established a prima facie case of discrimination on the basis of race,
Respondent articulated a legitimate, non-discriminatory reason for Petitioner’s demotion, a
reason that Petitioner was unable to show was pretextual.

                                            NOTICE

       The agency making the final decision in this contested 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’ attorneys of record and to the Office
of Administrative Hearings.

       The final decision in this contested case will be made by the North Carolina State
Personnel Commission.

       This the 27th day of July, 2006.



                                                      _____________________________________
                                                      Beecher R. Gray
                                                      Administrative Law Judge

								
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