STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF FORSYTH 09 OSP 3337
______
Gregory Curtis Cain )
Petitioner, )
)
v. ) DECISION
)
Winston Salem State University, )
Respondent. )
______
The above-captioned case was heard before Selina M. Brooks, Administrative Law Judge, on 21 October 2009, in High Point, North Carolina.
APPEARANCES
For Petitioner: Pro Se
2133 Gerald Street
Winston Salem, N.C. 27101
For Respondent: John P. Scherer II
Assistant Attorney General
N.C. Department of Justice
P. O. Box 629
Raleigh, North Carolina 27602
EXHIBITS
Admitted for Petitioner
1. Record of Resident Death
2. Letter from therapist
3. Letter from Dr. Bloomfield.
Admitted for Respondent
1. 30 January 2009 Statement from Otis Blyther
2. 29 January 2009 E-mail from Peter Blutreich
3. 9 February 2009 Notice of Pre-Disciplinary Conference
4. 17 February 2009 Decision of Dismissal for Unacceptable Personal Conduct
5. Excerpts from State Personnel Manual Re: Disciplinary Action/Dismissal
WITNESSES
Called by Petitioner
Petitioner
Called by Respondent
Otis Blyther
Theander Cunningham
Peter Blutreich
STATEMENT OF THE CASE
The sole issue for consideration is whether Respondent had just cause to terminate Petitioner for unacceptable personal conduct?
FINDINGS OF FACT
On the basis of careful consideration of the testimony presented at the hearing, the documents and exhibits received into evidence, and the entire record in this proceeding, the undersigned finds the following:
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 suspension, Petitioner was a permanent State employee subject to Chapter 126 of the General Statues of North Carolina (the State Personnel Act) and is a citizen and resident of Forsyth County, North Carolina.
3. Respondent Winston Salem State University (“WSSU”) is subject to Chapter 126 and is the Petitioner’s employer.
4. In December 2008, Theander Cunningham, housekeeping supervisor at WSSU, and Peter Blutreich, Assistant Director for Housing, decided to move Petitioner from the supply and delivery van position to a general housekeeping position. Cunningham and Blutreich did not demote Petitioner, but changed his duties for operational reasons.
5. At close to 4:00 p.m. on 14 January 2009, Cunningham participated in a conference. During the meeting, his phone vibrated twice. Each time the caller ID indicated a “restricted number.” Cunningham did not recognize this phone number or know who was calling him. Thus, he expected the caller to leave him a voice mail. Later, Cunningham discovered that he had no voice mail messages. When Cunningham left the meeting, Ella Self, an employee in his section, informed him that Petitioner left work early due to a family emergency. A few minutes later, another employee informed Cunningham that Petitioner had asked Otis Blyther to clock out for him. According to Cunningham, the department procedures required an employee to get in touch with his or her supervisor by phone or walkie-talkie, if he or she needed to leave work before the end of a shift. If the supervisor was unavailable, the employee needed to contact someone further up the chain of command or leave messages. As for clocking out, only a supervisor may authorize an employee to clock out another employee.
6. At approximately 4:30 p.m. on 14 January 2009, Blutreich headed home in his vehicle after several meetings. He noticed a hearse driving in front of him, and, as he moved closer, recognized Petitioner driving the vehicle. Blutreich wondered how Petitioner could have left work at the close of his shift (4:30 p.m.), changed clothes, and gotten into the hearse without leaving work early. Blutreich called Cunningham to determine why Petitioner may have left before the end of his appointed shift. Cunningham informed Blutreich that another employee had informed him that Petitioner had left due to a family emergency. Blutreich asked Cunningham to get a statement from Petitioner the next day.
7. Later, Cunningham spoke with Otis Blyther, a five year employee of WSSU, and obtained a written statement from him. Petitioner asked Blyther to clock him out late in the afternoon on 14 January 2009. Petitioner explained that his aunt had passed away and Petitioner needed to leave work early. Blyther thought about the request, but later refused to clock out Petitioner. Blyther testified that if an employee needed to leave early, he or she needed to contact someone in the chain of command for approval prior to leaving the work site and that supervisors had phones and voice mail available for messages. R Ex. 1
8. About two weeks later, Blutreich prepared to have a meeting with Petitioner regarding the incidents of 14 January 2009. Blutreich tried to call Petitioner twice on 29 January 2009 to inform him about the meeting. After receiving no response, Blutreich walked to Petitioner’s work area in Building 2 to speak with him. Blutreich found Petitioner asleep in the fourth floor study room of the building with his broom and dustpan resting beside him. When he initially walked by the room, Blutreich did not speak to Petitioner. Then, Blutreich turned around and said, “Boo.” At that time, Petitioner woke up and Blutreich told him that the meeting would take place later that afternoon. According to department policy and procedures, employees are not allowed to sleep during regular duty hours. Petitioner was asleep at approximately 2:00 p.m., which is not a break or lunch period. Blyther also has seen Petitioner asleep during work hours. R Ex. 2
9. A few days later, on 2 February 2009, Blutreich observed Petitioner outside of his assigned work area during working hours. Specifically, Blutreich saw Petitioner at a convenience store area away from his assigned cleaning area. Petitioner loitered in the area for more than forty minutes.
10. Blutreich and Cunningham discussed Petitioner’s incidents: leaving work early, asking another employee to clock him out, sleeping on the job, and loitering away from his work area. They believed that Petitioner was clearly not attempting to follow procedures and decided to issue Petitioner a Notice of Pre-Disciplinary Conference for Unacceptable Personal Conduct up to and including dismissal. R Ex. 3
11. On 11 February 2009, Petitioner attended the Pre-Disciplinary Conference with Blutreich, Cunningham, and Calvin Holloway from WSSU Human Resources. Petitioner at first asserted that he tried to call Cunningham on his Walkie-talkie, but recanted later in the meeting. He also claimed that he had called Cunningham, but admitted that he did not leave a message. Petitioner further denied that he was asleep on 29 January 2009, and admitted that he was out of his work area on 2 February 2009. Petitioner claimed that other employees were also outside of their work areas. R Ex. 4
12. Blutreich and Cunningham discussed Petitioner’s responses between themselves and with WSSU Human Resources. All parties agreed that the University needed to dismiss Petitioner for unacceptable personal conduct. Blutreich, the primary decision maker, testified that he believed that Petitioner refused to follow work rules in violation of the State Personnel Manual. Specifically, Blutreich believed that Petitioner knew the work rules and willfully refused to properly contact his supervisor prior to leaving work early, improperly asked another employee to clock him out, slept on the job in violation of policy, and left his assigned work area for over forty-five minutes. Blutreich further testified that if Petitioner had left a message when he left work early, Blutreich would not have terminated him. Only after Petitioner persistently violated the rules, did Blutreich decide to seek termination. R Ex. 5
13. On 13 February 2009, Petitioner was terminated from employment with WSSU, due to unacceptable personal conduct, specifically, failure to follow work directives and proper procedures. R Exs. 4 and 5
14. Petitioner appealed the suspension and proceeded through the internal grievance procedure. After a final grievance hearing, the University upheld the suspension and Petitioner appealed to the Office of Administrative Hearings.
15. Blutreich’s hearing testimony has mirrored the information in the Pre-Disciplinary Conference letter to Petitioner, his 29 January 2009 e-mail, and the termination letter. I find Blutreich’s testimony to be consistent and credible. I also find that the testimony of Blyther and Cunningham has mirrored the information in Blyther’s 30 January 2009 statement, the Pre-Disciplinary Conference letter to Petitioner and the termination letter. I also find Blyther and Cunningham’s testimony consistent and credible.
16. Petitioner at the hearing admitted that he had left work early on 14 January 2009. He claimed that he called Cunningham twice, but admitted that he had not left a voice mail for Cunningham. Petitioner further denied that he slept on the job. He admitted that he was not on a break and had stood outside his work area for more than thirty minutes on 2 February 2009.
17. I find that Petitioner has admitted that he stood outside of his work area without proper authorization. I further find that Petitioner’s explanations about leaving work early, asking Blyther to clock out for him, and sleeping on the job are not credible. I find that the Respondent has shown by a preponderance of the evidence that Petitioner committed the conduct described in the termination letter.
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. Section 7, Page 4 of the State Personnel Manual states that a career state employee may be dismissed for unacceptable personal conduct. Section 7, Page 3 of the Manual defines unacceptable personal conduct to include conduct for which no reasonable person should expect to receive prior warning and the willful violation of known or written work rules. R Ex. 5
3. The North Carolina Administrative Code echoes this language. According to the code, an employee may be terminated for just cause, including unacceptable personal conduct. 25 N.C.A.C. 1J.0604 The Code also defines unacceptable personal conduct to include the willful violation of known or written work rules. 25 N.C.A.C. 1J.0614(I).
4. Pursuant to N.C.G.S. § 126-35(d), the Respondent has the burden of proving that it had just cause for dismissing Petitioner.
5. As established by the foregoing Findings of Fact, the evidence has shown that Petitioner committed unacceptable personal conduct in violation of the State Personal Act.
6. Based on the foregoing, Respondent had just cause to dismiss Petitioner due to his unacceptable personal conduct in accordance with N.C.G.S. 126-35 and the relevant provisions of the State Personnel Manual of the North Carolina Office of State Personnel.
On the basis of the above Conclusions of Law, the undersigned issues the following:
DECISION
It is hereby determined that the Respondent’s decision to terminate Petitioner’s employment due to his unacceptable personal conduct is AFFIRMED.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Services Center, Raleigh, N.C. 27699-6714, in accordance with N.C.G.S. § 150B-36(b).
NOTICE
The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to Decision and to present written arguments to those in the agency who will consider this Decision. N.C.G.S. §150B-36(a).
The agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.
The agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.
This the 16th day of December, 2009.
______/s/______
Selina M. Brooks
Administrative Law Judge
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