STATE OF NORTH CAROLINA
COUNTY OF DURHAM
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
05 OSP 1112
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Elva Catalina Lay
Petitioner,
v.
Durham Department of Social Services,
Respondent.
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DECISION
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On July 15, 2005, the Petitioner filed a petition for a contested case hearing with the Office of Administrative Hearings (OAH). The Petitioner alleged the following: 1) unjust termination based upon discrimination and/or retaliation, 2) failure to receive priority consideration and 3) suspension without just cause. The hearing was held on November 28, 2005 before the Honorable Sammie Chess, Jr.
APPEARANCES
Petitioner: Elva Catalina Lay
2135 Bogarde Street
#B1
Durham, NC 27705
Pro Se Petitioner.
Respondent: County of Durham Department of Social Services
Lucy Chavis
Assistant County Attorney
Office of the County Attorney
P.O. Box 3508
Durham, NC 27702
Attorney for Respondent.
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ISSUES
I. Whether the Petitioner’s failure to follow a direct order given by her superior constituted insubordination and was just cause for her termination?
II. Whether the Petitioner improperly used County equipment to send an email containing obscene, profane and abusive language to her superior in response to a direct order to use the Internet system for business purposes only?
III. Whether the Petitioner failed to receive priority consideration upon applying for a position in the County of Durham Department of Social Services (DSS)?
FINDINGS OF FACT
1. The Petitioner worked as a Processing Assistant III for the DSS. The Petitioner worked in the DSS Customer Access & Program Support Services Section (Support Services Section). Sharon S. Hirsch is the Assistant Director for the Support Services Section. The Petitioner works under the direction of Ms. Hirsch. The Support Services Section is located at the Duke Street site in Durham, North Carolina.
2. On May 31, 2005, Ms. Hirsch sent an email to the DSS workers at the Duke Street site. The email read as follows:
We are having major problems with the Client Tracking System at our Duke St. office because too many staff on the Duke Street server are surfing the Internet, taking up much needed space on our Server. IT is currently “knocking users off” the Internet. Unless you have a business need to use the Internet, please do not open it. It is slowing down critical work for the agency.
Resp. Exhibit 4.
3. On June 1, 2005, Petitioner responded to Ms. Hirsch’s email. Petitioner sent following email response, “BITCH GET OVER IT.” Id.
4. After receiving the Petitioner’s email, on June 2, 2005, the Respondent scheduled and notified the Petitioner of a Pre-Suspension/Dismissal Conference. Resp. Exhibit 5. The Petitioner signed an acknowledgment of receipt of the Pre-Suspension/Dismissal notification. Id. The Petitioner was suspended with pay pending the Pre-Dismissal Conference. Id.
5. On June 3, 2005, the Respondent held a Pre-Dismissal Conference. Resp. Exhibit 6. During the Pre-Dismissal Conference, the Petitioner admitted to sending the email. On June 7, 2005, the Petitioner was terminated for unacceptable personal conduct based on the following: 1) using obscene, profane and abusive language that communicated hostility and insubordination, and 2) improper use of county equipment and property. Id. On June 22, 2005, the Petitioner appealed the termination. Resp. Exhibit 7. On June 27, 2005, the Respondent upheld the termination. Resp. Exhibit 8. On July 15, 2005, the Petitioner filed a petition with the OAH. Resp. Exhibit 9.
6. On September 19, 2005, the Respondent sent the Petitioner a request for admissions. Resp. Exhibit 10. The Petitioner received the request for admissions. Id. The Respondent requested that the Petitioner admit to sending the June 1, 2005 email. Id. The Petitioner did not respond to the request. Id. On October 4, 2005, the Respondent filed the request for admissions with the OAH. Resp. Exhibit 10.
7. At the hearing, the Petitioner admitted to signing the County of Durham’s Receipt of Policy Verification (Verification Policy). Resp. Exhibit 1. The Verification Policy contains an acknowledgment of receipt of the Durham County Employee Handbook. (Handbook). Id. The Handbook is used by the DSS in guidance for disciplining its employees.
8. The Handbook lists several examples of unacceptable conduct in which an employee may be terminated without prior warning. Resp. Exhibit 2. An employee may be terminated for 1) acts that disrupt the normal operations of County government, and 2) careless, negligent, or improper use of County equipment or property. Id. The Petitioner admitted during the hearing to having access to the Handbook.
9. The Petitioner further admitted that, during her employ at the DSS, she did not apply for a position. The Petitioner also testified that she thought because she was Spanish and the majority of the workers in the DSS were African American that maybe her termination was racially motivated. And lastly, the Petitioner gave no testimony regarding her claim of retaliation.
10. Ms. Hirsch testified at the hearing that she found the email to be offensive. And that the type of behavior that the Petitioner engaged in was disruptive to the workforce.
CONCLUSION OF LAW
1. The parties are properly before the Office of Administrative Hearings. The Office of Administrative Hearings has subject matter and personal jurisdiction in this matter. All parties have correctly been designated and there is no question as to misjoinder or nonjoinder. The parties received proper notice of the hearing in this matter.
2. The Respondent has the burden of proof in showing that there was just cause to terminate the Petitioner. N.C. Gen. Stat. §126-35.
3. The Petitioner has the burden of proof for establishment of a prima facie case of race discrimination and retaliation. N.C. Dept. Of Correction v. Gibson, 308 NC 131, 141, 301 S.E. 2d 78, 85 (1983).
4. There is competent, material and substantial evidence to support the conclusion that the Respondent had just cause to terminate the Petitioner. The Petitioner was instructed not to use the Internet for nonbusiness purposes. The Petitioner responded to the order by sending an obscene, profane and abusive email communicating hostility towards her superior. The email was sent in direct violation of the superiors order. Petitioner’s failure to follow a direct order constituted insubordination and just cause for termination.
5. There is competent, material and substantial evidence to support the conclusion that the Petitioner was not denied priority consideration for a position at the DSS. In order to receive priority consideration pursuant to N.C. Gen. Stat. §126-7.1, the Petitioner must apply for the position. Petitioner admitted that she did not apply for a position at the DSS. Thus, as a matter of law there can be no denial of priority consideration for a job when the Petitioner did not apply for a position.
6. There is competent, material and substantial evidence to support the conclusion that the Petitioner failed to make a prima facie case for race discrimination. The Petitioner’s testimony alone was insufficient to sustain a prima facie case for race discrimination.
7. There is competent, material and substantial evidence to support the conclusion that the Respondent did not engage in retaliation against the Petitioner. The Petitioner gave no testimony regarding retaliation by the Respondent.
8. There is competent, material and substantial evidence to support the conclusion that the Petitioner was suspended with just cause. There was evidence to support that the Petitioner’s behavior was disruptive to the workplace. The Petitioner was suspended with pay pending a Pre-Dismissal Conference for unacceptable personal conduct. An employee may be suspended without warning for causes relating to personal conduct that are disruptive to the workplace. N.C. Gen. Stat. §126-35.
DECISION
BASED UPON THE ABOVE FINDINGS OF FACT AND CONCLUSIONS OF LAW, it is therefore the decision of this Administrative Law Judge that the Respondent had just cause to terminate the Petitioner, the Respondent did not engage in race discrimination and the Respondent did not retaliate against the Petitioner.
NOTICE
Pursuant to G.S. 150B-45, any party wishing to appeal the final decision of the Administrative Law Judge may commence such appeal by filing a Petition for Judicial Review in the Superior Court of Wake County or in the Superior Court of the county in which the party resides. The party seeking review must file the petition within 30 days after being served with a written copy of the Administrative Law Judge’s Decision and Order. Pursuant to G.S. 150B-47, the Office of Administrative Hearings is required to file the official record in the contested case with the Clerk of Superior Court within 30 days of receipt of the Petition for Judicial Review. Consequently, a copy of the Petition for Judicial Review must be sent to the Office of Administrative Hearings at the time the appeal is initiated in order to ensure the timely filing of the record.
This the 22nd day of February, 2006.
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Sammie Chess, Jr.
Administrative Law Judge
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