STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF GUILFORD 01 OSP 1575
GREGORY S. HARMON, )
Petitioner )
) DECISION GRANTING
vs. ) SUMMARY JUDGMENT
)
N.C. DEPARTMENT OF REVENUE, )
Respondent )
A Petition for Contested Case Hearing in the above-captioned matter was filed in the Office of Administrative Hearings on October 5, 2001. Respondent filed a Motion to Dismiss and/or Motion for Summary Judgment and Motion for Stay on December 12, 2001. Respondent’s Motion for Summary Judgment was supported by the Affidavit of Larry Patterson, Revenue Field Auditor Supervisor with the Respondent Department of Revenue, by various exhibits attached to the Motion and by a detailed Memorandum of Law.
The undersigned issued a Request for Response to Motion to Petitioner on December 13, 2001, notifying Petitioner to respond by December 24, 2001, if he desired to make objections to Respondent’s motions. Petitioner has not filed any objections.
Respondent’s motions are therefore ripe for decision.
ISSUE
Whether Respondent is entitled to judgment as a matter of law on Respondent’s claim that Petitioner was terminated for just cause or on Petitioner’s claims that transfer was denied and/or termination was forced upon him for reasons of religious discrimination or retaliation.
UNCONTROVERTED FINDINGS
1. Petitioner was employed as an auditor with the Department of Revenue (“DOR” or Respondent”). Petitioner was terminated from his employment on September 7, 2001.
2. Petitioner did not report for work from June 13, 2001 through the date of termination with the exception of three and one-half hours worked July 2, 2001.
3. Petitioner was asked to produce a doctor’s note to explain his absence. His supervisors requested this note on July 2, July 13, July 19, August 8, August 29, and September 5, 2001.
4. In response to those requests, Petitioner provided the documents labeled Respondent’s Exhibits 1(a)-(d) and 2(a)-(e), attached to Respondent’s Motion. These documents consist of two handwritten notes from the Petitioner, two patient aftercare instruction sheets signed by Petitioner, a prescription and receipt from Wal-Mart, a receipt for payment from Duke Urgent Care and a form with notations concerning Petitioner’s symptoms.
5. On September 5 and September 6, 2001, Respondent DOR conducted pre-disciplinary meetings with Petitioner. Petitioner was terminated from employment September 7, 2001.
6. In support of its Motion for Summary Judgment, Respondent filed the Affidavit of Petitioner’s supervisor, averring that Petitioner was absent from June 13 through September 7, 2001 with the exception of one three and one half hour period on July 2. He also averred that the time sheets, submitted as Exhibits 3 through 6, reflected Petitioner’s sick leave and vacation leave totals for each month, that Petitioner exhausted both varieties of leave on July 20, 2001, and that the Exhibits 1(a) through (d) and 2(a) through (e) were submitted by Petitioner in response to the supervisor’s requests for a doctor’s note for Petitioner’s absence.
7. Petitioner did not file a response to the Respondent’s Motion for Summary Judgment and did not file any opposing affidavits. Petitioner, as an adverse party, must file affidavits setting forth specific facts showing that there is a genuine issue of fact for trial.
8. Petitioner has not denied the truth of Respondent’s assertions, either as to his absence from work beginning June 13, 2001, the exhaustion of all leave on July 20, 2001, or his failure to report to work from that time through September 7, 2001. In addition, he has not alleged that he submitted anything other than Respondent’s Exhibits 1(a) through (d) and 2(a) through (e) in lieu of a doctor’s explanation.
9. Petitioner has alleged that he was terminated because of his Judeo-Christian beliefs and as a result of his exercise of his religion. However, he has failed to allege any facts to support these claims.
CONCLUSIONS OF LAW
1. Pursuant to NC.G.S.. 150B-36(d), 1A-1, Rule 56 of the North Carolina Rules of Civil Procedure, and 26 NCAC 03.0115, the undersigned has authority to grant Summary Judgment.
2. The State Personnel Manual provides that an employee may be terminated for unacceptable personal conduct. (Section 7, Page 17).
3. Unacceptable personal conduct includes, among other things, absence from work after all authorized leave credits and benefits have been exhausted and insubordination. Insubordination is defined as the willful failure or refusal to carry out a reasonable order from an authorized supervisor. (State Personnel Manual Section 7, Page 3.)
4. The State Personnel Manual provides that a statement from a medical doctor or other acceptable proof may be required to avoid abuse of sick leave privileges. The DOR employment handbook refers to the State Personnel Manual as the final authority for state policies. North Carolina Administrative Code, Section 25 NCAC 01E .0304 also provides for the verification of sick leave by a doctor’s statement or other acceptable proof.
5. The undisputed facts show that Petitioner was absent from work after all leave credits and benefits had been exhausted and further, that he failed to provide a doctor’s excuse although he was asked to do so on several occasions.
6. Respondent has the burden of proof in any case filed after January 1, 2001, to prove by a preponderance of the evidence that the Petitioner engaged in at least one action that amounted to unacceptable personal conduct and that provided the Respondent with just cause to dismiss Petitioner. N.C.G.S. 126-35(d).
7. To be entitled to summary judgment, Respondent need only show sufficient evidence that there is no genuine issue of material fact as to at least one basis for just cause dismissal. Respondent’s affidavit establishes the facts that the Petitioner engaged in unacceptable conduct and Respondent had just cause to dismiss Petitioner.
8. The Petitioner not only did not file a response to Respondent’s Motion for Summary Judgment, but was under a duty to file affidavits setting forth specific facts showing the existence of genuine issues of fact for trial. N.C.G.S. 1A-1, Rule 56(e). Celotex v. Catrett, 477 U.S. 317, 322, 105 S. Ct. 2548, 2552 (1986).
9. Only disputes over material facts that are supported by sufficient proof that a reasonable trier of fact could resolve them in the nonmoving party’s favor are genuine issues for trial and avoid summary judgment. Celotex, 477 U.S. at 322-323, 105 S. Ct. at 2552. There is no dispute that exists over a material fact.
10. Because the Respondent has proffered undisputed facts which justify Petitioner’s dismissal for just cause, it is not necessary to reach Petitioner’s claim for religious discrimination. However, Petitioner has failed to demonstrate a dispute of material fact raising a genuine issue for trial with regard either to religious discrimination or retaliation.
11. No issue of material fact remains in this case. The Petitioner failed to respond or otherwise refute the uncontroverted facts contained in Respondent’s affidavits. Summary Judgment is otherwise appropriate as there are no genuine issues of material fact for trial and the Respondent is entitled to judgment as a matter of law.
DECISION
As there is no genuine issue of material fact in this case and the movant is entitled to judgment as a matter of law, the undersigned hereby GRANTS summary judgment for the Respondent.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 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 review the administrative law judge’s Decision Granting Summary Judgment pursuant to N.C.G.S. 150B-36(d) and make the Final Decision.
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 17th day of January, 2002.
______
Julian Mann, III
Chief Administrative Law Judge
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