STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD 01 OSP 1045

Dennis Covington, )

Petitioner, )

)

v. ) DECISION

)

North Carolina Agricultural and )

Technical State University, )

Respondent. )

This contested case was heard before Beryl E. Wade, Administrative Law Judge, on February 25th and 26th 2002, in High Point, North Carolina.

APPEARANCES

William H. Hill

MOSS, MASON & HILL

P. O. Box 9597

Greensboro, North Carolina 27429

ATTORNEY FOR PETITIONER

Sylvia Thibaut

Kathleen Edwards

ASSISTANT ATTORNEY GENERAL

NC Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

ATTORNEYS FOR RESPONDENT

ISSUES

1. Did Respondent have just cause to dismiss Petitioner?

2. Did Respondent use proper procedure to dismiss Petitioner?

STIPULATED FACTS

1. The Office of Administrative Hearings (OAH) has jurisdiction over the parties.

2. Petitioner was a career State employee at the time of his dismissal from NCA&T.

3. Petitioner timely and properly exhausted his internal grievance procedures before filing his contested case with the OAH.

4. Petitioner timely filed his contested case with the OAH.

5. Respondent has the burden of proof to show just cause to dismiss Petitioner.

FINDINGS OF FACTS

1. Petitioner worked at NCA&T as a residential housing officer (RHO) beginning in January 1997. (Tr. p. 200)

2. Petitioner applied for a police officer position at NCA&T on or about 7 August 1996. (Respondent’s Ex. 1)

3. Before any applicant for a police position is hired at NCA&T, a background investigation is completed. (Tr. pp. 26-27) Captain, then Major, Richetta Slade completed Petitioner’s background investigation. (Tr. p. 26)

4. Petitioner submitted a total of four applications for employment to NCA&T. (Respondent’s Ex.s 1, 2, 4, 5) On these four applications, Petitioner gave three different reasons for leaving employment with Morrison Youth Institution:

(1) personal reasons (Resp. Ex. 1; Tr. p. 28);

(2) went to work for Owen Illinois (Resp. Ex.s 2, 5; Tr. pp. 29, 42 ); and

(3) unfair treatment (Resp. Ex. 3; Tr. p. 41).

5. The actual reason Petitioner left Morrison Youth Institution was that he was dismissed for unacceptable personal conduct. (Tr. pp. 31-32)

6. Despite the fact Petitioner provided false and/or misleading information on all four applications he submitted to NCA&T, Captain Slade decided, after speaking with Petitioner about this matter, to give Petitioner a chance; and she recommended that he be hired as a police officer at NCA&T. (Tr. p. 41) Her recommendation was accepted and Petitioner was hired as a police officer at NCA&T. Id.

7. Petitioner was perceived to have performed his duties as a police officer at NCA&T satisfactorily and, effective 6 September 2000, was promoted to a sergeant’s position. (Respondent’s Ex. 6)

8. On November 1, 2000, the NCA&T police dispatcher directed Petitioner to respond to an automobile accident on the campus. (Tr. p. 201) The dispatcher maintains a log which records the dates of incidents, the case numbers assigned to incidents, the offenses reported, the location of incidents, complainants, the suspects (if known), whether complainants are students or non-students, and the names of the officers dispatched to the scene. (Respondent’s Ex. 8; Tr. p. 51)

9. Petitioner reported to the scene of the accident. During his investigation, the victim advised him that it was a “hit-and-run.” (Tr. p. 201) The North Carolina General Statutes require that an accident report be completed and a copy of that report forwarded to the North Carolina Division of Motor Vehicles (DMV), which maintains such records for several purposes. (Tr. pp. 136-137) Law enforcement officers who are not in the North Carolina Highway Patrol are required to send copies of accident reports to the DMV within ten days of taking the report. (Tr. pp. 137, 143)

10. Petitioner did complete an accident report (Respondent’s Ex. 10), which he gave to Ms. Toki, another employee in the NCA&T Police Department who also generates a police incident case number log. (Tr. p. 52). Ms. Toki’s log contains the dates of incidents, the case numbers assigned to incidents, the offenses reported, the location of incidents, complainants, the suspects (if known), whether complainants are students or non-students, whether an arrest was made, the names of the officers taking the report, and the arrest numbers (if applicable). (Respondent’s Ex. 9; Tr. p. 52) Ms. Toki fills out her log as officers turn in the actual, written reports to her, which she files after logging them. (Tr. pp. 52, 117, 134, 349)

11. The victim of the November 1, 2000 accident was Ms. Arnasia Faison, whose uncle is a sergeant with the North Carolina Highway Patrol. (Respondent’s Ex. 10; Tr. pp. 72, 74) Ms. Faison, who was injured in the accident (Tr. p. 80), contacted her uncle, Michael Faison, to request his assistance with the matter. (Tr. p. 74)

12. Sergeant Faison, who has been with the Highway Patrol for ten years and personally investigated between 800 to 1,000 accidents (Tr. p. 72), contacted Petitioner, asked him what was being done in the investigation, and requested a copy of the accident report. (Tr. p. 74) Petitioner told Sergeant Faison that he was investigating the accident and that he would send a copy of the report to him. Id.

13. When Sergeant Faison did not receive a copy of the accident report, he contacted Petitioner again. Id. Petitioner told Sergeant Faison that he had located the person who struck Ms. Faison, and that the driver’s father was employed with the University. (Tr. pp. 74, 77) But Petitioner never sent an accident report to Sergeant Faison. (Tr. pp. 75-76)

14. Having been unable to obtain a copy of the accident report from Petitioner, Sergeant Faison contacted other persons in the NCA&T Police Department, including Ms. Toki and Captain Slade. Id. Sergeant Faison was advised that the accident was still under investigation. (Tr. pp. 75-76, 78)

15. Captain Richetta Slade has worked for the NCA&T police department for 21 years. (Tr. p. 25) At the time of Petitioner’s termination, she was the Major in charge of Patrol Operations. (Tr. p. 25) In that capacity she was responsible for all NCA&T police officers. (Tr. p. 26) Captain Slade took approximately two months of medical leave in the fall of 2000, returning to work in November 2000. (Tr. pp. 52-53) When she returned to work, there were two problems concerning Petitioner that she had to resolve. The first problem was that Petitioner had refused to turn in information to Major Gloria Graves (who was covering Captain Slade’s duties while she was on medical leave) concerning Petitioner’s field training of an officer. (Tr. p. 53) This information was required in order to certify a new hire as a police officer. (Tr. p. 53) Captain Slade wrote Petitioner’s supervisor, Lieutenant Feaster, and ordered that the information be turned in by the end of the day, and it was. (Tr. p. 54)

16. The second problem concerning Petitioner was that the Faison hit-and-run accident report completed by Petitioner was missing. (Tr. p. 54) Sergeant Faison had still not received a copy of the report, and Chief Williams had given Major Slade responsibility for locating it. (Tr. pp. 54-55) Captain Slade initiated a search for the report, including speaking with Ms. Toki, but the report could not be found. (Tr. p. 54) Captain Slade also spoke with Sergeant Faison, who called her requesting a copy of the report. (Tr. p. 55)

17. Finally, after the search for the missing report was unsuccessful, Chief Williams ordered Captain Slade to have Petitioner rewrite the report. (Tr. p. 55) Because Petitioner’s supervisor, Lieutenant Feaster, was not at work that day, Captain Slade contacted Petitioner directly. (Tr. p. 117) Captain Slade told Petitioner that he needed to rewrite the report because the first one he wrote was missing. (Tr. pp. 55, 356) This conversation occurred on Wednesday, 29 November 2000. (Tr. p. 56) Petitioner told Captain Slade that he would rewrite the report. Id.

18. When Captain Slade reported to work the following day, Thursday, November 30, 2000, the report had not been rewritten by Petitioner, and Captain Slade contacted Petitioner directly again because Lieutenant Feaster was still on vacation. (Tr. pp. 56, 118) Captain Slade told Petitioner that she needed the report before Petitioner left work that day. (Tr. pp. 56-57) Petitioner told Captain Slade that he would prepare the report that day. (Tr. p. 57)

19. When Captain Slade reported to work the following day, Friday, December 1, 2000, the report was not on her desk. (Tr. p. 57) Both Lieutenant Feaster and Petitioner were off that day, and Captain Slade contacted Petitioner by telephone at his home. (Tr. pp. 57, 118) She asked Petitioner where he had put the report and Petitioner told her he had not done the report. (Tr. p. 57) Petitioner then told Captain Slade that it was not his fault that the report was lost and that he was not going to rewrite it. Id. When Petitioner said this, Captain Slade told him that he needed to think about what he was saying to her. (Tr. p. 58) Petitioner told Captain Slade, “I know exactly what I’m saying to you, and I’m not going to do the report.” (Tr. pp. 58, 209) Captain Slade then said good-bye and ended the conversation. Id.

20. Captain Slade spoke to both Chief Williams and Lieutenant Feaster later that day about her telephone conversation with Petitioner. (Tr. pp. 58-59) Captain Slade instructed Lieutenant Feaster to meet with her and Petitioner the following Monday, December 4, 2000, in Captain Slade’s office. (Tr. p. 59)

21. The three met the following Monday and Captain Slade asked Petitioner to explain why he refused to rewrite the accident report after being ordered three times to do so. (Tr. p. 59) Petitioner again said it was not his fault that the original report was lost, that he was not going to rewrite the report, and that he was “a man and you’re going to treat me like a man.” (Tr. pp. 59-60; 214-215) At that time Petitioner also stood up and leaned over Captain Slade’s desk. (Tr. p. 60)

22. Captain Slade told him to lower his voice, and stated that she was talking to him in a calm and professional manner and expected him to talk to her the same way. (Tr. pp. 60, 215) Petitioner told her, “Well, you do what you go[t] to do, but I’m not writing the report.” (Tr. p. 60; see also Tr. pp. 214-215 (Petitioner admits he told Captain Slade he was not going to rewrite the report))

23. While Petitioner was standing and leaning over Captain Slade’s desk, she was frightened, did not know what Petitioner was going to do, and thought Petitioner was out of control. (Tr. p. 60)

24. Sergeant Gilchrist overheard the conversation between Captain Slade and Petitioner because the walls between their offices do not extend all the way to the ceiling. He recalled that he heard Petitioner’s voice get louder and louder during the conversation. (Tr. pp. 147-148) He also heard Captain Slade tell Petitioner to quiet down and heard Petitioner tell Captain Slade, “Just do what you’ve got to do.” (Tr. p. 148)

25. After the conversation with Petitioner on December 4, 2000, Captain Slade spoke with Chief Williams and the Director of Public Safety, Mr. Daughtry. (Tr. p. 61) Mr. Daughtry recommended that Petitioner be dismissed for insubordination and unacceptable personal conduct. (Tr. pp. 61, 253) Captain Slade listened to Chief Williams and Mr. Daughtry, and also spoke with the Employee Relations Manager in NCA&T’s Human Resources Department. Id. Then she scheduled a predisciplinary meeting with Petitioner. (Respondent’s Ex. 13) The written notice of the predisciplinary meeting indicates it was set for December 5, 2000, but the actual date of the meeting was December 6, 2000. (Tr. p. 62)

26. Chief Williams, Lieutenant Feaster, Petitioner and Captain Slade were present at the predisciplinary meeting. (Tr. p. 62) During that meeting, Petitioner apologized to Captain Slade several times and told her he was having personal problems, and knew that he was wrong, and was going to rewrite the report. Id. Because Petitioner apologized and indicated that he was having personal problems, Captain Slade decided not to dismiss Petitioner, but to give him another chance. She suspended him for two weeks for insubordination based on his refusal to comply with her orders to rewrite the accident report and his behavior during the conference on December 4, 2000 (Respondent’s Ex. 14), and recommended that he attend anger control at the Employee Assistance Program (EAP). (Tr. pp. 63, 220-221) Petitioner agreed to report to the EAP for assistance. (Tr. p. 63)

27. On the same day as the predisciplinary meeting, Petitioner turned in a supplemental report to the accident report (Respondent’s Ex. 11) He also turned in the rewritten accident report (Respondent’s Ex. 12) either that same date or the next day. (Tr. pp. 63-64; 215)

28. On December 7, 2000, Captain Slade gave Petitioner a disciplinary letter, suspending him for two weeks, which also gave him notice that “this type of conduct is unacceptable, and any further incidents will result in your immediate dismissal.” (Respondent’s Ex. 14; Tr. pp. 64-65; 220)

29. I find as a fact that Petitioner was given a direct order to rewrite the missing accident report and he should have rewritten it. Petitioner has served in the armed forces on two occasions. (Tr. p. 345; Respondent’s Ex.s 1-2, 4-5) Anyone who has so served understands or should understand how one must obey his superior’s orders.