STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENBURG 06 OSP 0665

______

Thomasina Burrows, )

Petitioner )

) DECISION

v. ) by SUMMARY JUDGMENT

)

N.C. Department of Health and Human )

Services, Division of Vocational )

Rehabilitation Services/Independent )

Living Program, )

Respondent. )

______

THIS MATTER came before the undersigned Administrative Law Judge for hearing on August 10, 2006 in Charlotte, North Carolina. The Petitioner presented her case using witness testimony and exhibits (See Petitioner’s Exhibits 1-10). At the close of Petitioner’s case, the Respondent moved to dismiss the above cited matter based upon Petitioner’s failure to show a right to relief. In particular, Respondent asserts Petitioner failed to present a prima facie case of discrimination or retaliation due to gender and failed to set forth an actionable showing of a hostile work environment. The Petitioner, Thomasina Burrows, represented herself, and the Respondent was represented by Assistant Attorney General, Elizabeth Guzman.

STANDARD OF REVIEW

As Respondent is asserting the defense of Petitioner’s failure to state a claim upon which relief can be granted and as matters outside the pleading have been presented to the Undersigned and not excluded, the Undersigned shall treat Respondent’s motion as one for summary judgment, Petitioner having been given reasonable opportunity to present all pertinent material.

The standard of review for summary judgment is whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. See Kessing v. National Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). To entitle one to summary judgment, the movant must conclusively establish a legal bar to the nonmovant’s claim or complete defense to that claim. See Virginia Elec. and Power Co. v. Tillett, 80 N.C.App. 383, 385, 343 S.E.2d 188, 190-91, cert denied, 317 N.C. 715, 347 S.E.2d 457 (1986).

A party moving for summary judgment satisfies its burden of proof (1) by showing an essential element of the opposing party's claim is nonexistent or cannot be proven, or (2) by showing that the opposing party cannot (or did not) produce evidence to support an essential element of his or her claim or (3) the opposing party cannot surmount an affirmative defense which would bar the claim. See Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982).

BASED UPON the record and matters presented at hearing, the Undersigned makes the following findings of fact:

FINDINGS OF FACT

1. Petitioner is employed by the Department of Health and Human Services, Division of Vocational and Rehabilitation Services/Independent Living Program, as a Rehabilitation Counselor I, and had been continuously employed by the State for the preceding six years.

2. On March 9, 2006 Petitioner encountered a co-worker, Henry Mogotu, in a hallway area when some physical contact occurred. Petitioner claimed Mogotu intentionally touched her right breast. Mogotu claimed the contact was accidental, the result of a collision at a blind corner.

3. Petitioner stated that she believed she was sexually assaulted and complained to management about the incident. When she believed that the management team in her office had not handled the complaint appropriately, Petitioner complained to central management in Raleigh. During the ensuing investigation, Petitioner felt that tension was created between her coworkers and herself. Petitioner was unsatisfied with management’s response to her complaints of an unsafe work environment and chose not to return to work one week after the incident. As a result, Petitioner did not take a test that would have resulted in a pay increase and greater responsibility within her position.

4. Henry Mogotu testified that the area where the incident occurred was a blind corner where others had collided before as a common occurrence. He was walking to the area to warm coffee and was holding his cup while reading a document he held in his other hand when Petitioner came from the other direction, and then collided. Mr. Mogotu testified that any touching that occurred was accidental. He apologized to Petitioner and returned to his office. A short time later Petitioner returned to the hallway and Mr. Mogotu apologized to her again. He testified that Petitioner did not slap or strike him.

5. Mr. Mogotu learned later that day that Petitioner was very upset and that his supervisor would be speaking to him the following day about the incident. He described the incident to Georgia Gullege, his supervisor, as a collision, and any touching that may have occurred as accidental.

6. On April 28, 2006 Petitioner obtained a restraining order against Mogotu requiring him to stay at least 20 feet form her while at work. On May 1, 2006 Petitioner obtained a criminal summons for assault against Mogotu, for which he retained counsel to represent him.

7. Lisa Robinson, a Rehabilitation Counselor, testified that Petitioner came into her office at approximately 8:30 a.m. on March 9, 2006 and told her that Mr. Mogotu had bumped or touched her right breast. She was very upset and told Ms. Robinson that she (Burrows) had slapped the shit out of Mr. Mogotu. A day or two later Petitioner was still upset and told Ms. Robinson that she was unhappy with the way management had handled her complaint and was going to take things a step further.

8. Rosanna Wilfong, Assistant Unit manager, directly supervises Mr. Mogotu. She testified that on March 9, 2006 she was walking to her office, which is located adjacent to Mr. Mogotu’s office, when she heard loud talking in the hallway. She saw Petitioner speaking loudly and pointing at Mr. Mogotu. Lisa Robinson was also present. She asked if everything was alright but received no response.

9. Later on March 9, Petitioner came to Ms. Wilfong’s office. Tammie Wade was present also and heard Petitioner describe what had occurred earlier with Henry Mogotu. Petitioner initially described the incident as an intentional brush of her breast. She said she slapped Mr. Mogotu and had taken care of the matter. Ms. Wilfong and Ms. Wade asked Petitioner to repeat the description and Petitioner said Mr. Mogotu had grabbed her breast and she hit him in the chest. Ms. Wilfong told Petitioner she had to report to her supervisor, but Petitioner said not to, that she had taken care of the matter. Ms. Wilfong testified that she insisted she had to report the incident and each time, Petitioner said Wilfong didn’t need to report because she had taken care of it.

10. On March 10, 2006 Ms. Wilfong and the Unit Manage, Georgia Gulledge, spoke with Mr. Mogotu about the incident, which he described to them as an accident. He indicated to them that Petitioner had not slapped or struck him.

11. Maria Brown-Cherry, a Rehabilitation Counselor, testified that Mr. Mogotu had approached her a year prior to this incident and asked her “How’s the weather?” According to Brown-Cherry, Mogotu explained that in his country (Kenya) that was a way to inquire about the status of a woman’s menstrual cycle. She explained to him at the time that it was inappropriate to ask such a question, and he apologized. Ms. Brown-Cherry never reported the conversation to management. Mr. Mogotu had testified that the question was a polite greeting and nothing more. In April after Petitioner was gone, Ms. Brown-Cherry testified that Mr. Mogotu asked her the question “How’s the weather?” She became upset and reported it to Donna Lovill, her supervisor. Ms. Lovill spoke to Mr. Mogotu and suspended him for one week.

12. Petitioner testified that she believed the incident on March 9, 2006 resulted from a conversation she had with Mr. Mogotu the day before in which Mr. Mogotu had expressed a wish that Maria Brown-Cherry would be his second wife. Petitioner told him that was wrong in this country because he was already married.

13. Petitioner stated that on March 9, 2006, she had gone to the microwave area and turned from the oven to find Mr. Mogotu “in her face.” She testified that Mr. Mogotu rubbed his hand down her right breast. She hit his hand and spoke sharply to him. Petitioner testified that she probably called Mr. Mogotu names and cursed at him.

14. Petitioner spoke to several coworkers but did not recall her conversation with Rosanna Wilfong or telling her she had taken care of the matter. When she spoke to her immediate supervisor, Donna Lovill, Petitioner believed that nothing would be done about the incident, and reported it to the Human Resources Office (HR) in Raleigh.

15. Management undertook an investigation, beginning on March 10, 2006, with guidance from staff in the local Human Resources Office. Petitioner provided Ms. Gulledge and Ms. Lovill with names of several witnesses that she wanted interviewed about Mr. Mogotu. Though none of the witnesses had been present at the time of the March 9, 2006 incident between Petitioner and Mogotu, Gulledge and Lovill interviewed them. Each of the witnesses had information never before reported to management about comments made by Mr. Mogotu that were questionable for their appropriateness. Ultimately, management could not substantiate that there had been any wrongdoing during the incident of March 9, 2006 and prepared a report. Because Petitioner was unsatisfied with the result, Lindsay Wallace and Kent Millsaps of Human Resources in Raleigh performed another full investigation with the identical result.

16. Petitioner believed that Ms. Lovill and Ms. Gulledge had retaliated against her by creating tension between her coworkers and herself during the interview process of the investigation, as well as by a perceived lack of objectivity on their part. Petitioner also believed she was retaliated against by supervisors pointing fingers at her. Petitioner stated that management had no plan to keep her safe at the workplace, and that moving to a different office would not solve the problem.

17. Management took no adverse employment action against Petitioner. Petitioner failed to return to work after March 17, 2006 and exhausted all accrued leave and FMLA leave. She incurred medical bills from seeking treatment for stress, and exhausted all insurance benefits as well. Because Petitioner left her position on March 17, 2006, she did not take the test to become a Rehabilitation Counselor II, scheduled for March 30, 2006. On March 30, 2006, Petitioner called in to say that she would not be coming in for a while. Management later received a note that she would not be back for six weeks.

18. Donna Lovill is the Unit Manager of the Independent Living section of VR/IL and is Petitioner’s immediate supervisor. She testified that on March 9, 2006 Petitioner came to her and said she wanted to let Lovill know before she heard it somewhere else, that she (Petitioner) had “slapped the shit out of Henry” because he had touched her breast. Petitioner seemed upset but never afraid. Petitioner never expressed to Ms. Lovill that she feared for her safety. Petitioner asked Ms. Lovill for a meeting with Mr. Mogotu and Lovill, which Ms. Lovill declined to arrange. When Ms. Lovill asked Petitioner to demonstrate what had happened, Petitioner seemed to indicate Mogotu had stumbled into her.

19. During the investigation conducted by Ms. Lovill and Ms. Gulledge, which took approximately one week, Petitioner was in and out of Ms. Lovill’s office with questions and names of new witnesses to interview. Ms. Lovill believed that Petitioner was putting Ms. Lovill and Ms. Gulledge “at odds with one another,” and creating confusion by focusing on comments allegedly made by Mr. Mogotu to others at times past that had never been mentioned previously. At the conclusion of the investigation, the allegation was unsubstantiated, but a recommendation was made for the entire unit to undergo sexual harassment training.

20. Georgia Gulledge, Unit Manager of Vocational Rehabilitation, testified that she was made aware of the incident between Petitioner and Mr. Mogotu on the day it occurred and determined then to report it to central management in Raleigh. Ms. Gulledge participated with Ms. Lovill in the investigation of the incident and interviews with witnesses over the following ten days. Ms. Gulledge testified that Petitioner told her during the investigation that she (Petitioner) was not going to move or was not going to come down the hall a different way so as to avoid Mr. Mogotu. Petitioner stated that she was not changing her ways.

21. On March 17, 2006 Ms. Lovill and Mr. Gulledge met with Petitioner in Ms. Lovill’s office. According to Ms. Gulledge, Petitioner stated that she believed Ms. Gulledge could not be impartial because the case was all about adultery. Ms. Gulledge became upset, pointed her finger at Petitioner, and asked if Petitioner was accusing her of committing adultery. Ms. Lovill restored the meeting to order.

22. Petitioner called as witness the individuals whose names she had provided to Ms. Lovill and Ms. Gulledge. Kimberly Nesbitt testified that she had left employment at VR in February of 2005. Mr. Mogotu had made suggestive comments to Nesbitt, which she had brushed off without reporting them. She had also received suggestive e-mails from Mr. Mogotu but had never reported them to management while employed. Ms. Nesbitt testified that she brushed Mogotu’s comments off and that she had handled it.

23. Vivian Murphy testified that she was a co-worker and friends with Petitioner. She stated she had conversations with Mr. Mogotu that were suggestive and inappropriate, but she did not report them to management when they occurred, and felt she had addressed them with Mr. Mogotu. Ms. Murphy gave a statement during the investigation.