STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 01 OSP 2196

01 OSP 2197

Thomas E. Bobbitt )

Petitioner, )

)

v. ) DECISION

)

North Carolina State University, )

Respondent )

THIS MATTER came on for contested hearing before the Administrative Law Judge, the Honorable Robert Reilly, Jr., on August 28, 2002. Upon review of the pleadings, the evidence and the arguments of counsel, the undersigned finds the following facts, makes the following conclusions of law, and recommends the following decision:

APPEARANCES

Petitioner: Jonathan F. Koffa

Attorney at Law

Post Office Box 386

Zebulon, North Carolina 27597

Respondent: Joyce Rutledge

Assistant Attorney General

NC Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

ISSUE

Did the dismissal of the Petitioner by the Respondent for allegedly urinating on the floor constitute just cause within the meaning of N.C.G.S. § 126-35?

EXHIBITS

1. Respondent Exhibit 3 Memo from Finch to Joyce

2. Respondent Exhibit 6 Memo from Bell

3. Respondent Exhibit 14 Panel of pictures

4. Respondent Exhibit 15 Memo placing Petitioner on investigatory status

5. Respondent Exhibit 16 Notice of Predisciplinary Conference

6. Respondent Exhibit 17 Memo from Bobbitt to Joyce

7. Respondent Exhibit 18 Memo from Bobbitt to Joyce

8. Respondent Exhibit 19 Notes by Joyce from Predisciplinary Conference

9. Respondent Exhibit 20 Notification of Termination

10. Respondent Exhibit 22 Discipline of Methods

11. Respondent Exhibit 23 Statement of Bowles

12. Respondent Exhibit 24 Incident Notes, 11/5/01

13. Respondent Exhibit 25 Notes of Interview of Bowles by Joyce

14. Respondent Exhibit 26 Notes of Phone Interview of Williams by Joyce and

Statement

15. Respondent Exhibit 27 Notes of In-Person Interview of Williams by Joyce

16. Respondent Exhibit 28 Notes of Interview of Mr. Bell by Joyce

17. Respondent Exhibit 29 Undated letter from Br. Bell

18. Respondent Exhibit 30 Notes of Phone Interview of Ms. Bell by Joyce

19. Respondent Exhibit 31 Statement by Ms. Bell

20. Respondent Exhibit 32 Notes of First Interview of Bobbitt by Joyce

21. Respondent Exhibit 33 Notes of Second Interview of Bobbitt by Joyce

22. Respondent Exhibit 34 Notes by Joyce, re: unannounced visit by Bobbitt

23. Respondent Exhibit 35 Notes of Phone Interview of O’Daniel by Joyce

24. Respondent Exhibit 36 Statement of O’Daniel

25. Respondent Exhibit 37 Statement of O’Daniel

26. Respondent Exhibit 38 Statement of O’Daniel

FINDINGS OF FACT

1. Petitioner has been in the continuous employment of North Carolina State University (“NCSU”) since September 4, 1986 and, as of November 21, 2001 had approximately 182 months of continuous State employment. At the time of the incident underlying his dismissal, Petitioner was employed as a floor maintenance assistant at Reynolds Coliseum, an indoor facility at NCSU.

2. Prior to the incident that led to his dismissal and during his employment at NCSU, the Petitioner filed at least seven EEOC charges and eight internal grievances alleging inter alia workplace harassment, racial discrimination and retaliation.

3. As floor maintenance assistant, the Petitioner was responsible for routine maintenance of the Reynolds Coliseum facility. Whenever a major sporting or entertainment event occurred at Reynolds, NCSU contracted the services of LPSC Cleaning Services, owned and operated by Larry and Peggy Bell, to assist the Petitioner in clean up activities. (T. p. 52-53).

4. Mr. Bell complained in writing on at least one occasion that he and his staff had discomfort …”working around or with Mr. Bobbitt. He frequently complains about the services my company provide (sic) for the University and how I should perform those services.” (T. p 56-58, R. Ex. 6).

5. At the hearing, the Petitioner testified that he frequently had problems with the quality of work done by LPSC Cleaning Service at Reynolds Coliseum.

6. On November 5, 2001, Petitioner reported to work at 4:54 p.m. and performed routine services in anticipation of a basketball game at Reynolds Coliseum that night. He checked the restrooms on the concourse to make sure they had plenty of paper and stock. He then went to eat at approximately 5:45 p.m. and returned to Reynolds and checked the hallways for water leaks or paper on the floor. (T. p. 177).

7. During the women’s basketball game, Petitioner was stationed at the south end goal to sweep the floor and keep it free of debris. (T. p. 178).

8. During the half-time intermission of the women’s basketball game, at approximately 8:30 p.m., Petitioner took a bathroom break. The bathroom was crowded at the time. Petitioner used the urinal, washed his hands and returned to his duty station. His entire bathroom break lasted two minutes.

9. The Petitioner did not take another bathroom break until approximately 1:30-1:40 a.m. on November 6, 2001. At that time, Petitioner proceeded to the bathroom, closed the door, and turned on the lights. He used the commode during this break, which lasted for five minutes. There was no one in the restroom at the time.

10. On November 5, 2001, employees of LPSC Cleaning Services arrived at Reynolds to perform its contract cleaning services after a major event. One member of the crew was Jerry Vonzelle Williams. (T. p 14).

11. On November 6, 2001, Larry Bell of LPSC Cleaning Service reported to Mr. William Boweles, Coliseum Supervisor and Maintenance Coordinator, that one of his employees, Mr. Jerry Williams, observed Petitioner urinating on the floor in the upstairs men’s bathroom. Mr. Bowles had called Mr. Bell to commend him on the good job his crew had done with the coliseum. [1] Mr. Bowles reported the matter to his supervisor, Mr. Barry Joyce, Director of Indoor Athletic Facilities (T. p. 99, R. Ex. 23).

12. Mr. Joyce then consulted with Nora Lynn Finch, Senior Director of Athletics and his supervisor, who was acting in an advisory capacity,[2] and decided to launch an investigation into the matter. He spoke by phone to Mr. Jerry Williams and requested that Mr. Williams write a statement of what he claimed to have witnessed. The statement was verbally edited by Mr. Larry Bell and transmitted by facsimile to Mr. Joyce. (T., R. Ex.).

13. Mr. Williams stated during the telephone interview that he entered the bathroom and the sink was running. He also stated that when he went to turn the sink off, the Petitioner said, “I am using that sink.” Although there were some details that “did not match up,” Mr. Joyce

determined that on details essential to the matter, Mr. Williams’ account of events was credible enough to warrant further investigation. (T. p 118-121).

14. At the hearing, Mr. Williams testified that neither he nor the Petitioner spoke to each other at the time he entered the restroom. Mr. Williams could also not identify the time he witnessed the incident. He was sure it was late. (T. p 18-19).

15. Mr. Williams first reported to Ms. Peggy Bell, employee of LPSC Cleaning Service, that he observed the Petitioner urinating on the floor. Ms. Bell told him to not to worry about it, just clean it and “roll on out.” Ms. Bell did not see the Petitioner in the restroom nor did she see the urine on the floor. (T. p 80-81, R. Ex. 31).

16. On November 9, 2001, Mr. Joyce placed the Petitioner on administrative leave pending the outcome of the investigation. During a brief conversation with Mr. Joyce, the Petitioner denied urinating on the floor. Petitioner described the allegation as a “bunch of..” [expletive omitted]. (T. p 123, R. Ex. 32).

17. On November 12, 2001, Mr. Joyce conducted a more extensive interview with the Petitioner. Petitioner told him that none of the employees of LPSC Cleaning Service saw Petitioner in the restroom on November 5, 2001. Petitioner further stated that he watched television with one Sergeant Tim O’Daniel, part time security guard at Reynolds, on the night in question. Sergeant O’Daniel subsequently denied watching television with Petitioner on November 5, 2001. (T. p. 91-94, 127-128, R. Ex. 35).

18. On November 14, 2001, Mr. Joyce conducted his first personal interview with Mr. Williams. At that time, Mr. Williams demonstrated to Mr. Joyce what he allegedly saw and identified the Petitioner as the person he saw urinating on the floor. (T. p. 177-119, R. Ex. 27).

19. On November 20, 2001, Mr. Joyce conducted a pre-dismissal conference with the Petitioner in keeping with the policy and procedure of NCSU. At that point, Mr. Joyce determined that he had no reason not to believe Mr. Williams’ allegations that he saw the Petitioner urinating on the floor. Mr. Joyce also determined that he could not substantiate the Petitioner’s denial because the Petitioner had provided additional information during each interview that he did not provide during the previous interview. (T. p 125-131, R. Ex. 34, 18).

20. On November 20, 2001, Mr. Joyce terminated the Petitioner from employment for unacceptable personal conduct. (T. p. 131, R. Ex. 20).

CONCLUSIONS OF LAW

1. Petitioner is a “career state employee” within the meaning of N.C.G.S. § 126-1.1 and pursuant to N.C.G.S. § 126-5, is subject to and governed by the provisions of the State Personnel Act, N.C.G.S. 126-1 et. seq.

2. The Office of Administrative Hearings (“OAH”) has jurisdiction over the parties and over Petitioner’s “just cause” claim.

3. As this contested case was filed after January 1, 2001, the Respondent has the burden of proof and must prove by the preponderance of the evidence that it is more likely than not that the Petitioner committed the offense.

4. In reviewing agency action, the Court conducts a hearing de novo to determine whether or not there is sufficient evidence to support the finding that the Petitioner committed the offense.

5. There was only one witness, Mr. Jerry Williams, to the alleged incident and no corroborating witnesses. Mr. Joyce, the deciding officer, testified that he had no reason not to believe the only witness to the alleged incident. Therefore, Mr. Williams incorrectly placed the burden of proof on the Petitioner and not on the Respondent.

6. Mr. Williams presented conflicting testimony to Mr. Joyce at the hearing regarding whether or not he spoke with the Petitioner on November 5, 2001. Mr. Williams’s testimony lacks specific detail as to the time of the occurrence and the lack of corroboration. It is further contradicted by the Petitioner’s specific testimony about his activities on the night of November 5, 2001, including the two times he took a restroom break.

7. The evidence in the case and at the hearing leads to no other conclusion but that it is more likely than not that the Petitioner did not commit the offense.

Based on the foregoing Conclusions of Law, the undersigned makes the following:

DECISION

That the State Personnel Commission grant the Petition and OVERTURN Respondent’s dismissal of Petitioner from State employment as the dismissal action did not constitute just cause with the meaning of N.C.G.S. § 126-35.

NOTICE

Before the agency makes the FINAL DECISION, it is required by N.C.G.S. § 150B-36(a) to give each party an opportunity to file exceptions to this DECISION, and to present written arguments to those in the agency who will make the final decision.

This 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.

This the 21st day of November, 2002.

_______________________________

Robert R. Reilly

Temporary Administrative Law Judge

5

[1] Mr. Bowles testified that he called Mr. Bell to inquire as to whether anything out of the ordinary occurred. However, his written statement shows that he called Mr. Bell to commend him on the good job at Reynolds. (T. p. 99, R. Ex. 23)

[2] Ms. Finch wrote the questions for the phone interview which Mr. Joyce used to question Mr. Williams.