STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF DURHAM 01 OSP 1043

James W. Robbins II, )

Petitioner, )

) DECISION

v. ) by SUMMARY JUDGMENT

)

North Carolina Central University )

Respondent. )

THIS CAUSE comes on for consideration pursuant to Respondent’s Motion for Summary Judgment filed in the Office of Administrative Hearings on February 19, 2002. Both parties have had the opportunity to present matters before the Administrative Law Judge.

After reviewing the record proper including the Respondent’s Motion, and all other items submitted by both the Respondent and the Petitioner, (it is noted that Respondent submitted Affidavits in support of their motion), the Undersigned hereby makes the following ruling based on the standards of review for Motions for Summary Judgment.

Summary Judgment-Standard of Review

Summary judgment is designed to eliminate formal trials where only questions of law are involved. Summary judgment should be used cautiously, with due regard to its purposes and a cautious observance of its requirements. See Brown v. Greene, 98 N.C.App. 377, 390 S.E.2d 695 (1990). The standard of review 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). The burden of establishing a lack of any legally triable issue resides with the movant. See Pembee Mfg. Corp. v. Cape Fear Constr. Co. 313 N.C. 488, 329 S.E.2d 350 (1985

As observed in Nelson v. Ferris, 136 F. Supp. 2d 703, 712 (E.D. Mich. 2001), “[t]hree 1986 United States Supreme Court cases -- Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) -- ushered in a ‘new era’ in the standards of review for a summary judgment motion. These cases, in the aggregate, lowered the movant’s burden on a summary judgment motion.” Summary judgment is proper “if the pleadings, depositions, answer to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that [the moving] party is entitled to a judgment as a matter of law.” Rule 56(c), N.C.G.S. § 1A-1.

PROCEDURAL FINDINGS

1. A Petition for Contested Case Hearing in the above-captioned matter was filed in the Office of Administrative Hearings on June 8, 2001. The parties filed several preliminary motions and responses thereafter. The Undersigned heard oral arguments on Respondent’s motion to compel discovery and for sanctions in Raleigh on December 12, 2001. Those preliminary matters have now been ruled on; and discovery was completed in early January 2002.

2. Respondent’s motion for summary judgment and dismissal were filed on February 19, 2002. Respondent’s motion was supported by the affidavit of Dr. Virginia Politano and by various attachments to said affidavit. Respondent also attached, to the motion, its Requests for Admissions, which had been served on Petitioner on August 10, 2001, and had never been answered by Petitioner as of February 19, 2002, the date of filing of the motion for summary judgment.

3. Petitioner informally requested an extension of time for responding to this motion; and, by Order entered on March 1, that request was granted, giving Petitioner until March 4, 2002, to respond to NCCU’s motion for summary judgment.

4. Petitioner filed and served his responses on or about March 4 and 5, 2002. Petitioner’s responses contained no affidavits opposing the facts set out in the affidavit of Dr. Politano, with its exhibits; and Petitioner also submitted no documentary evidence relative to his employment at North Carolina Central University generated during his employment.

5. Petitioner filed a short affidavit explaining that, at the present time, he “does have legal council” and that Petitioner had not earlier answered Respondent’s Requests for Admissions because “he thought that he would have an attorney to answer for him” and “he was under the impression that he had answered the questions that Respondent needed to know” when he responded to Respondent’s other discovery requests. Petitioner’s earliest responses to Respondent’s other discovery requests, consisting of Interrogatories and Requests for Production, were dated October 8, 2001.

6. Along with his affidavit, Petitioner again served copies of the discovery responses he had made on October 8, 2001. He also attached a document captioned “Petitioner’s Answers to Requests for Admissions” dated February 28, 2002, indicating he was “submitting [those] answers” to the Requests for Admissions “[a]fter receiving legal council on February 27, 2002.” There is no indication that these responses to the Requests for Admissions were served on Respondent’s counsel until March 2002, nor did Petitioner make any request to this forum with respect to his service of the belated responses to the Requests for Admissions.

7. On March 6, 2002, Respondent filed and served its Reply to Petitioner’s responses to the motion for summary judgment. On March 7, the Undersigned conducted a telephone conference call with the parties, in order to verify with Petitioner that he had prepared his responses to the summary judgment motion with the advice of counsel, as he had already stated in writing. During that conference call, Petitioner once again confirmed he had received recommendations, from an attorney named Douglas Simons, when preparing the contents of his responses to Respondent’s motion for summary judgment and dismissal.

STATUTES AND RULES INVOLVED

Chapters 126 and 150B of the North Carolina General Statutes;

Rules 36 and 56 of the North Carolina Rules of Civil Procedure.

BASED UPON the record, the Undersigned makes the following:

FINDINGS OF FACTS

1. There exists no legal basis to excuse Petitioner’s failure to timely respond to NCCU’s Requests for Admissions under Rule 36 of the North Carolina Rules of Civil Procedure. In addition, nothing in his responses shows that Petitioner ever made a proper motion or directed a request to withdraw or amend his prior admissions even with advice and counsel of an attorney. Therefore, nothing in Petitioner’s responses can avoid application of the “deemed admitted” provisions in Rule 36.

2. Respondent served its Requests for Admissions on August 10, 2001; and Petitioner has not disputed his timely receipt of those discovery requests. By law pursuant to Rule 36(a), “[t]he matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter....” Discovery responses served by Petitioner on Respondent’s counsel on October 8, 2001 or on March 5, 2002 are insufficient as a matter of law to contradict the responses by Petitioner that must be deemed to have been admitted by operation of Rules 36(a) and (b).

3. The following admissions became conclusively established and constitute a valid basis for summary judgment in this case:

a. Petitioner did not comply with Dr. Politano’s instructions concerning signing in and out for his lunch breaks (Request for Admissions #3, as shown on Ex. A attached to Respondent’s summary judgment brief) and when arriving at work in the morning and leaving for the day (Request for Admissions #4);

b. He did not always comply with Dr. Politano’s instructions concerning calling in when he knew he would be late or absent (Requests for Admissions #5 and #22), which resulted in Petitioner’s job responsibilities being performed by other workers, especially during the period from August 1 to December 1, 2000, whenever Petitioner was not present on campus (Request for Admissions #19).

c. He did not comply with Dr. Politano’s instructions concerning turning in accurate time sheets at the end of each month (Requests for Admissions # 6 and #7);

d. He did not comply with Dr. Politano’s instructions concerning keeping his work area clean and uncluttered (Request for Admissions #8);

e. He did not comply with Dr. Politano’s instructions requiring him to remain available at his workstation during peak hours (Requests for Admissions #10 and #11) and requiring him to be available to supervise and lock the locker rooms during these peak hours (Request for Admissions #14);

f. He did not comply with Dr. Politano’s instructions that he not take longer than an hour for lunch (Request for Admissions #12);

g. He did not comply with Dr. Politano’s instructions that he post his work hours (Request for Admissions #13);

h. Dr. Politano had to request a doctor’s excuse from Petitioner more than once before he provided a deficient note from Dr. Peter Adland dated September 26, 2000 (Request for Admissions #15); and

i. Dr. Politano met with Petitioner on a number of occasions, when he did not do what was asked of him, and reminded him that he needed to do those things that she had requested of him (Request for Admissions #16); and Dr. Politano warned him, in advance and in writing, that his failure to follow her instructions as to his job conduct could result in disciplinary action based on insubordination (Request for Admissions #18 and letters to Petitioner attached to Dr. Politano’s affidavit).

4. Under the recent case law discussing Rule 36 in North Carolina, the outcome in this case does not depend on whether Petitioner represented himself or acted with the advice of an attorney. Our Supreme Court’s holding, in the context of Rule 36, that “the [North Carolina Rules of Civil Procedure] must be applied equally to all parties to a lawsuit, without regard to whether they are represented by counsel” has recently been cited with approval by the Court of Appeals. Shwe v. Jaber, No. COA00-1356, 2001 N.C. App. LEXIS 1066, *7 (2001) (citing Goins v. Puleo, 350 N.C. 277, 281, 512 S.E.2d 748, 751 (1999)). As further explained in Schwe, “the Rules of Civil Procedure promote the orderly and uniform administration of justice, and all litigants are entitled to rely on them.” Id. (citing 350 N.C. at 281, 512 S.E.2d at 751 (emphasis added)). See also Town of Chapel Hill v. Burchette, 100 N.C. App. 157, 162, 394 S.E.2d 698, 701 (1990) (Rule 36 “means ‘precisely what it says’”). However, because Petitioner has stated he did have legal representation when preparing his responses to the motion for summary judgment and said attorney would be familiar with the statutory and case law requirements regarding admissions, the Undersigned is further compelled in the application of Rule 36 to Petitioner.

5. Based on his deemed admissions, Petitioner cannot establish the essential elements of his claim that his dismissal from the University was not based on just cause and by law there exists no genuine issues of material fact as to Petitioner’s dismissal.

BASED ON the foregoing findings of fact, the undersigned Administrative Law Judge makes the following

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case pursuant to Chapter 126 of the North Carolina General Statutes.

2. At the time of his dismissal, Petitioner was a permanent State employee subject to the State Personnel Act. N.C.G.S. § 126-35 provides, in relevant part, that a career State employee may only be discharged for “just cause”.

3. The phrase "just cause" is not defined in the statute; its meaning has been discussed in our case law. The North Carolina Court of Appeals has stated that the words "just cause" in the context of Chapter 126 are to be given their ordinary meaning. See, e.g., Wiggins v. N.C. Dep’t of Human Res., 105 N.C. App. 302, 306, 413 S.E.2d 3, 5 (1992) (citation omitted). In Webster's New International Dictionary, "cause" is defined as a "good or adequate reason," and "just" as "reasonable" or "having a basis in fact." See Webster's New International Dictionary 356, 1228 (3d ed. 1968); Amanini v. N.C. Dep’t of Human Res., 114 N.C. App. 668, 678, 443 S.E.2d 114, 120 (1994).

4. Section 1J.0604(b) of Title 25 of the North Carolina Administrative Code establishes two bases for just cause dismissal under N.C.G.S. § 126-35, including: “. . . (2) Discipline or dismissal imposed on the basis of unacceptable personal conduct.” Respondent’s designation of Petitioner’s dismissal as being for “personal misconduct” places him within this category, provided that the designation is proper.

5. Discipline may be imposed as a result of unacceptable personal conduct, up to and including dismissal, without any prior disciplinary action. 25 NCAC 1J.0608. Section 1J.0614(i) defines unacceptable personal conduct to include “(1) conduct for which no reasonable person should expect to receive prior warning; or (4) the willful violation of known or written work rules; or (5) conduct unbecoming a state employee that is detrimental to state service,” inter alia.

6. Substantial credible evidence in this case as deemed admitted by operation of law and as cited in the foregoing Findings of Fact, supports Respondent’s decision to dismiss this Petitioner for unacceptable personal conduct the grounds set out in section 1J.0614(i). Further, case precedent defines Petitioner’s actions as personal misconduct. See, e.g., Amanani v. N.C. Dep’t of Human Res., 114 N.C. App. at 679, 443 S.E.2d at 121 (citing State Personnel Manual examples of personal (mis)conduct).