STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF PITT 02 OSP 0274

JAMES EARL RAY ARTIS,
Petitioner,
v.
EAST CAROLINA UNIVERSITY,
Respondent. / )
)
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)
)
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) / DECISION

This matter came on for hearing before Administrative Law Judge Beecher R. Gray, in Greenville, N.C., on August 28-29, 2002, and at a continued setting in Ayden, N.C. on June 26, 2003. Petitioner was represented by Kelton T. Brown, and Respondent East Carolina University (ECU) was represented by then Assistant Attorney General Kathleen S. Edwards on August 28-29, 2002, and by Anne J. Brown, Assistant Attorney General on June 26, 2003. Respondent’s Proposed Recommended Decision was filed on July 10, 2004 and was received by the undersigned on February 23, 2004.

ISSUE

Was there just cause to dismiss the Petitioner?

STATUTES AND RULES IN ISSUE

Chapter 126 of the N.C. General Statutes and the rules, regulations, and case law construing it.

WITNESSES

Petitioner testified and presented the following witnesses: Patricia Wichard, Albert Staton, and William Willoughby, who are housekeepers at ECU (T 94-102).

Respondent presented the following witnesses: Gwen Carter, Employee Relations Specialist, ECU Human Resources Department, (T Volume I, hereinafter “Vol. I” p 33-87), Jesse Daniels, Supervisor I, Housekeeping Department at ECU, (T Vol. I p 95-198), Terry Williams, Housekeeper Supervisor, ECU, (T Vol. I p 201-206), Richard Highsmith, Night Academic Supervisor III, Housekeeping Department, ECU (T Vol. I p 208-262), Charles Don Gregory, Jr., Patrol Lieutenant, ECU Campus Police Department, (T Vol. I p 263-272), Kenn Chavis, Director of Housekeeping Services at ECU. (T Vol. II p 304-442).

FINDINGS OF FACT

1. Respondent's stated basis for dismissing Petitioner was unacceptable personal conduct. (See Resp. Hearing Ex. 1 hereinafter, “R. Ex. 1") Specifically, the dismissal letter stated that after being told to clean a sink with a “pumice bar” on the evening of October 16, 2001, Petitioner chose not to clean the sink that night as instructed. (R. Ex. 1) Second, Petitioner was observed on several occasions to be taking unauthorized smoking breaks after taking out the trash. (R. Ex. 1) Petitioner was told by his immediate supervisor, Jesse Daniels, to stop taking unauthorized smoke breaks during work time. (R. Ex. 1) Petitioner testified that his supervisor Mr. Daniels told him, “You-all is (sic) no longer allowed to smoke while you’re taking the trash out.” (T. Vol. II, p 487) In a meeting on October 17, 2001, the Director of Housekeeping Services, Kenn Chavis, the Assistant Director of Housekeeping Services, Chris Etheridge, the Supervisor II, Richard Highsmith, and Jesse Daniels all talked with Petitioner again, and told him that standing at the dumpster for a length of time was an unauthorized break and it shouldn’t be done. (R Ex 1; T Vol. I p 135-136) The supervisors told Petitioner that if the unauthorized smoke breaks continued, that it could lead up to disciplinary action and it could lead up to dismissal. (T Vol. I p 136-137) Petitioner continued to take unauthorized smoke breaks at the dumpster even after this warning. (T Vol. I p 136) Petitioner admitted that after the meeting of October 17, 2001, he went back to his usual course of smoking because he thought it wasn’t right that he not be allowed to do it when others were smoking while taking trash out. (T Vol. II p 499) Petitioner also indicated to Ms. Gwen Carter, Employee Relations Specialist, that he didn’t accept Mr. Daniels’ directive about smoking because he hadn’t been given the directive by an upline supervisor. (T Vol. I p 64)

2. Petitioner did not complete the cleaning of his janitor’s closet sink as instructed by his supervisor Mr. Daniels. (T Vol. I p 127-129; Vol. II p 484-485) Petitioner testified that “the sink did need cleaning out.” (T Vol. II p 480) Petitioner testified that the pumice bar “got to [him.]” (T Vol. II p 480), and that time had run out in his work schedule. (T Vol. II p 485) Petitioner testified that he cleaned the sink the next day. (T Vol. II p 486)

3. Respondent's evidence was that Petitioner had been counseled and warned on a number of occasions for failure to follow established work rules, and for unacceptable personal conduct. (T Vol. I p 39; R Ex.9,11,12,14,15,16) Prior to his dismissal, Petitioner had received a two-week suspension without pay from work for unacceptable personal conduct, including reporting to work under the influence of alcohol, the use of obscenities in the presence of co-workers and making inappropriate comments about a co-worker to others. (T Vol. I p 57; R Ex. 22)

CONCLUSIONS OF LAW

Jurisdiction

1. The State Personnel Act, Chapter 126 of the N.C. General Statutes, authorizes career State employees to challenge employment actions before the Office of Administrative Hearings and the State Personnel Commission. See generally N.C.G.S. §§ 126-1 through 126-90 (1999) (amended 2000). To challenge the just cause of a dismissal, the employee must first follow the employing agency's internal grievance procedure, and then file a petition within thirty days of the end of that procedure. N.C.G.S. §§ 126-34 (1999) (grievants not alleging discrimination or harassment must "follow the grievance procedure established by the employee's department or agency"), 126-35(a) (1999)(appeals must be filed within 30 days of the agency decision).

2. When Petitioner was dismissed on October 31, 2001,he had more than five years of employment in a permanent position, and thus was a "career State employee." N.C.G.S. § 126-1.1 (1999).

3. By motion filed March 26, 2002, Respondent moved to dismiss Petitioner’s petition on jurisdictional grounds, arguing that the petition failed to allege the legal or factual basis for any claim, failed to allege any procedural irregularities in his grievance proceedings, or facts in support of any such irregularities, and that Respondent was entitled to Sovereign Immunity. Respondent’s motion was denied by Order of June 18, 2001.

Burden of proof

4. By an amendment that became effective 1 January 2001, the State Personnel Act places the burden of establishing just cause for disciplinary action on the employer. N.C.G.S. § 126-35(d) (2000). That amendment applies to contested cases commenced on or after 1 January 2001. Id. (official commentary). Petitioner's petition was commenced on or after 1 January 2001.

5. Thus, in this contested case, Respondent has the burden of establishing just cause for Petitioner’s dismissal.

Just Cause

6. The North Carolina Administrative Code defines insubordination as "[t]he willful failure or refusal to carry out a reasonable order from an authorized supervisor." 25 N.C. Admin. C. tit. 25, r. 1J.0614(h); see also 25 N.C. Admin. C. tit 25, r. 1I.2304(b)(8) (giving same definition). The Code also makes clear that "[i]nsubordination is considered unacceptable personal conduct for which any level of discipline, including dismissal, may be imposed without prior warning." 25 N.C. Admin. C. tit. 25, r. 1J.0614(h).

7. The Supreme Court also has noted, in an opinion involving insubordination under the State Personnel Act, that "insubordination implies a general course of mutinous disrespectful or contumacious conduct." Employment Security Comm'n v. Lachtman, 305 N.C. 492, 504, 290 S.E.2d 616, 624 (1982) (quoting 67 C.J.S. Officers § 133 (1978)). Webster's Ninth New Collegiate Dictionary (1988) defines "contumacious" as "stubbornly disobedient; rebellious."

8. In other opinions dealing with insubordination under the State Personnel Act, our appellate courts have stated that

[t]he refusal which is the basis of the offense must be a willful refusal, [Lachtman, 305 N.C. at 506, 290 S.E.2d at 624-25], Kandler v. Dep't of Correction, 80 N.C. App. 444, 451, 342 S.E.2d 910, 914 (1986), and the reasonableness of the assignment must be determined in light of the relative circumstances existing at the time of the incident, Lachtman, 305 N.C. at 506, 290 S.E.2d at 624-25, and in light of the employee's reasonable perception of those circumstances. Kandler, 80 N.C. App. at 451, 342 S.E.2d at 914.

Urback v. East Carolina University, 105 N.C. App. 605, 608, 414 S.E.2d 100, 102, disc. rev. denied, 331 N.C. 291, 417 S.E.2d 70 (1992). Accord Souther v. New River Area Mental Health, No. COA99-1092, slip op. at 9-11 (N.C. Ct. App., Feb. 6, 2001), and Mendenhall v. N.C. Dep't of Human Resources, 119 N.C. App. 644, 651, 459 S.E.2d 820, 824 (1995).

9. It was reasonable for the Petitioner’s supervisor Jesse Daniels to instruct Petitioner, as a Housekeeper, to clean the janitor’s sink and to stop taking unauthorized smoking breaks.

10. In the North Carolina appellate opinions where there is an issue of insubordination, the opinions focus on the purportedly insubordinate employee's "reasonable perception of the circumstances." Urback, 105 N.C. App. at 608, 414 S.E.2d at 102; see also Souther v. New River Mental Health, 142 N.C. App. 1, at 9-11; 541 S.E.2d 750 (2001), aff’d. 354 N.C. 209; 552 S.E.2d 162 (2001), and Mendenhall, 119 N.C. App. at 651, 459 S.E.2d at 824, involve immediate threats to an employee's personal health and safety. In Urback, for example, the employee was justified in refusing to participate in asbestos removal, because he "reasonably believed that the exposure to asbestos would cause him serious injury." 105 N.C. App. at 608, 414 S.E.2d at 102. In Mendenhall, a blind social worker refused to provide services to a blind patient who was suffering from AIDS; the social worker's refusal was justified by her "reasonable perception [] that in order to satisfy this directive she would have put her health at risk." 119 N.C. App. at 651-52, 459 S.E.2d at 825. In Souther, the employee refused to provide in-home services to the son of a man she alleged had sexually harassed her; the court found her refusal reasonable because "she did not feel safe in the [] home." Id. at 21

11. By contrast, this Petitioner had no reasonable expectation of any immediate threat to his personal health or safety if he simply cleaned the sink and refrained from taking unauthorized smoking breaks.

12. Petitioner himself acknowledged that the sink was dirty and needed to be cleaned. (T Vol. II p 480) He also acknowledged that in spite of his supervisor’s directive to the contrary, he decided to continue smoking because others were doing it and he felt like it wasn’t right that he couldn’t do it. (T Vol. II pp 490-1; 498-499)

13. In short, there was no legitimate reason for Petitioner to fail to clean the sink and cease unauthorized smoke breaks.

14. In failing to clean the sink and refusing to cease his unauthorized smoke breaks, Petitioner was continuing his "general course of mutinous disrespectful or contumacious conduct," Lachtman, 305 N.C. at 504, 290 S.E.2d at 624 and was insubordinate. Management is not required to operate in a vacuum and was entitled to consider Petitioner’s background of disciplinary action in deciding the appropriate level of discipline.

15. The evidence in the whole record supports the Petitioner’s termination as being for just cause.

DECISION

Respondent’s decision dismissing Petitioner for insubordination based on his general course of mutinous, disrespectful, or contumacious conduct is supported by the evidence and is AFFIRMED.

ORDER

It is hereby ordered that the State Personnel Commission, as the agency making the final decision in this case, serve a copy of that final decision on the Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, NC 27611-7447, in accordance with N.C. Gen Stat. § 150B-36(b).

NOTICE

The agency making the final decision in this case is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a).

The agency is required by N.C. Gen Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties or their attorneys 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 26th day of February, 2004.

______

Beecher R. Gray

Administrative Law Judge