STATE OF NORTH CAROLINAIN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF SAMPSON 06 OSP 1145

Alonzo Vann, )

Petitioner,)

)

vs)DECISION

)

N.C. Dept. of Transportation,)

Respondent.)

This matter came on to be heard and was heard before the Honorable Judge Beryl Wade, an Administrative Law Judge, on November 14 & 15, 2006 in Court Room 3 of the Old Cumberland County Courthouse, FayettevilleNorth Carolina.

APPEARANCES

For Petitioner:Ralph T. Bryant, Jr.

Ralph T. Bryant, Jr., P.A.

P.O. Box C

Greenville, N.C.27835

For Respondent:Tina A. Krasner

Ebony Pittman

Asst. Attorney General

N.C. Department of Transportation

1505 MailServiceCenter

Raleigh, N.C.27699-1505

ISSUES

a. DidRespondent meet its burden to show just cause to dismiss the Petitioner under N.C.G.S. 126-35.

b. Did Respondent intentionally discriminate against Petitioner due to his race (African American).

c. DidPetitioner meet his burden to show he was dismissed in retaliation for engaging in the protected activity of complaining of discrimination in the work place in violation of N.C. Gen. Stat. § 126-34.1(a)(3).

WITNESSES

For the Respondent: L.E. Reynolds, Karen Fussell, Alton Thornton, Lloyd Royal, Robert Butler, Patty Cone, Carrie Holland, Dustin Smith, Shannon Baylor, John Devone.

For the Petitioner: Victor Birtch, Alonzo Vann, Stevie Williams, John Daw.

EXHIBITS ADMITTED INTO EVIDENCE

Respondent’s Exhibits:

1. Investigatory Leave With Pay Memorandum to Petitioner dated May 17, 2004

2. Written Warning to Petitioner dated July 26, 2004

3. Notice of Pre-Disciplinary Conference to Petitioner dated February 23, 2005

4. Written Warning to Petitioner dated March 1, 2005 Documented Counseling to Petitioner

dated March 11, 2005

5. Addendum to Performance Management Work Plan Memo to Petitioner dated April 12,

2005

6. Notice of Pre-Disciplinary Conference to Petitioner dated May 15, 2005

7. Lloyd Royal Statement dated May 12, 2005

8. Investigatory Placement with Pay Letter to Petitioner dated May 13, 2005

9. Notice of Pre-Disciplinary Conference to Petitioner dated May 16, 2005

10. Dismissal Letter to Petitioner dated May 24, 2005

11. North Carolina Department of Transportation Workplace Violence Policy

12. North Carolina Department of Transportation Violence in the Workplace Policy Statement (signed and dated 719/01)

13. Unlawful Workplace Harassment Policy Statement (signed and dated 7/9/01)

15. Unlawful Workplace Harassment Policy Statement (signed and dated 6/25/03)

17. Written Warning to Steve Daw dated March 1, 2005

19. Employee Skill Block Inventory Sheet.

Petitioner’s. Exhibits:

1. April 24, 2003 rating

2. April 15, 2004 rating

3. January 26th 2005 notes from the Jan. 24th 2005 meeting

5. January 27, 2005 notes from the January 27 meeting

6. December 14, 2004 letter to EEOC

7. February 7, 2005 at EEOC charge

8. January 24, 2004 notes from Petitioner.

9. February 25, 2005 note from Petitioner

10. March 3, 2005 response to written warning from Petitioner

11. May 20, 2005 response to pre disciplinary conference

12. Undated note from Petitioner to EEOC

13. June 7, 2005 letter to Marcia Williams from Petitioner

14. February 25, 2005 letter from Bickham to Pope.

15. Letter to Herb Henderson from EEOC

16. December 14, 2004 letter to EEOC

17. March 17, 2005 EEOC charge

18. March 21, 2005 letter to EEOC from Philip Bickham

19. June 7, 2006 right to sue letter

20. Certified true copy of court proceeding

21. Petitioner's father's medical documentation.

22. July 23, 2004 workability evaluation

23. December 14 2004 workability evaluation

24. E-mails from Bickham to Reynolds

Based upon careful consideration of the testimony and evidence presented at the hearing, documents and exhibits received into evidence, and the entire record of this proceeding, the undersigned makes the following:

FINDINGS OF FACT

  1. On February 16 2002 Petitioner Alonzo Vann became a permanent employee of the Department of Transportation as a Transportation Worker. Petitioner worked in ClintonN.C., SampsonCounty unit.
  2. The Petitioner received a work performance rating of very good in April 2003. The Petitioner received a work performance rating of very good in April 2004. These work performance ratings are next to the highest rating that can be received by a state employee. (Pet. Exh. 1 & 2).
  3. Or about December 14, 2004, the Petitioner sent a letter to the Equal Employment Opportunity Commission requesting "an investigation into the discriminatory actions that have been shown toward me during the past five months of my employment." (Pet. Ex. 6)(T. p. 375-376)..
  4. In the December 14, 2004 letter, Petitioner essentially complains that Mr. L. E. Reynolds has refused to return him to full duty despite a medical release from his position and that he has not received compensation for at least five skill blocks that he has completed. (Pet. Exh. 6).
  5. On December 22, 2004 the Petitioner forwarded his December 14, 2004 letter to Patti Cone. Ms. Cone was the Employee Relations Representative with the Employee Relations Section of the Department of Transportation, and was located at the Division III office in Wilmington,North Carolina. She was responsible for SampsonCounty. (Cone affidavit).
  6. On January 3, 2005, Patti Cone discussed Petitioner’s December 14, 2004 letter to the EEOC, with Mr. L.E. Reynolds, the Sampson County Maintenance Engineer. She specifically informed him that she would be making arrangements to meet with Mr. Vann to discuss the EEOC charges. (Cone Affidavit).
  7. Before Ms. Cone could set up a meeting with the Petitioner, Mr. L.E. Reynolds and his supervisor Karen Fussell, the District Engineer, requested that Ms. Cone meet with Mr. Vann’s supervisors to solicit any complaints they may have had against Mr. Vann. (Cone Affidavit).
  8. The purpose of the meeting with the Petitioner’s supervisors was to solicit complaints against Mr. Vann. Patti Cone admits that she "met with the supervisors and the unit to discuss problems and concerns they have experienced with Alonzo Vann since he was first hired…”. (Pet. Exh. 3: 1/26/05 letter from Cone to Reynolds) (Affidavit of Patti Cone, Respondents Exhibit 24).
  9. On January 24 2005 Patti Cone met with the following persons who had supervised Mr. Vann, at some point during his employment with the Department of Transportation; Dale Underwood, Harry Vann, Henry Rich, Ray Smith, Rex Cashwell, Alton Thornton, Mark McMichael. The supervisors were specifically asked to discuss any problems they have had with Mr. Vann at any time during his employment with the Department of Transportation. (T.p. 709).
  10. After meeting with the supervisors on January 24, 2005, Patti Cone met with Mr. Vann on that same day, and told Mr. Vann about the discussion she had with the supervisors regarding any issues or problems that they had with Mr. Vann since he first began working for the Department of Transportation. Mr. Vann was surprised by the fact that a meeting had occurred to discuss issues involving his employment with his previous supervisors and he was surprised by the comments made by the supervisors since none of the supervisors had ever discussed concerns or issues with Mr. Vann. Mr. Vann requested to meet with each of the supervisors face to face to address any concerns or issues they raised with Ms. Cone.
  11. During Ms. Cone's meeting with Mr. Vann, he expressed a number of concerns regarding the way in which the African-American employees were treated at the Sampson County Division. Ms. Cone admitted that, "it does appear that he is attempting to draw attention to what he considers mistreatment of African-Americans in the work unit.” (Pet. Exh. 3).
  12. On January 25, 2005, Mr. Vann performed his regular duties as a transportation worker, which included supervising inmates performing roadwork. (T.P. 596)
  13. On January 26, 2005, Mr. Henry Rich and Mr. Alton Thornton took one of the inmates, Stevie Williams, away from the work site and questioned him extensively regarding the work that Mr. Vann had performed on the previous day. The inmate thought the questioning was unusual because it had never happened before and therefore he advised Mr. Vann of the conversation. (T.P. 596-602).
  14. On January 27, 2005 Karen Fussell held a meeting with L.E. Reynolds, Alonzo Vann and all of his past and present supervisors. The purpose of the meeting was to give Mr. Vann an opportunity to hear and discuss the issues raised by the supervisors during the January 24 meeting with Ms. Cone, when Mr. Vann was not present.
  15. During the meeting, a number of issues were raised regarding the treatment of African-American employees in the work unit. At the end of the meeting Mr. Vann, Mr. Reynolds and Ms. Karen Fussell had a meeting among themselves to discuss what had transpired. During that conversation Mr. Vann indicated to Karen Fussell that a number of the African-American employees had come to him with these issues and he was raising these issues on their behalf because they were scared to speak up due to fear of retaliation. Karen Fussell then replied:

I asked him how far he had gotten being the spokesman for a group of men that turned their backs on him when the chips were down. Did he do them any good? Did he do himself any good? He just looked at me. He was how this may look like he was keeping things stirred up and how he was contributing to disharmony in the workplace. Lynn Reynolds told Alonzo that from now on if he wanted to get in groups and talk about the state he was to do that on his own time and off state property. This included talking to Robert Butler (African-American) in the district office during work hours. (Pet. Exh. 5).

  1. During this same conversation with Mr. Vann, Karen Fussell told him he was “no Martin Luther King”, referring to Mr. Vann’s efforts to bring attention to the mistreatment of African American employees in the work place.( T.p. 396).
  2. On February 7, 2005 Mr. Vann filed a formal charge of discrimination against the Department of Transportation with the Equal Employment Opportunity Commission. (Pet. Exh. 7).
  3. By February 18, 2005 Mr. Philip Bickham, had been notified by the EEOC that Mr. Vann had filed a formal charge of discrimination against the Department of Transportation. Mr. Philip Bickham is the Equal Employment Opportunity officer for the Department of Transportation. On February 18, 2005, Mr. Bickham sent a letter to Allen Pope, the Division III district engineer, notifying the district office that Mr. Vann had filed a complaint of discrimination. That same letter was subsequently sent on February 25, 2005 to the District III office. (Pet. Exh. 24--emails from Phillip Bickham that were provided to the Petitioner’s counsel after the hearing.)
  4. On February 21, 2005 the Petitioner and his coworker Steve Daw were working the flatbed truck. Employees assigned to work the flatbed truck performed various duties such as picking up tires, picking up bags of trash that the inmates had bagged, and repairing potholes. On February 21, 2005 the Petitioner and his coworker, Steve Daw, performed these duties as they had generally been performed throughout the course of their employment and in conformity with the general performance of these duties by other employees who operated the flatbed truck. On February 21, 2005, Steve Daw was the driver of the flatbed truck and therefore made decisions as to which duties Petitioner and Mr. Daw would complete. Because of the 14 years experience he had as opposed to Mr. Vann’s four years of experience, Steve Daw acted as the supervisor when Petitioner and Mr. Daw worked together on the flatbed.(T.p. 602-624).
  5. Normally, employees working the flatbed truck were not giving any specific assignments to be completed in any specific order. Instead, the employees were given a number of assignments including picking up trash, picking up tires, and repairing potholes, which the employees had the discretion to decide in when and in what order these assignments would be completed. The person responsible for making those decisions was the flatbed truck driver. On February 21, 2005 Steve Daw was the flatbed truck driver and made the decision as to which assignment to complete in the same manner he it made the decisions on numerous previous occasions prior to the filing of the EEOC complaint by Mr. Vann. On that day Mr. Daw determined that certain potholes could not be repaired due to the significant amount of rain that had experienced that day. (T.p. 602-652).
  6. On February 25, 2005, the Petitioner was issued a notice of pre-disciplinary conference by L. E. Reynolds. The notice stated that on February 25, 2005 a pre-disciplinary conference would be held to allow the Petitioner an opportunity to respond to the recommendation that he be dismissed for unacceptable personal conduct and unsatisfactory job performance. The notice of pre-disciplinary conference alleged that on February 21, 2005 Mr. Vann failed to complete the work that he was assigned to complete on that day. It also alleged that Mr. Vann ate lunch at a restaurant that was not within the area of his work assignment. (T.p. 602-652).
  7. On March 1, 2005 Mr. Vann was issued a written warning alleging unacceptable personal conduct and unsatisfactory job performance. The written warning states the facts upon which the Respondent relied in issuing the written warning. The Respondent’s allegation of unacceptable personal conduct is not supported by the facts stated in the written warning. At most, the written warning describes unsatisfactory job performance by the failure to complete assigned tasks. The purpose for including the frivolous allegation of unacceptable personal conduct was to support the Respondent’s attempt to dismiss the Petitioner without having to follow the procedures required by the State personnel act to dismiss an employee for unacceptable job performance.
  8. In the March 1 2005 written warning, Respondent states that the Petitioner specifically alleged during the pre-disciplinary conference that Mr. L. E. Reynolds was bringing up phony charges against him due to his filing of the EEOC charge. Petitioner also alleged that his job performance had never been in question until he filed a complaint with the EEOC alleging discrimination. In response to Petitioner’s allegations that the EEOC charges were the basis for the written warning, Karen Fussell states in the written warning that "we have no knowledge of any charge you may have filed." (Resp. Ex. 4).
  9. I find the statement in the March 1, 2005 written warning that the Department of Transportation had "no knowledge of any charge" that Mr. Vann may have filed with the EEOC, is an intentional false statement. The Human Resources Department of the Department of Transportation was aware in December 2004 of the 12/14/04 letter to the EEOC. Moreover, Patti Cone admits to advising Mr. L.E. Reynolds as early as January 3, 2005 that Mr. Vann had filed an EEOC charge. Further, the Department of Transportation was on notice of the EEOC charge at least as of February 18, 2005, as documented by Mr. Philip Bickham's e-mail to L.E. Reynolds. Furthermore, in the conversation that Karen Fussell had with Mr. Vann on January 27, 2005 she specifically advised him that his conduct as an advocate for the African-American employees in his work unit may seem as if he is contributing to disharmony in the workplace. Moreover, the March 1, 2005 written warning was copied to the division engineer Mr. Pope, and the human resources director, Mr. Henderson, both of whom were specifically on notice prior to the issuance of the March 1, 2005 written warning that Mr. Vann had filed an EEOC charge.
  10. The March 1, 2005 written warning was issued for retaliatory reasons. Although the Respondent also gave a written warning to Mr. Steve Daw, the sole purpose of issuing the written warning to Mr. Steve Daw was an attempt to justify issuing the written warning to Mr. Vann for retaliatory reasons. Particularly, Mr. Daw had worked for the Department of Transportation for over 14 years and had never received a written warning for his conduct or his work performance during that time. Mr. Daw had conducted himself on February 21 2005 just as he had conducted himself during the previous 14 years of his employment.
  11. During his pre-disciplinary conference, Mr. Daw spoke with both Patti Cone and Alan Thornton. During the pre-disciplinary conference Alan Thornton admitted that he should not have suggested disciplinary action against Mr. Daw under the circumstances. Moreover, Mr. Daw advised Patti Cone and Alan Thornton during the pre-disciplinary conference that he made the decision as to what work would be performed February 21, 2005 because he was driving the truck on that day and he was acting as the supervisor. Finally, Mr. Daw believes that the only reason he got the written warning was because the Respondent was using him as an excuse to discipline Mr. Vann for retaliatory reasons. I find Mr. Daw's testimony to be credible. (T.P. 602-694).
  12. Unbeknownst to Mr. Vann, Mr. Phillip Bickham was assigned the tasks of responding to Mr. Vann’s EEOC complaint. (Pet. Exh. 18). Mr. Bickham had been calling Mr. Vann and leaving messages at work for Mr. Vann to call him back to discuss the EEOC complaint. Petitioner thought that Mr. Bickham was investigating the charge and did not know that Bickham was refuting his charge of discrimination with the EEOC. Bickham requested and received an extension of time through March 29, 2005 to file a response with EEOC to the Petitioner’s first charge of discrimination. (Pet. Exh. 18).
  13. On March 17, 2005 the Petitioner filed a second EEOC charge alleging retaliation in violation of title VII of the Civil Rights Act of 1964, as amended. (Pet. Exh. 17).
  14. There were various e-mail correspondences between Mr. L.E. Reynolds and Mr. Philip Bickham during March and April 2005. E-mail correspondence from April 4 and April 11 reflect specific discussions between the L.E. Reynolds and Philip Bickham as they worked together to file a response on behalf of the Department of Transportation to Mr. Vann’s EEOC charge. (Pet. Exh. 24).
  15. On April 12, 2005 the Petitioner received a work performance rating of below good, which is next to the lowest rating that a state employee can receive. (Respondent's Exhibit 6).
  16. On May 5, 2005 the Petitioner was working with the shoulder crew on NC 55 operating a front-end loader. At approximately 11:45 a.m. the Petitioner drove the front-end-loader off of the road for purposes of beginning the process of preparing for the lunch break. Petitioner’s actions were consistent with the way the shoulder crew normally prepared for the lunch break. The normal process was for the front-end loader operator to pull the front-end loader off of the road at approximately 11:45 a.m. Then the motor grader operator would push the dirt off of the road. Then the flag crew would leave the area and break for lunch when all the equipment and all of the personnel were off of the road. On May 5, 2005 the Petitioner acted consistent with the normal process and procedures that the shoulder crew used to prepare to go to lunch. The Petitioner did not abandon his equipment at any time.