STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WILSON 03 OSP 1670

Sheerlene Artis
Petitioner
vs.
Correction Enterprises
Manpower Services
Respondent / )
))
)
)))) / FINAL DECISION (IN PART)
AND
SUMMARY JUDGMENT (IN PART)

Upon consideration of Respondent’s Motion to Dismiss, and Motion for Summary Judgment, Petitioner’s response thereto, and Respondent’s Supplemental Memorandum supporting its motions, the undersigned hereby determines as follows:

FINDINGS OF FACT

1. The primary purpose of Respondent Correction Enterprises is to provide products and services for North Carolina tax supported agencies at competitive prices that realize savings for the operation of government, while providing meaningful work rehabilitation opportunities for inmates. Manpower Services is part of a network of 30 operations known collectively as Correction Enterprises.

Respondent Correction Enterprises receives no appropriations from the legislature and operates much like a private business. An employee’s position with Respondent is solely funded by the contract under which that employee works, and lasts only for the length of the contract. Once a contract is terminated, the affected employee is either reassigned if possible, or terminated through the reduction in force (RIF) process. (CES I and CES III Job Descriptions)

2. On March 3, 2003, Petitioner began working for Respondent as a Correctional Enterprises Supervisor I, assigned to the Employment Security Commission’s Janitorial Services contract (ESC contract) in Raleigh, North Carolina. Petitioner worked from 6:45 am until 3:00 pm. On March 26, 2003, Respondent’s Business Manager George Lipscomb conducted a staff meeting, and advised all employees that the ESC contract would not be renewed.

3. On July 1, 2003, the ESC contract with Respondent terminated, and Petitioner’s position ended. Petitioner asked not to be “RIF’ed” and to remain in the Raleigh area.

4. On July 1, 2003, Respondent did not have any janitorial supervisory positions available, so it reassigned Petitioner as a CES I – Paint Crew Supervisor at the Enterprise Manpower Services Warehouse in Apex. Petitioner’s working hours were 7:30 am until 4:00 pm. Petitioner worked under the immediate supervision of Assistant Manager Robert Lewis. Mr. Lewis assigned Petitioner different work projects, including training Petitioner how to supervise male work crews painting at the State Highway Patrol, and the Morrisville Town Hall.

5. From July 7, 2003 until July 11, 2003, Petitioner took vacation.

6. From July 14, 2003 through July 25, 2003, Petitioner trained with CES III Jim Garrett with a male paint crew. During that time, Petitioner advised Mr. Walter Evans, Respondent’s Manpower Services Manager, that she did not feel safe supervising male inmates alone.

7. Effective July 29, 2003, Respondent assigned Petitioner to the Apex Manpower Services Warehouse to assist with clerical duties.

8. From August 4, 2003 through August 29, 2003, Petitioner supervised a female inmate crew to paint the Town of Morrisville town hall, and walls at Durham Technical Community College.

9. During this time, Respondent learned that the Department of Corrections did not allow its female inmates to travel outside the Raleigh area to work.

10. In mid-August 2003, Petitioner asked Respondent if she would receive a raise with her new title and position with the female inmate paint crew. No job description had been written for that position at that time. Mr. George Lipscomb was in the process of drafting a job description for Petitioner’s trial position of CES I for the female paint crew.

11. On September 5, 2003, Petitioner met with Mr. Evans, Mr. Lipscomb, and Supervisor Lewis at the DOC office on Yonkers Road. At this meeting, Lipscomb, Evans, and Petitioner discussed Petitioner’s inquiry regarding a pay raise, and the essential job functions for a CES I and CES III. Respondent’s Managers advised Petitioner the CES III position required skills in multiple trades, while the CES I only required skill in one trade area.

There were only three supervisory positions approved by Personnel currently in use in the Respondent’s Manpower Services section. Those approved positions were CES I, CES III, and CES IV. Respondent’s managers did not think that Petitioner possessed the skills and training necessary to qualify her for the higher position of a Correction Supervisor III (“CES III”). Petitioner had just begun accumulating basic painting skills. They thought that Petitioner was properly qualified as a CES I given her skill level and training. They told Petitioner that they were not going to give her a raise, because the Janitorial Supervisor and Paint Crew Supervisor positions were the same position.

12. From September 8, 2003 through September 11, 2003, Respondent assigned Petitioner to supervise a crew to power wash several buildings at the State Park Falls Lake.

13. By letter dated September 8, 2003, Respondent notified Petitioner that she had been reassigned to the Janitorial Supervisor position at Halifax Community College, effective September 15, 2003. Petitioner’s working hours would be Monday – Thursday, 6:00 pm to 2:30 am, and Friday, 6:00 pm to 12:00 am.

14. On September 8, 2003, Petitioner requested leave for the period of September 12-15, 2003. Respondent denied such leave.

15. On September 10, 2003, Petitioner requested that she be allowed to continue working with her female paint crew through December 19, 2003, because she was attending school, and December 19, 2003 was the end of the semester. By memorandum dated September 10, 2003, Mr. Evans denied Petitioner’s request.

16. On September 15, 2003, Petitioner met with Respondent’s Director Karen Brown. Petitioner voiced concerns that Respondent had discriminated against her based upon her gender and age, when it denied her a raise in mid-August 2003. Petitioner advised Brown that Mr. Lipscomb had told her that she was classified correctly, since she was “just a paint crew,” and that the CES III crews do many different types of construction, of which she did not possess the necessary skills. Petitioner also told Ms. Brown that Respondent’s managers took away a draft of her new job description, but Mr. Evans gave Petitioner a new draft description “for discussion.” Petitioner thought Mr. Evans became frustrated when Petitioner wanted to compare the two separate draft descriptions. Petitioner acknowledged that she never signed a new job description.

17. Petitioner admitted to Ms. Brown that she could not work second shift because she was a single mother and was in school. Ms. Brown approved Petitioner’s sick leave request for September 15, 2003 because Petitioner was having some medical work performed at Duke Hospital.

18. Ms. Brown submitted Petitioner’s claims for discrimination to DOC’s Equal Employment Opportunity office (“EEO”) for an independent investigation.

19. Later on September 15, 2003, Petitioner called Ms. Brown and asked whether she had to report to work to the Halifax job during the DOC’s EEO investigation. Brown advised Petitioner that she had to report since Halifax was her duty station. Petitioner advised Brown that she would take her case to the Office of Administrative Hearings because she was not going to report to the Halifax Community College job.

20. On September 16, 2003, Brown advised Petitioner by letter that she would have to report to work, and if she was absent for three consecutive days without approved leave, Brown would have to separate Petitioner from employment under the “Resignation without Written Notice” policy. Brown further asked Petitioner to contact her by telephone upon receipt of this letter. However, Ms. Brown does not recall receiving any response from Petitioner during the three days after her letter.

21. On September 16, 2003, Petitioner called Supervisor Roland Owens and advised him she would not be reporting to work that day because she was sick. On September 17-19, and 23-25, Petitioner failed to report to work due to illness. She notified Supervisor Owens she would not report to work on September 19, 2003.

22. On September 26, 2003 at 12:15 p.m., Roland Owens called Petitioner at home and advised her that she could not return to work until a doctor completed her Family Medical Leave papers, a certification paper, and a job fitness evaluation stating she was able to work with no problems. Around 2:15 p.m. that day, Petitioner called the DOC Central Office and talked with Ms. Mary Stephenson regarding why she had to use Family Medical Leave for her missed work days when she had sufficient sick leave to cover such leave and had a regular doctor’s note for those days. On September 26, 2003, Petitioner spoke with Mr. Lipscomb, and Ms. Stephenson regarding whether Petitioner could return to work without a doctor’s note.

23. On October 1, 2003, Petitioner filed a complaint with the DOC’s EEO.

24. On October 3, 2003, Petitioner filed a petition for a contested case hearing with the Office of Administrative Hearings alleging that Respondent had: (1) demoted her without just cause, (2) denied her training due to gender discrimination, (3) demoted her due to gender discrimination, (3) denied her a transfer due to gender discrimination, and (4) retaliated against her for opposition to gender discrimination. Petitioner also alleged that Respondent, particularly Mr. Walter Evans and Mr. George Lipscomb, had created a hostile work environment for her.

25. On October 6, 2003, Petitioner reported to work. Respondent notified her that her illness did not qualify for Family Medical Leave. (Lipscomb affidavit, paragraph 13)

26. On October 7, 2003, Petitioner submitted her letter of resignation, with such resignation being effective October 10, 2003.

Demotion

27. The evidence in the record showed that Respondent uses informal working titles such as “Field Crew Supervisor,” “Janitorial Supervisor,” and “Paint Crew Supervisor” to indicate the type of work that was being performed under that supervisor. These informal working titles are not Office of State Personnel job classifications, and are not used for pay determination. (Lipscomb’s Supplemental Affidavit, Para. 8)

28. The evidence in the record showed that Petitioner’s job classification, salary, pay grade, and position remained the same, as a CES I, when she was reassigned as a Paint Crew Supervisor in July 2003, regardless of her informal working title. (Lipscomb’s Supplemental Affidavit, Para. 9)

29. The evidence in the record also proved that the duties of a CES I and CES III differed. The CES I duties required a single limited skill that was performed in a general location, rather than statewide, and required supervision and training of inmate crews to perform the limited function or skill. The salary classification was grade level 62. The CES III duties required someone who was a multiple-level skill supervisor, who could train and supervise inmate crews to perform multiple skill functions, including installation of bleachers, open office panel systems, carpet, tile, and aluminum sidewalk canopies, and painting, fence installation, concrete and masonry work, roofing and moving services. A CES II supervised inmate crews who worked statewide, and required overnight stays with some jobs. The CES III position was a salary grade level of 66. (Lipscomb’s Supplemental Affidavit)

30. On some occasions, Respondent’s Manpower Services used a CES II job classification for an employee who possessed the same multiple level skills as CES III, but who performed his duties in a single location. (Lipscomb’s Supplemental Affidavit, paragraph 10)

31. The evidence reflected that in August and September 2003, Petitioner had only begun training for supervising inmate crews in painting. The variety and complexity of Petitioner’s job duties as a “Paint Crew Supervisor” did not indicate she was performing the duties of a higher grade position or level than her original position as Janitorial Supervisor, CES I.

32. The evidence in this case further indicated that since September 1, 2003, Respondent had not issued a written statement to Petitioner disciplining her during her employment.

33. Respondent’s evidence showed that between September 1, 2003 and February 16, 2004, Respondent did not receive any appeals contemplated by N.C. Gen. Stat. § 126-35(a) from Petitioner. Petitioner failed to present any competent evidence to the contrary.

Training

34. In her petition, Petitioner alleged, “if I had not been a female, I would have been given the opportunity to continued [sic] on with my paint crew and would have been taught other skills needed to do other projects without any assumptions to my capabilities.” (Petition, p 3) In her Prehearing Statement, Petitioner also contended, “if she was a male work project supervisor, she would have been given the opportunity to be trained to do other jobs and eventually received the raise in pay which the classification entitles.”

However, the evidence from the record established that the title “work project supervisor” was only an informal working title used by Respondent to designate the types of work being performed by a supervisor’s inmate crew. “Work project supervisor” was not a separate job classification with a higher salary grade and pay under the Office of State Personnel’s job classification system. Petitioner failed to present any evidence showing what opportunities for training she was denied by being a female. That is, she failed to show when and where similarly situated male CES employees had the opportunity to receive training to acquire other skills, but she was not allowed the same opportunity.