STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF HOKE 09 OSP 4436

Charolettee Hope,
Petitioner,
vs.
Cumberland County Department of Social
Services,
Respondent. / )
))
)
)))) / DECISION

This matter was heard before Beecher R. Gray, Administrative Law Judge, on November 9, 2009 at the Old Cumberland County Courthouse in Fayetteville, NC.

APPEARANCES

For Petitioner: Charolettee Hope, appearing pro se

362 Woodberry Circle

Raeford, NC 28376

For Respondent: Phyllis P. Jones, Esq.

Assistant County Attorney

Cumberland County Attorney Office

Post Office Box 1829

Fayetteville, NC 28302

WITNESSES

Petitioner presented testimony.

ISSUES

1. Whether Respondent discriminated against Petitioner on the basis of race when it terminated her employment.

2. Whether Respondent discriminated against Petitioner on the basis of age when it terminated her employment.

Based upon the pleadings and other materials in the file and the sworn testimony of Petitioner, the undersigned makes the following:

FINDINGS OF FACT

1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.

2.  Petitioner is an African-American female who began working for Respondent as a Social Worker-IAT on March 17, 2008 and continued working in that capacity until she was terminated effective May 11, 2009.

3.  Petitioner was a career State employee pursuant to N.C. Gen. Stat. § 126-1.1 at the time of her termination, and thus is subject to the provisions of Chapter 126 of the North Carolina General Statutes.

4.  The petition for a contested case alleges that Respondent discriminated against Petitioner on the bases of her race and age when it terminated her employment.

5.  Petitioner presented evidence through her own testimony concerning her employment with Respondent and the circumstances surrounding her dismissal from that employment.

6.  Petitioner was terminated for her failure to comply with a work plan imposed by Respondent on February 17, 2009. Under the work plan, Petitioner was to complete required documentation in nineteen cases. Petitioner observed that a younger Social Worker-IAT, Felicia Robinson, was allowed to transfer her cases without completing the documentation.

7.  Petitioner also testified that a contract employee was brought in to assist a white social worker with a backlog of cases.

8.  Petitioner did not present any exhibits or other witnesses to testify on her behalf.

9.  At the conclusion of Petitioner’s testimony, Respondent moved to dismiss the case for Petitioner’s failure to establish a prima facie case of discrimination based on either race or age.

CONCLUSIONS OF LAW

1.  The parties properly are before the Office of Administrative Hearings.

2.  Under N.C. Gen. Stat. § 126-36 (2007), a career status employee may challenge an employment action she believes was motivated by illegal discrimination on the part of the employing local government agency subject to Chapter 126. The employee carries the initial burden of proof of establishing a prima facie case of discrimination by a preponderance of the evidence. Area Mental Health v. Speed, 69 N.C. App. 247, 253-254, 317 S.E.2d 22, 25, cert. denied, 312 N.C. 81, 321 S.E.2d 893 (1984). “[T]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all time with the plaintiff.” N.C. Dep’t of Correction v. Gibson, 308 N.C. 131, 138, 301 S.E.2d 78, 83 (1983) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 215 (1981)).

3.  North Carolina has adopted the burden-shifting scheme set out by the United States Supreme Court in McDonnell Douglas v. Greene, 411 U.S. 792, 36 L. Ed. 2d 668 (1973). Gibson, 308 N.C. at 141, 301 S.E.2d at 85. Petitioner bears the initial burden of establishing a prima facie case of discrimination, namely that: (1) she is a member of a minority group; (2) she was qualified for the position; (3) she was discharged; and (4) the employer replaced her with a person who was not a member of a minority group or alternatively, the employer retained a white employee under apparently similar circumstances. Id. at 137, 301 S.E.2d at 82-83.

4.  Petitioner did not present any evidence that the employer replaced her with a person who was not a member of a minority group. Likewise, Petitioner did not present any evidence that the employer retained a white employee under apparently similar circumstances. Consequently, Petitioner failed to establish a prima facie case of race discrimination.

5.  To make out a prima facie case of age discrimination, Petitioner must show: (1) she is a member of the protected class; (2) she was qualified for the job and met Respondent’s legitimate expectations; (3) she was discharged despite her qualifications and performance; and (4) following her discharge, she was replaced by a substantially younger individual with comparable qualifications. Warch v. Ohio Cas. Ins. Co., 435 F.3d 510(4th Cir. 2006).

6.  Petitioner did not present evidence that she met Respondent’s legitimate expectations. She also did not present any evidence of her own age or the age of the younger employee she alleged was treated differently. Thus, she failed to establish a prima facie claim of age discrimination.

DECISION

The undersigned finds that Petitioner has failed to establish a prima facie case that Respondent’s decision to terminate her employment was motivated or in any way influenced by either Petitioner’s race or her age and therefore those claims are DISMISSED.

ORDER

It hereby is ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Services Center, Raleigh, N.C. 27699-6714, in accordance with N.C.G.S. § 150B-36(b).

NOTICE

The agency making the final decision in this contested case is required 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. N. C. Gen. Stat. § 150B-36(a).

In accordance with N.C. Gen. Stat. § 150B-36 the agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.

The agency that will make the final decision in this case is the North Carolina State Personnel Commission. State Personnel Commission procedures and time frames regarding appeal to the Commission are in accordance with Appeal to Commission, Section 0.0400 et seq. of Title 25, Chapter 1, Subchapter B of the North Carolina Administrative Code (25 NCAC 01B .0400 et seq.).

This the 15th day of April, 2010.

______

Beecher R. Gray

Administrative Law Judge

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