STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF DURHAM NO. 04 OSP 0435

ADRIEL WILLIAMS
Petitioner,
v.
UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL,
Respondent. / DECISION

This matter came on for hearing before Judge Sammie Chess, Administrative Law Judge, on 26 July 2004 in Raleigh, North Carolina.

APPEARANCES

For petitioner: Adriel Williams, pro se

533 Reynolds Ave.

Durham, NC 27707

For respondent: Q. Shanté Martin

Assistant Attorney General

N.C. State Bar No. 28510

N.C. Department of Justice

Education Section

Post Office Box 629

Raleigh, NC 27602-0629

EXHIBITS

Admitted for petitioner:

1. Petitioner’s interim performance reviews for the work planning period ending 31 May 2000, 31 May 2001, and 31 May 2002 and petitioner’s annual performance reviews for the work planning period ending 31 May 2001 and 31 May 2002.

2. Forty-eight pictures of petitioner’s work areas on 12 May 2003.

3. Petitioner’s employee grievance filing form dated 2 July 2002

4. Petitioner’s employee grievance filing form dated 3 April 2003.

Admitted for respondent:

  1. 4 June 2002 written warning given to petitioner by Constance Craven
  1. 2 April 2003 memo from William Burston to petitioner
  1. List of standard tasks and frequencies for housekeepers
  1. 13 May 2003 written warning given to petitioner by William Burston
  1. 16 May 2003 notice of pre-disciplinary conference from William Burston to petitioner
  1. 20 May 2003 letter of dismissal
  1. Pictures of petitioner’s work area on 12 May 2003
  2. Picture of Carroll Hall auditorium
  3. Picture of Carroll Hall auditorium
  4. Picture of Carroll Hall auditorium
  5. Picture of Carroll Hall auditorium
  6. Picture of Carroll Hall auditorium
  7. Picture of Carroll Hall auditorium
  8. Picture of Carroll Hall auditorium
  9. Picture of Carroll Hall auditorium
  10. Picture of Carroll Hall auditorium
  11. Picture of Carroll Hall auditorium
  12. Picture of Carroll Hall seminar room
  13. Picture of a copy room in Carroll Hall
  14. Picture of a classroom in Carroll Hall
  15. Picture of janitor closet in Carroll Hall
  16. Picture of area outside of janitor closet in Carroll Hall
  1. Petitioner’s work plan for the period 1 June 2002 through 31 May 2003

WITNESSES

Called by petitioner:

Petitioner, Adriel Williams.

Called by respondent:

  1. Constance Craven
  2. William Burston
  3. Clarence Harris
  4. Matthew Lawrence

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

FINDINGS OF FACT

1. Petitioner, Adriel Williams, filed a Petition for a Contested Case Hearing on 18 March 2004. The petitioner alleged harassment and discharge without just cause.

2. On 21 April 2004, UNC-CH filed its Prehearing Statement and its Document Constituting Agency Action. Petitioner never filed a Prehearing Statement.

3. On 21 April 2004, respondent also filed a Motion to Dismiss petitioner’s harassment claim. Due to petitioner’s verbal withdrawal of his harassment claim during a telephone hearing, the undersigned Administrative Law Judge (ALJ) dismissed petitioner’s harassment claim.

4. The sole issue to be decided is whether UNC-CH had just cause to dismiss petitioner.

5. At the time of his dismissal, petitioner was employed at UNC-CH as a housekeeper. Before becoming a housekeeper, petitioner had previously been a Housekeeping Administrator at UNC-CH.

6. In his position as housekeeper, on 21 May 2002, petitioner requested vacation leave for 24 May 2002 and 27 May 2002. Due to problems with absenteeism and the need for coverage when housekeepers did not report to work, petitioner’s supervisor, Constance Craven, told all housekeepers under her supervision that housekeepers in the same building should not request vacation time on the same days. Ms. Craven notified Mr. Williams specifically not to request vacation at the same time someone else in his building requested vacation leave. Ms. Craven’s policy was to grant vacation leave based on who made the request first.

7. Another housekeeper in petitioner’s work area had scheduled a vacation day on 27 May 2002. After petitioner’s co-worker in his same work area scheduled to take vacation leave on 27 May 2002, petitioner requested a vacation day on 27 May 2002.

8. Pursuant to the policy she had previously explained to petitioner and her entire staff, Ms. Craven granted petitioner’s request for vacation leave on 24 May 2002, but denied petitioner’s request for vacation leave on 27 May 2002.

9. On 27 May 2002, although Ms. Craven denied his request for vacation leave, petitioner did not report to work. When petitioner returned to work, although petitioner claimed that he was sick, he never provided a doctor’s note or other indication to support that he was sick.

10. Ms. Craven gave petitioner a written warning for unacceptable personal conduct, specifically, insubordination on 4 June 2002. The 4 June 2002 written warning specifically states that it is a written warning; it lists the specific reason for the written warning; it gives petitioner a time frame for improvement; the written warning informed petitioner of the consequences of failing to correct his action; and the written warning notified petitioner of his appeal rights.

11. Petitioner’s work schedule was from 12:00 a.m. to 8:00 a.m. on Monday through Friday, and his assigned work area at the time of his dismissal was the first floor of Carroll Hall on the campus of UNC-CH.

12. UNC-CH’s work plan in place for petitioner at the time he was dismissed covered the period beginning 1 June 2002 and ending 31 May 2003.

13. Petitioner indicated that he read the work plan and that his supervisor reviewed the work plan with him by initialing every page and by signing the work plan on the last page on 31 May 2002.

14. Petitioner’s work plan stated that the principal functions for petitioner’s position would be listed, beginning with the most important function. The first principal function for petitioner was “to accomplish daily[,] repetitive housekeeping tasks as assigned by work schedule or supervisor.”

15. The third principal function on petitioner’s work plan was to “maintain . . . custodial closets.” Maintaining custodial closets included “clean[ing] and secur[ing] equipment in [a] proper location daily” and “keep[ing] custodial closets in a clean and organized manner and locked when not in use.”

16. Some of petitioner’s daily, repetitive tasks included the following: spot mopping building surfaces, spot mopping obvious soil, sweeping and dusting obvious soil, emptying trash receptacles, spot cleaning the trash receptacles, replacing soiled trash receptacle liners, and removing carpet stains in the Carroll Hall auditorium and in classrooms; spot mopping floors and cleaning chalk trays in classrooms; and spot cleaning surfaces, vacuuming obvious soil, and sweeping and dust mopping obvious soil on the stairs.

17. On 2 April 2003, petitioner’s supervisor, William Burston, observed that many of Petitioner’s daily cleaning duties had been left unattended in Carroll Hall. Thereafter, Mr. Burston walked petitioner through his assigned work area in Carroll Hall and explained the problem areas to petitioner.

18. Some of the deficiencies included petitioner’s failure to clean the entryway glass doors, to clean his assigned stairwell, to spot vacuum offices, and to spot mop the hallway.

19. Mr. Burston followed up with petitioner by sending him a note listing the problem areas referred to on 2 April 2003. To ensure that petitioner was aware of his daily responsibilities, Mr. Burston attached a list of the standard tasks and frequencies for housekeepers to the 2 April 2003 memo. Petitioner received the 2 April 2003 memo as well as the list of standard tasks and frequencies attached to the memo.

20. Despite Mr. Burston’s instruction to petitioner on 2 April 2003, on 12 May 2003, Mr. Burston once again observed numerous deficiencies in petitioner’s assigned work area in the same building, some of which were the same problems discussed on 2 April 2003.

21. Deficiencies in petitioner’s work performance on 12 May 2003 included the following: the Carroll Hall auditorium had cups, bottles, newspaper, paper, beer cans, and candy wrappers all over the auditorium; spill stains were on the floor in the auditorium; petitioner’s stair well had dust and trash on the steps; spill stains were on the floor inside an entrance to the building; a spill stain was in front of the elevator; the first floor janitor closet was open; and the janitor closet in the bathroom was unlocked and unorganized.

22. Due to these numerous deficiencies about which petitioner had been previously warned, Mr. Burston gave petitioner another written warning for poor job performance towards the beginning of petitioner’s shift at approximately 12:45 a.m. on 13 May 2003.

23. The 13 May 2003 written warning specifically states that it is a written warning; it lists the specific reason for the written warning; it gives petitioner a time frame for improvement; the written warning informed petitioner of the consequences of failing to correct his action; and the written warning notified petitioner of his appeal rights.

24. In the 13 May 2003 written warning to petitioner, Mr. Burston listed numerous deficiencies in petitioner’s work. Among other directives, Mr. Burston also specifically told petitioner that “[t]he auditorium should be cleaned daily.”

25. Two shifts after receiving a written warning for unacceptable work performance, when petitioner’s shift was over on 14 May 2003, his assigned work area remained unsatisfactory.

26. Despite Mr. Burston’s specific instruction to clean the auditorium, when petitioner’s shift was over on 14 May 2003, petitioner still did not pick up the bottles, cups, and paper in the auditorium. The auditorium also still had stains on the floor with paper stuck to the stains. After having two shifts to address the problems Mr. Burston noted in the 13 May 2003 written warning, petitioner still failed to correct his deficient performance.

27. This third act prompted Mr. Burston to issue petitioner a Notice of Pre-Disciplinary Conference on 16 May 2003. This Notice of Pre-Disciplinary Conference gave petitioner advance notice of the time, location, and issue giving rise to the recommendation of disciplinary action.

28. Petitioner had a pre-disciplinary conference on 16 May 2003 with Mr. Burston and with a representative from Human Resources. During the pre-disciplinary conference, petitioner had the opportunity to respond to the proposed dismissal.

29. UNC-CH issued petitioner a termination letter on 20 May 2003, discharging petitioner from his position as housekeeper. The dismissal letter listed the following: specific reasons for petitioner’s dismissal, the effective date of his termination, and information about petitioner’s appeal rights.

BASED UPON the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. “In contested cases conducted pursuant to Chapter 150B . . ., the burden of showing that a career State employee subject to the State Personnel Act was discharged . . . for just cause rests with the department or agency employer.” N.C.G.S. § 126-35(d) (2003). Therefore, UNC-CH has the burden to show that it dismissed petitioner for just cause.

2. “No career State employee subject to the State Personnel Act shall be discharged . . . for disciplinary reasons, except for just cause.” N.C.G.S. § 126-35(a). “There are two bases for the . . . dismissal of employees under the statutory standard for ‘just cause’ as set out in [N.C.]G.S. 126-35.” 25 N.C.A.C. 1J.0604(b). Either unsatisfactory job performance or unacceptable personal conduct constitute just cause for dismissal. 25 N.C.A.C. 1J.0604(c).

3. Unsatisfactory job performance is defined as the “[w]ork-related performance that fails to satisfactorily meet job requirements as specified in the relevant job description, work plan, or as directed by the management of the work unit or agency.” 25 N.C.A.C. 1J.0614(j).

4. Unacceptable personal conduct is among other things “the willful violation of known or written work rules.” See 25 N.C.A.C. 1J.0614(i)(4). Insubordination is also considered unacceptable personal conduct. 25 N.C.A.C. 1J.0614(h). Insubordination is “[t]he willful failure or refusal to carry out a reasonable order from an authorized supervisor.”

5. “The categories [of unsatisfactory job performance and unsatisfactory personal conduct] are not mutually exclusive, as certain actions by employees may fall into both categories, depending upon the facts of each case.” 25 N.C.A.C. 1J.0604(c). Petitioner’s conduct falls under the definition of both unsatisfactory job performance and under unsatisfactory personal conduct.

6. Petitioner’s actions constituted unacceptable job performance because he “fail[ed] to satisfactorily meet [the] job requirements as specified in [his] work plan and as directed by [his supervisor].” For example, petitioner’s active work plan specified that his most important principal function was to complete “daily repetitive housekeeping tasks.” Though some of petitioner’s daily repetitive tasks included removing obvious soil from surfaces in the auditorium, spot mopping the auditorium, and spot mopping classroom floors, petitioner failed to complete these daily repetitive tasks on more than one occasion. Additionally, petitioner’s supervisor directed him to clean the Carroll Hall auditorium in the 13 May 2003 written warning. However, petitioner failed to adequately clean the auditorium after being specifically directed to do so.

7. Petitioner’s conduct also constituted unacceptable personal conduct because he was insubordinate and because he violated a known and a written work rule. Insubordination is the “willful failure or refusal to carry out a reasonable order from an authorized supervisor.” 25 N.C.A.C. 1J.0614(h). Petitioner’s supervisor told him not to take vacation days when other employees in the same building had previously scheduled to take vacation days. Petitioner’s supervisor also specifically told him that he could not take vacation leave on 27 May 2002, but he failed to follow that directive and did not come to work on that day. Additionally, petitioner willfully failed to carry out his supervisor’s instruction to clean the Carroll Hall auditorium on 13 May 2003. See, e.g., N.C.A.C. 1J.0614(h)

.

8. Another example of how petitioner’s conduct constituted unacceptable personal conduct is that petitioner knew and it was written in his work plan that his principal function as a housekeeper was to complete his daily repetitive tasks. However, he violated that known and written work rule by failing to complete his daily repetitive tasks. See, e.g., 25 N.C.A.C. 1J.0614(i)(4).

9. Respondent followed all the procedures to dismiss petitioner for either unacceptable job performance or unacceptable personal conduct.

10. In order to be dismissed for a current incident of unsatisfactory job performance[,] an employee must first receive at least two prior disciplinary actions: First, one or more written warnings followed by a warning or other disciplinary action which notifies the employee that failure to make the required performance improvements may result in dismissal.