STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF VANCE 03 OSP 0851, 1141, 1743
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ARLENE BURWELL
Petitioner,
v.
N.C. DEPARTMENT OF CORRECTION,
DIVISION OF PRISONS, POLK YOUTH INSTITUTION
Respondent.
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DECISION
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THIS MATTER came before the Honorable James Conner II, Administrative Law Judge, upon Respondent’s Motions for Summary Judgment and Motion to Dismiss argued August 22, 2005. After considering the allegations contained in the complaint, and the Respondent’s argument and affidavits, to which Petitioner failed to appear and respond and, pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, it appears to the court that the following facts are undisputed and there is no genuine issue as to any material fact and that the Respondent is entitled to a judgment as a matter of law. Upon consideration of Respondent’s Motion for Summary Judgment, without response from Petitioner, the undersigned Grants Respondent’s Motion.
UNCONTESTED FACTS
1. The Petitioner filed a Petition for Contested Case on May 16, 2003 (03 OSP 0851) alleging that “transfer was forced upon me without just cause.”
2. On or about July 1, 2003, Petitioner filed a second contested case petition (03 OSP 1141) with the Office of Administrative Hearings alleging that the Department discharged her without just cause. See July 1,2003 Petition.
3. Also in that Petition, Petitioner alleged that her claim was based on discrimination and/or retaliation for opposition to alleged discrimination based upon race, sex and color. Id.
4. In the preprinted petition, the Petitioner was asked to briefly state facts showing how she was harmed by the State, in which the Petitioner stated, “I have been repeatedly harassed and retaliated against. I have been subjected to undue stress, cruel and unusual punishment mental anguish and the ending result was termination. Id.
5. The Petitioner never elaborates on the details of the actions she speaks about.
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6. The Petitioner filed a subsequent contested cased petition (03 OSP 1743) alleging the same facts and circumstances as articulated in 03 OSP 1141.
7. 03 OSP 1743 does not include any new or different factual allegations than those contained in 03 OSP 1141.
8. George Currie testified in his affidavit that at the time of the Petitioner’s discharge, he was Correctional Administrator at Polk Youth Institution (“Polk”). Currie Affidavit, ¶ 2.
9. On May 12, 2003, Arlene Burwell (“Petitioner”), requested to see him at approximately 9:00 a.m. to discuss her assignment to attend Employee Orientation Classes at Polk Youth Institution. Currie Affidavit, ¶ 3.
10. He explained to the Petitioner that she was expected to attend this training and that this was considered her assignment for the day’s schedule. Currie Affidavit, ¶ 4.
11. He explained that all employees new to Polk had to attend the training, although some materials covered may have been covered in her orientation at Warren Corrections Institution. Currie Affidavit, ¶ 5.
12. Petitioner asked if she refused to attend would she be dismissed, to which he replied, that “this was a reasonable assignment and that I expected you to return to class.” Currie Affidavit, ¶ 6.
13. At this point, the Petitioner told Mr. Currie that she was refusing to attend Orientation Class. Currie Affidavit, ¶ 7.
14. Mr. Currie asked the Petitioner to step outside his office for a second so that he could get a witness, Mr. Bobby Montague to come in. Currie Affidavit, ¶ 8.
15. After Mr. Montague came into Mr. Currie’s office, he asked again if the Petitioner was going to her assignment, to which she replied, “No.” Currie Affidavit, ¶ 9.
16. Mr. Currie explained that he was giving the Petitioner specific instructions, a direct order to report to class. Currie Affidavit, ¶ 10.
17. After a brief period, Petitioner stated in a hostile manner that she would report to class. Currie Affidavit, ¶ 11. Petitioner then stood up to leave the office and Mr. Currie instructed her to have a seat, that he was not finished talking with her. Currie Affidavit, ¶ 12.
18. As Mr. Currie was counseling her, Petitioner stood up and, without saying anything, opened the door to his office and left, slamming the door so hard that bits of the ceiling fell hitting Currie’s desk. Currie Affidavit, ¶ 13.
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19. Mr. Currie ordered the Petitioner to stop as she was leaving, and she disobeyed and left both his office and the Administrative Area. Currie Affidavit, ¶ 14.
20. Mr. Currie, along with Mr. Montague, caught up with the Petitioner by Master Control and again ordered her to stop. Currie Affidavit, ¶ 15.
21. Petitioner stated that she was going to get her bag from the classroom. Currie Affidavit, ¶ 16.
22. Mr. Currie instructed her to give him her Identification Card at this time, which she refused saying that she was going to get her bag. Currie Affidavit, ¶ 17.
23. Mr. Currie, along with Mr. Montague, escorted the Petitioner to the classroom to get her bag. When she returned to Master Control, the Petitioner gave him her ID card. Currie Affidavit, ¶ 18.
24. Mr. Currie instructed the Petitioner not to return to the unit until notified by him. Currie Affidavit, ¶ 19.
25. Mr. Currie reviewed the Petitioner’s personnel record and discovered that the Petitioner had been issued a prior written warning dated January 18, 2003 for unsatisfactory job performance for failing to properly report to work as scheduled. Currie Affidavit, ¶ 20.
26. A Pre-dismissal Conference was held on May 23, 2003 to provide the Petitioner an opportunity to respond to the proposed recommendations. Currie Affidavit, ¶ 21.
27. Based on the actions of the Petitioner on May 12, 2003, Mr. Currie recommended through the chain of command that the Petitioner be dismissed for unacceptable personal conduct. Currie Affidavit, ¶ 22.
28. Mr. Currie has never discriminated, nor retaliated against the Petitioner on the basis of her race, sex or color or for any other reason. Currie Affidavit, ¶ 23.
29. Petitioner was notified by certified mail dated July 11, 2005, of the hearing date, location and time of hearing by the Office of Administrative Hearings.
30. Within this notice Petitioner was also informed that failure to appear at the hearing may result in dismissal of the case or allowance of the Motion or Petition.
31. Petitioner was not present at the hearing to present evidence in opposition to
32. Respondent’s Motion to Dismiss and Motion for Summary Judgment.
33. On August 22, 2005, Respondent argued a Motion for Summary Judgment in that Petitioner was dismissed for just cause and there were no genuine issues of material fact for trial.
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34. Because of the Petitioner’s failure to appear and failure to produce Rule 56 evidence establishing that genuine issues of material fact exists, Respondent is entitled to summary judgment as to the above-captioned claims.
CONCLUSIONS OF LAW
1. To survive summary judgment, the non-moving party must produce, through affidavits and other Rule 56 evidence, specific facts showing that there is a genuine issue of material fact on each element of proof essential to her case upon which she bears the burden of proof. If she fails to do so, the moving party is entitled to summary judgment. N.C.G.S. § 1A-1, Rule 56, N.C.R. Civ. P., Bone International, Inc. v. John C. Brooks, 304 N.C. 371, 374, 283 S.E.2d 518, 520 (1981). Only issues of material fact avoid summary judgment. Only a fact, resolution of which would prevent the party against whom it is resolved from prevailing, is material. Bone International, Inc. v. Brooks, 304 N.C. at 375, 283 S.E.2d at 520. Thus a defending party is entitled to Summary Judgment if it can show that the claimant cannot prove the existence of an essential element of his claim. Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981)(citation omitted). A Petitioner who relies on “mere belief or conjecture, or the allegations and denials contained in his pleadings,” cannot avoid summary judgment. Celotex v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986).
2. Petitioner’s insubordination constituted unacceptable personal conduct and justified her termination.
3. “Transfer without just cause” is not one of the grounds for contested case listed under N.C. Gen. Stat. § 126.34.1, and these grounds are exclusive.
4. Respondent, therefore, is entitled to summary judgment. N.C.G.S. § 1A-1, Rule 56 , N.C.R. Civ. P., Bone International, Inc. v. John C. Brooks, 304 N.C. at 371, 374, 283 S.E.2d at 518, 520.
5. Petitioner, by failing to appear at the hearing scheduled for August 22, 2005, has failed to prosecute the case. Therefore justifying its dismissal pursuant to 1A-1, Rules of Civil Procedure, Rule 41(b), 26 NCAC 03.0105 (1)(6) and 26 NCAC 03.0114 for failure to prosecute the case.
DECISION
It is hereby ORDERED that Summary Judgment be GRANTED in 03 OSP 0851, 1141 and 1743 in that there are no genuine issues of material fact, and Respondent is entitled to prevail as a matter of law on the uncontested facts.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with North Carolina General Statute 150B-36(b).
NOTICE
The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B036(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).
The agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.
This the 7th day of November 2005.
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James Conner II
Administrative Law Judge
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