STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

WAKE COUNTY 09 OSP 2813

______

MEKRE FRANCIS, )

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA DEPARTMENT )

OF HEALTH AND HUMAN SERVICES, )

DIVISION OF MENTAL HEALTH, )

DEVELOPMENTAL DISABILITIES )

AND SUBSTANCE ABUSE SERVICES, )

MURDOCH DEVELOPMENTAL )

CENTER, )

Respondent. )

THIS MATTER was heard before the undersigned Administrative Law Judge, Beecher Gray, in Raleigh, North Carolina, on November 4-5, 2009 and February 3, 2010. Petitioner was represented by Shelli Henderson Rice and Charles Monteith. Amy L. Funderburk, Assistant Attorney General, appeared on behalf of Respondent Murdoch Center, and Bethany Burgon, Assistant Attorney General, appeared on behalf of Respondent Health Care Personnel Registry. Petitioner filed two (2) contested cases, this case and 09 DHR 3935, which were consolidated for purposes of hearing. Separate decisions are being issued for sake of clarity and ease of reading.

PROCEDURAL BACKGROUND

On April 24, 2009, Petitioner filed a Petition for a Contested Case Hearing in the Office of Administrative Hearings, contending that he was dismissed from employment at the Murdoch Center without just cause and due to discrimination based his national origin. Said Petition was assigned Case File No.09 OSP 2813. Respondent filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction, alleging the Petitioner was not a career state employee and therefore not entitled to pursue a claim for dismissal without just cause on June 30, 2009. On or about July 13, 2009, Petitioner filed a Response to the Motion to Dismiss, to which the Respondent filed a Reply on July 20, 2009. The Undersigned entered an Order allowing Respondent’s Motion to Dismiss the Petitioner’s claims regarding dismissal without just cause.

On August 11, 2009, Case File No. 09 OSP 2813 and Case File No. 09 DHR 3935 were consolidated for hearing with the consent of the parties.

ISSUE

Whether Respondent discriminated against Petitioner because of his National Origin when Respondent discharged Petitioner from employment at the Murdoch Center after an Advocacy investigation substantiated an allegation of abuse against Petitioner.

WITNESSES

Petitioner presented testimony from the following witnesses:

  1. Petitioner Mekre Francis
  2. Kenneth Davis
  3. Avis Henderson

Respondent presented testimony from the following witnesses:

  1. Edna Edgerson
  2. Susan Conver
  3. Stella Haynes
  4. Maureen Crews
  5. Tracey Vigor

EXHIBITS

Petitioner’s Exhibits 1-8, and 10 were admitted into evidence.

Respondent’s Exhibits 1-30, 31-43, 47, 49-51, and 53 were admitted into evidence.

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearings, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

Petitioner’s Work History and Employment Status

  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.
  1. Petitioner was hired as a temporary employee at the Murdoch Center on March 22, 2007. (Plaintiff’s Exhibit 1, Respondent’s Exhibit 31, T. pp. 18, 97).
  1. Petitioner was hired as a permanent employee at the Murdoch Center on July 11, 2007. (Plaintiff’s Exhibit 2, Respondent’s Exhibit 32, T. pp. 21-22,198-199).
  1. Petitioner was promoted to the position of Developmental Technician II on October 23, 2007. (Petitioner’s Exhibit 3, Respondent’s Exhibit 33, T. p 24).
  1. As of the date of his termination, Petitioner had not worked full time as a State employee for the immediately preceding 24 months. In March 2008, Petitioner submitted a request for leave. Prior to this March 2008 submission of a request to take three weeks of leave in December 2008, Petitioner had not experienced any problems with Edna Edgerston, Division Director. At the time the leave request was submitted, Petitioner was supervised by Susan Conver, who was supervised by Edna Edgerston. (T p 24-25) Petitioner states that it was at this time that Respondent became aware of his national origin and that discrimination against him by Respondent started at this time. (T p 27-28)
  1. Petitioner did not view a request for leave in the month of December as any different from a request for leave at any other time of year. (T p 95-96) However, it is typically more difficult to schedule time off for employees during the month of December. (T p 239-240)
  1. At the Murdoch Developmental Center, absent an employee being placed on Family Medical Leave, an employee would not be granted three continuous weeks of vacation and there are times when all employees are prohibited from taking any leave at all. (T p 240)
  1. Petitioner received a written warning on May 30, 2008 for unacceptable personal conduct. The action was based on the Petitioner’s alleged failure to follow proper call-in procedures which resulted in unexcused absences and his refusal to carry out a reasonable request from his supervisor to report to work. (T p 75-77, Respondent’s Exhibit 35). Petitioner filed a grievance regarding the written warning on June 26, 2008. (Respondent’s Exhibit 36) On July 2, 2008, Edna Edgerston notified the Petitioner that she had determined that the written warning was warranted and that it would remain in his file. Multiple additional employees also received written warnings for the same violation for which the Petitioner received a Written Warning during the time period relevant to Petitioner. (T p 203, Respondent’s Exhibit 36)
  1. On August 28, 2008, Petitioner was offered a Health Care Technician II position in the Newport Cottage, Unit 1. (T p 104, Respondent’s Exhibit 37)
  1. JC, a resident of the Murdoch Center, alleged that Petitioner abused him on March 1, 2009. Murdoch Center Staff observed bruises on JC’s ear on March 2, 2009 and JC later reported that Petitioner had abused him by pushing him into a wall. JC previously had made false allegations of abuse against staff members at the Murdoch Center. At the time the allegations of abuse against Petitioner were made, a log was being maintained to record the numerous abuse allegations made by JC. (T p 180-184)
  1. On March 3, 2009, Petitioner was placed on leave because of allegations of physical abuse of Resident JC. (T p 208, Respondent’s Exhibit 38)
  1. On March 16, 2009, Petitioner was notified that a pre-disciplinary conference had been scheduled on March 23, 2009 and that management had made a tentative decision to dismiss him from employment as a Health Care Tech II because of unacceptable personal conduct. (Respondent’s Exhibit 39)
  1. On March 26, 2009, Petitioner was notified of his dismissal. (Respondent’s Exhibit 40 )
  1. As a non-career state employee, Petitioner was not entitled to file an appeal as to whether there was just cause for his dismissal. (T p 457)
  1. On April 24, 2009 Petitioner filed a Petition for Contested Case in the Office of Administrative Hearings, alleging discharge without just cause and discrimination based on national origin. (See Petition for Contested Case)
  1. Petitioner also filed a complaint regarding discrimination with the EEOC, wherein he stated that he had not been subjected to disciplinary action despite Petitioner previously having received a Written Warning. (T p 75, Respondent’s Exhibit 49)


Petitioner’s National Origin

  1. Petitioner was born in Trinidad, which is located in the West Indies. His father is from Trinidad and his mother is from Grenada. Petitioner lived in Trinidad until the age of fourteen and a half, when he moved to New York. Petitioner remained in New York for thirteen to fourteen years and moved to North Carolina in 2007. (T p 16)
  1. Petitioner does not recall indicating his national origin on his application for a temporary position at the Murdoch Center or on the application he later submitted for permanent employment. (T p 17, 22)
  1. Petitioner was interviewed for a position at the Murdoch Center by Ken Daniel. He does not recall discussing his national origin with Mr. Daniel. (T p 17)
  1. Petitioner stated he was unaware of any other employees at the Murdoch Center who were from Trinidad or the West Indies. (T p 67)
  1. Maureen Crews, Advocate II, was involved in the investigation of the alleged abuse of JC by the Petitioner and is a citizen of the United Kingdom. Advocate Crews’ mother is Scottish and her father is Trinidadian. She and Petitioner previously had discussed the fact that Petitioner and Advocate Crews’ fathers both were from Trinidad. (T p 261)
  1. Several of Petitioner’s coworkers believed Petitioner to be a U.S. Citizen from New York and were unaware that he was from Trinidad. Petitioner was aware that coworkers believed him to be from New York and acknowledged that this was “because that’s where I’m from, New York, but I’m originally from Trinidad.” (T p 58, 71, 287, 322)
  1. Susan Conver was not aware of Petitioner’s national origin when he was disciplined. Susan Conver has family in Germany, but does not consider herself German and therefore did not question Petitioner’s national origin when she became aware that he also had family who lived outside of the United States. Petitioner previously had told Susan Conver that he grew up in New York. (T p 322)

Advocacy Investigation and Dismissal

  1. An investigation of the abuse alleged by JC was completed by Advocacy Services in accordance with policy at the Murdoch Center, which states, “an investigation of each allegation will be conducted by advocacy Services in cooperation with the appropriate manager.” (T p 205, Respondent’s Exhibit 42, 51)
  1. It was determined during the Advocacy investigation that there were discrepancies as to what had taken place between Petitioner and JC. Due to the discrepancies and a lack of witnesses to what had occurred, Petitioner was given a lie detector test under established policy. (T pp 205-208)
  1. The results of the lie detector test administered to Petitioner indicated his responses were “indicative of deception.” The lie detector test results were not admitted at hearing for the truth of the matter asserted therein, but rather for the Court to evaluate whether the employer had a rational basis for terminating him and whether the termination was reasonable or a pretext for discrimination. (T p 113, Respondent’s Exhibit 20)
  1. Respondent has used lie detector tests in the past as part of the process of investigating claims of abuse against residents at the Murdoch Center. Lie detector tests have been used in several other cases, including cases involving U.S. Citizens. Petitioner was aware of two or three other individuals being administered lie detector tests. (T p 78-80, 267-268)
  1. JC was consistent with his recollection of what had occurred between him and Petitioner on March 1, 2009 and maintained that Petitioner had abused him. On previous occasions when JC alleged abuse by staff members, JC would apologize to the staff member and recant the allegation. JC did not recant the abuse allegations he made against Petitioner, neither did he apologize to Petitioner for making the allegations. (T p 404, 418, 451)
  1. Advocacy Services substantiated that Petitioner had abused JC and, because of the substantiation of abuse, Petitioner was dismissed from his position effective March 26, 2009. (T p 205)
  1. Another employee was dismissed in March 2009 because of allegations of patient abuse. This employee, an American, never had received previous discipline and had received a very good performance appraisal prior to his disciplinary action. This employee also was subjected to a polygraph test and, as in the Petitioner’s case, there were no witnesses to the alleged abuse. (Respondent’s Exhibit 51)
  1. Another employee, a Nigerian, was dismissed during the time period relevant to Petitioner’s case. That dismissal, however, was not related to abuse allegations. (T p 71-72, Exhibit 51)

BASED UPON the foregoing findings of fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

  1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case under Chapter 126 and Chapter 150B of the North Carolina General Statutes. The parties received proper notice of the hearing in the matter. N.C. Gen. Stat. § 126-16 requires all State departments and agencies to provide for equal opportunity for employment without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition. N.C. Gen. Stat. § 126-36 states:
  1. Any State employee or former State Employee who has reason to believe that employment, promotion, training, or transfer was denied the employee . . . because of the employee’s age, sex, race, color, national origin, religion, creed, political affiliation, or handicapping condition as defined by G.S. 168A-3 . . . shall have the right to appeal directly to the State Personnel Commission.
  1. As of the date of his termination, Petitioner was not a career state employee as defined by NCGS 126-1.1 because he had not been employed in a full time permanent position for the immediately preceding 24 months. (T p 457)
  1. The burden of production in a discrimination case has been articulated by the North Carolina Supreme Court as follows:
  1. The claimant carries the initial burden of establishing a prima facie case of discrimination.
  2. The burden shifts to the employer to articulate some legitimate nondiscriminatory reason for the action taken by the employer.
  3. If a legitimate nondiscriminatory reason for rejection has been articulated, the claimant has the opportunity to show that the stated reason for the action taken was, in fact, a pretext for discrimination. North Carolina Dep’t of Correction v. Gibson, 308 N.C. 131, 137, 301 S.E.2d 78, 82 (1983). The ultimate burden of proving illegal discrimination in the action lies with the Petitioner or complainant. Id. at 138, 301 S.E.2d at 83.
  1. Courts have found numerous reasons propounded by employers to be legitimate, non- discriminatory reasons for their personnel decisions and therefore sufficient to rebut a presumption of discrimination. See, e.g., Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996) (job performance and relative qualifications are valid reasons); Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1130 (4th Cir. 1995) (good interpersonal skills and ability to lead a team are legitimate reasons); N.C. Dep’t of Correction v. Hodge, 99 N.C. App. 602, 611, 394 S.E.2d 285, 290 (1990) (promotion of a better qualified employee is a legitimate reason). “In the absence of additional evidence of discriminatory intent, use of subjective criteria in employment decisions does not alone make out a pattern or practice of discrimination.” Burrows v. Chemed Corp., 567 F. Supp. 978, 985 (E.D. Mo. 1983), aff’d, 743 F.2d 612 (8th Cir. 1984) (citations omitted). An employer can “properly take into account both the objective factor of [the selected applicant’s] outstanding performance . . . and the more subjective factors like his good interpersonal skills and his ability to lead a team.” Amirmokri, 60 F.3d at 1130.
  1. Respondent has set forth legitimate nondiscriminatory reasons for its decision to terminate Petitioner from his position at the Murdoch Center and has satisfied its burden of articulating legitimate reasons for termination of Petitioner’s employment.
  2. Once the employer introduces evidence of legitimate, nondiscriminatory reasons for its action, the legal presumption raised by Petitioner in the prima facie case is rebutted and drops out of the case. St. Mary’s Honor Center, 509 U.S. at 510-11, 125 L. Ed. 2d at 416. After the presumption is dropped from the case, Petitioner must show that Respondent’s reasons merely are a pretext. Id. at 515-17, 125 L. Ed. 2d at 418.
  1. Petitioner has not provided sufficient evidence that Respondent terminated him because of discrimination based on his national origin. Courts have recognized that an employee’s own assertions of discrimination in and of themselves are insufficient to counter substantial evidence of legitimate, non-discriminatory reasons for an adverse employment action. Williams v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989). “Standing alone . . . claims of superiority do not suffice.” Vaughn v. Metrahealth Cos., Inc., 145 F.3d 197, 202 (4th Cir. 1998) (citing Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 959 (5th Cir. 1993)). Petitioner’s evidence, taken as a whole under current case law analysis, does not overcome Respondent’s non-discriminatory reasons for its actions; Petitioner has failed to carry his legally required burden of proof under a national origin based discrimination analysis which outweighs or rebuts Respondent’s proffered reasons for its employment decision

BASED UPON the foregoing Findings of Fact and Conclusions of Law the Undersigned makes the following: