STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 09-OSP-3582
ESTHER K. DUNN, )
)
Petitioner, )
)
vs. ) DECISION
)
NORTH CAROLINA DEPARTMENT )
OF COMMERCE, DIVISION OF )
TOURISM, FILM AND SPORTS )
DEVELOPMENT, )
)
Respondent. )
THIS contested case was heard by Beecher R. Gray, Administrative Law Judge, (the “Court”) of the North Carolina Office of Administrative Hearings (the “OAH”) on April 26 and 27, 2010 at the OAH, 1711 New Hope Church Road, Raleigh, North Carolina. (Trial Transcript, volume I, cover page; Trial Transcript, volume II, cover page[1]), in response to Petitioner’s June 3, 2009 Petition for a Contested Case Hearing in this matter and in accordance with the Rules of the North Carolina Office of Administrative Hearings, 26 N.C.A.C. 3.0101, the North Carolina Rules of Civil Procedure, the North Carolina Rules of Evidence, the Orders entered by the Court in this matter, the stipulations of the parties, and applicable law.
APPEARANCES
WHEREAS the Petitioner in this matter, Esther K. Dunn, was represented in this contested case proceeding by Charles E. Monteith, Jr., Esquire, and Shelli Henderson Rice, Esquire, of the law firm of Monteith & Rice, PLLC, 422 Saint Mary’s Street, Suite 6, Raleigh, North Carolina 27605-1734 (T. 2, 288); and
WHEREAS the Respondent in this matter, the Division of Tourism, Film and Sports Development of the North Carolina Department of Commerce, was represented in this contested case proceeding by Anne J. Brown, Esquire, Special Deputy Attorney General, and I. Faison Hicks, Esquire, Special Deputy Attorney General, both of the North Carolina Department of Justice, 114 West Edenton Street, Raleigh, North Carolina 27603, Post Office Box 629, Raleigh, North Carolina 27602-0629 (T. 2, 228); and
ISSUE
WHEREAS the issue for trial in this contested case proceeding was whether the Respondent wrongfully discharged Petitioner without just cause (Petitioner’s attachment to her June 3, 2009 Petition for a Contested Case Hearing, numbered page 1, paragraph 1; T. 15-21); and
WHEREAS Respondent contended in its Prehearing Statement and at trial that it dismissed Petitioner from her employment with Respondent because Petitioner knowingly engaged in unacceptable personal conduct, as defined by 25 N.C.A.C. 1J.0614(i), to wit: that, on February 12, 2009, without authorization from Respondent or the North Carolina Correctional Institute for Women (the “Women’s Prison”), where Petitioner’s office was located and where Petitioner worked, Petitioner duplicated an official, authorized key to a high-security lock to the gates located inside the Women’s Prison, an act which Respondent contended constituted a gross breach and violation of security procedures at the Women’s Prison (Respondent’s Prehearing Statement, numbered paragraph 2 at pages 2-3; T. 15-21); and
WHEREAS Petitioner contended in her Petition for a Contested Case Hearing and at trial that: (i) she did not make or cause to be made any such duplicate gate lock key (Petitioner’s attachment to her June 3, 2009 Petition for a Contested Case Hearing at page 2; T. 272); and (ii) no one associated with Respondent or the Women’s Prison ever told her that she was not permitted and/or that she was, in fact, forbidden to make a duplicate key to the lock to the gates located inside the Women’s Prison (Petitioner’s attachment to her June 3, 2009 Petition for a Contested Case Hearing at page 2; T. 272); and
WHEREAS the parties agreed that the statutes applicable to the Court’s adjudication of the issue identified in the preceding paragraphs include N.C. Gen. Stat. §§126-1, et. seq., and N.C. Gen. Stat. §§150B-1, et seq., as well as the relevant State administrative regulations and legal decisions (Respondent’s Prehearing Statement, numbered paragraph 1 at page 1; Petitioner’s Prehearing Statement, numbered paragraph I.B. at pages 1-2); and
WITNESSES
WHEREAS the witnesses called by Respondent to testify at the trial of this contested case were: (i) Bianca Harris, the Deputy Warden of the “Women’s Prison (T. 23); (ii) Wally Wazan, the Director of Visitor Services for Respondent and the Department of Commerce employee with management and supervisory responsibility for Respondent’s Travel and Tourism Inquiry Program at the Women’s Prison (T. 47, 234-241); (iii) Doris Sayles, the Assistant Superintendent for Corrections, Custody and Operations at the Women’s Prison (T. 117); (iv) Captain Leonard Hatley, the Correctional Captain for the Women’s Prison (T. 126); (v) Lori Murrell, an employee of Respondent working at Respondent’s Travel and Tourism Inquiry Program at the Women’s Prison (see T. 168-187); and (vi) Helen McNeill, the Assistant Superintendent for Programs at the Women’s Prison (T. 190); and
WHEREAS the witnesses called by Petitioner to testify at the trial of this contested case were: (i) Esther K. Dunn, Petitioner in this contested case (T. 242), who was also cross-examined at trial by Respondent (T. 271-294); (ii) Wally Wazan (T. 234); and (iii) Captain Leonard Hatley (T. 295); and
EXHIBITS
WHEREAS, during the course of the trial of this contested case, the Court admitted into evidence the following Trial Exhibits at the request of Respondent:
(i) Respondent’s Exhibit number 1, April 22, 2010 Employee/Witness Statement Form, Doris M. Sayles, Assistant Superintendent for Custody and Security, North Carolina Correctional Institution for Women in Raleigh (T. 120-21);
(ii) Respondent’s Exhibit number 2, May 5, 2009 Memorandum from the Honorable J. Keith Crisco, Secretary of the North Carolina Department of Commerce, to Esther K. Dunn (T. 88-89);
(iii) Respondent’s Exhibit number 3, April 2, 2009 Employee Grievance Filing Form, Esther K. Dunn (T. 88);
(iv) Respondent’s Exhibit number 6, February 27, 2009 Memorandum from Wally Wazan to Esther K. Dunn Re: Dismissal Due to Unacceptable Personal Conduct (T. 81);
(v) Respondent’s Exhibit number 7, February 16, 2009 Pre-Disciplinary Conference Notification – Revised – From Wally Wazan to Esther K. Dunn (T. 79);
(vi) Respondent’s Exhibit number 8, February 16, 2009 Pre-Disciplinary Conference Notification From Wally Wazan to Esther K. Dunn (T. 79);
(vii) Respondent’s Exhibit number 9, February 16, 2009 Employee/Witness Statement Form of Captain Leonard Hatley, Correctional Captain, North Carolina Correctional Institution for Women (T. 143);
(viii) Respondent’s Exhibit number 10, February 12, 2009 Investigatory Placement with Pay Memorandum from Wally Wazan to Esther K. Dunn (T. 76);
(ix) Respondent’s Exhibit number 11, February 12, 2009 North Carolina Department of Corrections Incident Report by Assistant Superintendent Helen L. McNeill (Investigating Officer: Captain Leonard A. Hatley) (T. 149);
(x) Respondent’s Exhibit number 12, February 12, 2009 North Carolina Department of Corrections Internal Investigation, Esther K. Dunn (T. 138);
(xi) Respondent’s Exhibit number 13, February 12, 2009 Employee/Witness Statement Form, Esther K. Dunn (T. 140-41);
(xii) Respondent’s Exhibit number 14, February 12, 2009 North Carolina Department of Corrections Internal Investigation, Lori Murrell (T. 140);
(xiii) Respondent’s Exhibit number 15, February 12, 2009 Employee/Witness Statement Form, Lori Murrell (T. 141);
(xiv) Respondent’s Exhibit number 16, February 12, 2009 North Carolina Department of Corrections Internal Investigation, Jade Feliciano [misdated “1/12/09”] (T. 142);
(xv) Respondent’s Exhibit number 17, February 11, 2009 Written Warning for Unsatisfactory Job Performance from Wally Wazan to Esther K. Dunn (T. 76);
(xvi) Respondent’s Exhibit number 19, May 7, 2008 Email Message from Assistant Superintendent Helen McNeill to Many Recipients, Including Esther K. Dunn (T. 197);
(xvii) Respondent’s Exhibit number 20, August 17, 2007 Email Message from Assistant Superintendent Helen McNeill to Esther K. Dunn (T. 204); and
WHEREAS, during the course of the trial of this contested case, the Court admitted into evidence the following trial Exhibits at the request of Petitioner:
(i) Petitioner’s Exhibit number 1, North Carolina State Government, Performance Management Program Work Plan, Esther K. Dunn, May 26, 2005 (Bates stamp numbers 000040-000044) (T.306);
(ii) Petitioner’s Exhibit number 2, North Carolina State Government, Performance Management Program Work Plan, Esther K. Dunn, May 26, 2005 (Bates stamp numbers 000045-000048) (T.306);
(iii) Petitioner’s Exhibit number 3, North Carolina State Government, Performance Management Program Work Plan, Esther K. Dunn, May 26, 2005 (Bates stamp numbers 000049-000053) (T.306);
(iv) Petitioner’s Exhibit number 4, Interim Performance Review, Esther K. Dunn, dated October 27, 2008 (“Period From: May 1, 2008 to October 31, 2008”) (Bates stamp number 000054) (T.306);
(v) Petitioner’s Exhibit number 5, North Carolina State Government, Performance Management Program Work Plan, Esther K. Dunn, “Effective Date: May 2006” (“Appraisal is for period of: May 1, 2006 to April 30, 2007”) (Bates stamp numbers 000056-000060) (T.306);
(vi) Petitioner’s Exhibit number 6, North Carolina State Government, Performance Management Program Work Plan, Esther K. Dunn, May 1, 2008 (Bates stamp numbers 000061-000065) (T.306);
(vii) Petitioner’s Exhibit number 12, “North Carolina Department of Commerce, Office of Human Resources, Documentation Regarding Ms. Esther K. Dunn, Inquiry Program Manager, Prepared by Mr. Wally Wazan, Director of Visitor Services, Attention: Ms. Toni Stuckey, Employee Relations/Staff Development, and Mr. Bryan Gupton, Director of Operations and Industry Relations,” undated (Bates stamp numbers 000161-000165) (T.306); and
WHEREAS the Court did not rely upon or take into consideration in reaching its decision in this matter the contents of any documents, records or proposed Trial Exhibits except for those that were actually admitted into evidence as Trial Exhibits during the trial of this contested case proceeding, as identified above; and
STIPULATIONS
WHEREAS the parties stipulated on the record prior to the beginning of the trial of this matter that:
1. Respondent’s Trial Exhibits, numbers 1 through 21, are true and correct copies of the originals of said documents;[2]
2. Petitioner’s Trial Exhibits, numbers 1 through 14, are true and correct copies of the originals of said documents;[3] and
3. Petitioner commenced her full-time employment with the North Carolina Department of Commerce in 2005; was assigned in 2007 to work full-time for the Department of Commerce at the Department’s tourism facility located at the North Carolina Correctional Institution for Women; and was dismissed from her employment with the Department of Commerce in February 2009. Accordingly, at the time of her dismissal by Respondent, Petitioner was a career employee of the Government of the State of North Carolina. (Joint Trial Stipulation, read into the record on April 26, 2010, T. 13-14, and filed with the OAH on April 27, 2010); and
WHEREAS the parties further stipulated prior to the beginning of the trial of this matter that “notice of [the] hearing [of this contested case proceeding] [was] proper” (T. 9-10); and
THE COURT, having carefully considered all of the competent, admissible testimony and all of the other competent, admissible evidence that was admitted and received at trial, as well as the parties’ pleadings, briefs, written summations and other papers and arguments, hereby makes the following Findings of Fact and Conclusions of Law based upon the competent, admitted evidence that the Court believes is credible and upon the applicable law:
I. FINDINGS OF FACT
The Petitioner’s Employment History With the Respondent
1. The parties received notice of hearing, by certified mail, more than 15 days prior to the hearing date.
2. Petitioner began working for Respondent as a temporary employee in March 2004 and became a permanent employee of Respondent in March 2005. (T. 242-43)
3. On August 1, 2007, Petitioner began working for the North Carolina Department of Commerce’s Division of Tourism, Film and Sports Development as the Supervisor of its Inquiry Program. (T. 248)
The Inquiry Program
4. The Inquiry Program, also known as the 1-800 VISITNC Call Center, is a telephone bank call center operation that is designed to provide travel and tourism information to people who are or may be interested in vacationing in or traveling to North Carolina. (See www. nccommerce.com/en/TourismServices, “VISITNC.com)
5. Among other things, the Inquiry Program facilitates and promotes tourism in the State. (See www. nccommerce.com/en/TourismServices, “VISITNC.com)
6. For the past 21 years, the Inquiry Program has been operated primarily from the Women’s Prison. (See www. nccommerce.com/en/TourismServices, “VISITNC.com; T. 45-46)
7. The Inquiry Program is comprised of three components: (i) the Call Center, to which potential visitors to North Carolina call in, seeking information and assistance regarding travel and tourism opportunities in North Carolina; (ii) the Fulfillment Section, where packages of travel and tourism literature, brochures and other items are assembled, placed into parcels and mailed from the Fulfillment Section to potential visitors to North Carolina who have telephoned the Call Center and asked for such packages; and (iii) the warehouse, where items such as travel brochures and other tourism literature and supplies are stored for use by the Inquiry Program. (See www. nccommerce.com/en/TourismServices, “VISITNC.com)
8. The people who operate the telephones at the Call Center are all inmates at the Women’s Prison who fully have been trained to answer the entire range of questions concerning travel and tourism opportunities in North Carolina. (T. 32, 47, 48; See www. nccommerce.com/en/TourismServices, “VISITNC.com)
9. By using inmates to perform this function, the North Carolina Department of Commerce saves the State’s taxpayers hundreds of thousands of dollars each year, provides inmates with real-world job skills and valuable work experience and gives inmates the opportunity to earn highly prized jobs that help to improve the quality of their lives while they are incarcerated. (See www. nccommerce.com/en/TourismServices, “VISITNC.com)
10. The telephone lines at the Call Center operate 24 hours per day, seven days per week. (See www. nccommerce.com/en/TourismServices, “VISITNC.com)
11. Inmate telephone operators working at the Call Center answer incoming telephone calls from 8:00 a.m. through 8:00 p.m., Monday through Friday of each week, from 8:00 a.m. through 5:00 p.m. on Saturday and Sunday of each week and from 9:00 a.m. through 5:00 p.m. on holidays. (See www. nccommerce.com/en/TourismServices, “VISITNC.com)
12. The Call Center’s automated voice-mail telephone answering system receives and responds to incoming telephone calls during off hours. (See www. nccommerce.com/en/TourismServices, “VISITNC.com)
13. The Respondent’s extensive travel and tourism advertising campaign encourages potential visitors to the State to seek more information about North Carolina from www.visitnc.com and 1-800-VISITNC. (See www. nccommerce.com/en/TourismServices, “VISITNC.com)
14. As a result, in 2008, inmates at the Call Center answered nearly 50,000 telephone calls from potential visitors to North Carolina. (See www. nccommerce.com/en/TourismServices, “VISITNC.com)