STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ANSON 01 OSP 1282

Darryl Burr
Petitioner
vs.
N. C. Department of Correction
Respondent / )
))
)))) / DECISION

THIS MATTER came on to be heard before the Senior Administrative Law Judge, Fred G. Morrison Jr., on October 25, 2001, on Respondent’s Motion for Summary Judgment. Upon review of the pleadings, the motions, the responses, the affidavits and documents submitted in support thereof, arguments of counsel, and the law, the undersigned finds that the following facts are undisputed, makes the following conclusions of law, and renders the following decision on the Respondent’s Motion for Summary Judgment:

APPEARANCES

Petitioner: Roger W. Rizk

6047 Nations Ford Road

Charlotte, North Carolina 28217

Respondent: Buren R. Shields, III

Assistant Attorney General

N. C. Department of Justice

P. O. Box 629

Raleigh, North Carolina 27602

ISSUE

Did Petitioner commit any one act of misconduct which constituted Unacceptable Personal Conduct within the meaning of State Personnel Commission regulations and, therefore, provided “just cause” within the meaning of N.C.G.S. § 126-25 for his dismissal from State employment?

FINDINGS OF FACT

1. Petitioner has been in the continuous employment of the NCDOC since August 26, 1996, and of the Division of Correction Enterprises (“CED”) since December 9, 1998. At the time of the incidents underlying his dismissal, he was employed at the CED Metal Products Plant (“MPP”) situated within Brown Creek Correctional Institution (BCCI”) in Polkton, North Carolina.

2. By Dismissal Letter, dated May 11, 2001, and served on Petitioner that same day, he was dismissed from State employment effective that date. The Dismissal Letter described actions constituting four separate incidents of misconduct, each of which NCDOC viewed as Unacceptable Personal Conduct (“UPC”) and alone sufficient to require his dismissal. See Document Constituting Agency Action.

3. Petitioner appealed his dismissal under the NCDOC internal grievance system to the NCDOC Employee Relations Committee (“ERC”) and, by letter dated July 6, 2001, Petitioner was notified that the Secretary, NCDOC, had upheld the dismissal and of his appeal rights to the Office of Administrative Hearings (“OAH”). On July 31, 2001, Petitioner filed his Petition for Contested Case Hearing with the OAH asserting that NCDOC lacked any “just cause” for his dismissal.

4. On January 30, 2001, Mr. Mike Baldwin, Director II, Furniture and Metal Projects Operations, CED, received a complaint from Charles Cummings, a CED employee at MPP, questioning the authenticity of a Memorandum on official NCDOC stationery and purportedly authored by the Director, CED, Mr. James G. Godwin. This Memorandum asserted the receipt of information by the Director sufficient to warrant testing of Mr. Cummings at the workplace for alcohol consumption and directed him to take such a test. R. Ex. 1, Affidavit of Michael T. Baldwin (“Baldwin Aff.”), ¶¶ 2 - 4.

5. The Memorandum was entirely false. There had been no report of alcohol abuse by Mr. Cummings received in the Director’s Office. Mr. Godwin had not directed or authorized a workplace alcohol abuse test of Cummings or the use of official State stationery for the communication. Mr. Godwin directed Mr. Baldwin and Ms. Gail Harrington, CED Personnel Technician, to conduct an official investigation into this misconduct. R. Ex. 1, Baldwin Aff., ¶ 5; R. Ex. 2, Affidavit of James G. Godwin (“Godwin Aff.”), ¶ 6.

6. During the course of this investigation, CED uncovered and documented what it concluded was a pattern of harassment and misconduct directed toward Mr. Cummings, a Native American. In addition to the alcohol testing incident, at least one other incident, the “Indian Princess” poster, was considered racially discriminatory by CED. R. Ex. 1, Baldwin Aff., ¶ 5.

7. During the investigation, Mr. Cummings produced a “poster” making fun of him as “Truck Driver of the Year.” The poster included pictures of Mr. Cummings and his immediate supervisor, Mr. Napier, superimposed on a photocopied picture of a forklift slipping off the back of a truck. It also included a written text insinuating that Mr. Cummings did not know how to safely operate a forklift. Mr. Cummings stated that these posters had been posted in numerous places throughout the MPP and he had to remove them himself. This included in the plain view of the inmates, over whom Mr. Cummings was required to exercise discipline and control. R. Ex. 1, Baldwin Aff., ¶ 7.

8. Petitioner admitted that he had participated in this harassment incident in two ways: (a) he had helped construct the “Truck Driver of the Year” poster in that the writing on the poster was his; and (b) he had placed a copy of the poster on Mr. Cummings’ desk at the MPP. Petitioner admitted this during the NCDOC internal investigation and also in his grievance hearing before the ERC. Petitioner did not deny this participation at the hearing on Respondent’s Motion for Summary Judgment. Respondent does not claim that Petitioner otherwise “posted” this poster. R. Ex. 1, Baldwin Aff., ¶ 8; R. Ex. 3, Aikens Aff., Ex. A. thereto, ERC Hearing Report, p. 4.

9. Petitioner offers three reasons why Respondent NCDOC should be precluded from treating his participation in this harassment event as UPC: (a) in Petitioner’s opinion, he did not have “major culpability” in the incident; (b) he did not “post” the poster “in numerous places;” and (c) the harassment was intended as a “lighthearted joke.” Petitioner’s verified Opposition to Summary Judgment, p. 6.

10. During the investigation, Mr. Cummings also produced evidence of a second harassment incident against him, i.e., a “poster” making racially derogatory remarks about him as a Native American. This “Indian Princess” poster was constructed from a photocopied magazine page advertising purchase of a Native American Bride for two payments of $19.99. The words “An Exotic Indian Princess” and “Yes! Please enter my reservation for Swirling Waters” were highlighted. Using a technique similar to that used to construct the “Truck Driver of the Year” poster, a photograph of Mr. Cummings’ head and neck had been cut out and superimposed on the shoulders of the pictured Indian princess. Mr. Cummings told investigators that this racial poster had been posted throughout MPP, including on the inmate bulletin board, and he alone had removed six copies from various locations. He also stated that, during the time that the poster was up on the inmate bulletin board, he saw a group of inmates gathered around it laughing and, when he went to remove the poster, an inmate called out “Hey squaw.” R. Ex. 1, Baldwin Aff., ¶ 9.

11. During the investigation, Mr. Darrell Martin told investigators that he saw Inmate William Linker making copies of the “Indian Princess” poster. In response to the investigators’ question “Do you know who did place the photograph of Mr. Cummings over the face of this (poster) prior to Inmate Linker making copies of it?”, Mr. Martin responded “Yes sir, it was Darryl Burr (Petitioner).” At the ERC hearing, when asked on what this answer was based, Mr. Martin stated that, when he questioned Inmate Linker about who had put Cummings’ picture on the poster, Linker told him it was the Petitioner and Mr. Martin believed Linker when he said that. Mr. Martin stated there was another reason he knew the Petitioner had aided the construction of this poster. He (Martin) was the one who had come up with the Indian princess magazine advertisement and he gave it to Petitioner to use in the harassment. The ERC noted that this was consistent with Mr. Martin’s testimony during the internal NCDOC investigation regarding this incident. R. Ex. 1, Baldwin Aff., ¶ 10; R. Ex. 3, Aiken Aff., Exhibit A thereto, ERC Hearing Report, p. 5.

12. As to his participation in this harassment event, Petitioner simply denies any participation in “preparation of” the “Indian Princess” poster. He does not offer any explanation why Inmate Linker would name him to Mr. Martin as the one pasting Cummings’ picture on the poster. Neither does he explain how the underlying Indian princess magazine article got from him to the person who incorporated it into the poster. Petitioner’s verified Opposition to Summary Judgment, Facts in Dispute, ¶ 3.

13. As to the third harassment event, the NCDOC/CED investigation revealed that a number of MPP personnel had participated in creating the false alcohol testing memorandum and in attempting to convince Mr. Cummings that it was a legitimate directive from the Director, CED. Among other things, the investigation revealed that the memorandum was passed around among several MPP co-workers of Cummings for suggestions regarding authenticity before it was finalized and presented to Mr. Cummings. Mr. Cummings, a Native American, was the only MPP employee to whom this “fake” alcohol test demand was presented. R. Ex. 1, Baldwin Aff., ¶ 11.

14. During the investigation, Mr. William Hanna admitted to investigators that he was a participant in the fake “Alcohol Memorandum.” He identified Petitioner to investigators as one of those who read the memorandum during its circulation for authenticity suggestions prior to it being presented to Mr. Cummings. Mr. Hanna further told investigators that he initiated the incident by asking Mr. Cummings if he had taken his alcohol test yet. Mr. Hanna told investigators that he then called Petitioner and told him to tell Mr. Martin that “the ball was rolling . . . ,” meaning that everything was set to actually give the false Memorandum to Cummings. R. Ex. 1, Baldwin Aff., ¶ 12 and R. Ex. 3, Affidavit of Fred Aikens (“Aiken Aff.”), Exhibit A thereto, ERC Hearing Report, p.2.

15. During the investigation, a second witness, Mr. Darrell Martin, told investigators that Petitioner had participated in this harassment. During his ERC hearing, Mr. Martin told NCDOC representatives that Petitioner had aided in the deception of Cummings regarding the Memorandum by positioning a drug testing kit identical to the one presented to Cummings on his desktop at a strategic time. The significance of this was that, as the only other CDL licensed employee subject to random drug testing, Cummings was likely to check the authenticity of the directive with Petitioner. R. Ex. 1, Baldwin Aff., ¶ 14.

16. Petitioner admitted participating in this “hoax” in two ways to NCDOC investigators and later at his ERC hearing. He admitted that he passed Mr. Hanna’s message on to Mr. Martin to have the Memorandum presented to Cummings. Petitioner admitted that, before the false Memorandum was presented to Cummings, he had been given a test kit identical to the one later given to Cummings with the Memorandum. He had received this test kit on the previous Friday. When the Memorandum was presented to Cummings on Monday morning, Petitioner admitted that he positioned his identical test kit in plain view on his desk. Later in the morning, Cummings came to Petitioner to check and see if the Memorandum was genuine. Petitioner knew that was what Cummings was doing. Petitioner admitted that, when Cummings made this inquiry: (a) “his” test kit was in plain view on his desk; and (b) he told Cummings that he, too, had been given the same test kit. R. Ex. 1, Baldwin Aff., ¶ 13; R. Ex. 3, Aiken Aff., Exhibit A thereto, ERC Hearing Report, pp.2 and 4; Petitioner verified Opposition to Summary Judgment, Facts in Dispute, ¶ 5.

17. At the ERC hearing, Mr. Cummings testified that, after his “discussion” with the Petitioner, he (Cummings) still was not convinced that the Memorandum was genuine, so he went to ask his supervisor, Mr. Napier, about it. When Mr. Napier told him that it was not and that his “co-workers” were playing a joke on him, Mr. Cummings became very upset and immediately reported the incident to Mr. Baldwin. R. Ex. 3, Aiken Aff., Exhibit A thereto, ERC Hearing Report, p.4. See R. Ex. 2, Godwin Aff., Exhibit A thereto, Dismissal Letter, p. 2.

18. At the ERC hearing, Petitioner also admitted that he “knew about” the False Memorandum “joke” and the falsified memorandum as they were being “developed.” However, he denied that he actually “saw” the memorandum “before it was given to” Cummings. Petitioner also stated that he never actually told Cummings that “he had to take the test.” Petitioner also stated, for the first time, that he told Cummings that “he thought the memo was bull.” Petitioner offers no explanation as to why Mr. Cummings subsequently went to his supervisor, Mr. Napier, still inquiring about the memorandum’s legitimacy and waited to report the incident until Napier told him it was a co-worker prank. R. Ex. 3, Aiken Aff., Exhibit A thereto, ERC Hearing Report, p.4.

19. During the investigation, Mr. Napier, Mr. Cummings’ immediate supervisor, also provided investigators a certified statement about a fourth incident, the threat charge against Petitioner. Mr. Napier stated that, at approximately 12 Noon on 1/30/01, Petitioner approached Mr Napier on the work site, the MPP, and asked if he was Cummings’ supervisor. This was immediately after Mr. Cummings’ complaint about the three harassing incidents had caused the CED/Director Godwin to start the internal NCDOC/CED investigation into harassment of Cummings. When Mr. Napier confirmed that he was Cummings’ supervisor, his certified statement quotes Petitioner as saying “I want you to tell Cummings that he so much as raises his voice to me, I go upside his head.” Mr. Napier told investigators that he told Petitioner “that he couldn’t do that because it would jeopardize his (Petitioner’s) job.” Mr. Napier told investigators that Petitioner acknowledged this, but said that “he wanted me (Napier) to tell Cummings what he (Petitioner) said.” Mr. Napier then went to Mr. Cummings at the work site and repeated Petitioner’s threat directly to him. R. Ex. 1, Baldwin Aff., ¶ 15; R. Ex. 3, Aiken Aff., Exhibit A thereto, ERC Hearing Report, p. 3.