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STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF NEW HANOVER 00 OSP 1096

WARREN E. PIGOTT, )

Petitioner, )

)

v.  )

) RECOMMENDED DECISION

NORTH CAROLINA )

DEPARTMENT OF CORRECTION, )

Respondent. )

This case was heard by Administrative Law Judge Beecher R. Gray. Evidence was presented on May 17, 2001 in Southport, NC, May 24, 2001 in Carolina Beach, NC and August 16, and 17, 2001 in Bolivia, NC. Oral arguments were heard on September 7, 2001 in Raleigh, NC. Petitioner was represented by A. Griffin Anderson, of Anderson & Hogston, L.L.P. Respondent was represented by J. Phillip Allen, Assistant Attorney General.

Petitioner called Karen Brown, Chris Tart, Larry Bramlett, Clyde Joyner, William Barbour, and himself as witnesses. Respondent called Karen Brown, Dale Aiken, Bob Kinchen, Chris Tart, Charlie Pridgen, Percy Hartley and Steve Sutton as witnesses. Petitioner’s Exhibits 1 and 10 through 13 were admitted into evidence, and Petitioner’s Exhibit 14 was admitted under an offer of proof. Respondent’s Exhibits 1 through 15, 17 through 19, 21 through 23 and 25 through 28 were admitted into evidence, and Respondent’s Exhibits 20,24 and 29 were admitted under offers of proof.

ISSUE

Did Respondent have just cause to dismiss Petitioner based on allegations that Petitioner bought a box of flex duct for a co-worker’s personal use and charged it to the State?

MOTIONS

Following the call of the case, Petitioner moved to dismiss Respondent’s charge that Petitioner submitted false time reports on the grounds that the dismissal letter (R. Exh. 15) did not meet the specificity requirement of N.C.G.S. § 126-35 because it did not list any specific times on any specific dates for which the Petitioner submitted a time sheet and which Respondent alleged Petitioner did not in fact work. Respondent opposed the motion, arguing that merely bracketing a time period provided Petitioner sufficient notice under N.C.G.S. § 126-35 and that Petitioner had all the specificity he needed in order to prepare a defense to each charge so as to attempt to meet his burden of disproving the allegations.

The undersigned judge took Petitioner’s motion under advisement and allowed Respondent to present evidence on the charge of submitting false time reports. At the close of Respondent’s evidence, Petitioner renewed his motion, and the parties renewed their arguments. After considering the motion and arguments, the undersigned judge granted the motion but allowed Respondent’s evidence on the charge to remain in the record so that it would be available for review.

FINDINGS OF FACT

1.  Petitioner was an HVAC (Heating, Ventilation, and Air Conditioning) Technician employed by Respondent’s Central Engineering Division. Petitioner was first employed by Respondent in 1992 as a contract employee. In 1997, Respondent made Petitioner a full time employee.

2.  Petitioner had worked in the HVAC field for approximately 40 years, having never been discharged from any place of employment for allegations of wrongdoing. (Testimony of Warren Piggott)

3.  While working for Respondent, Respondent granted Petitioner the right to purchase materials on Respondent’s account without prior approval. Petitioner routinely purchased materials both for his division, mechanical, as well as for the general and electrical divisions. During his approximately eight years working for Respondent, no allegations were ever made regarding Petitioners purchase of materials with State funds.

4.  During 1999 Petitioner worked on a project in Apex converting a factory building into offices (the “Apex job”).

5.  Larry Bramlett was Petitioner’s direct supervisor and was ultimately responsible for HVAC work at the Apex job.

6.  Petitioner’s work product was of high quality and Petitioner had as much, if not more, knowledge regarding HVAC as anyone at the Apex job. (Testimony of Dale Aiken, Larry Bramlett, Percy Hartley, Steve Sutton)

7.  Flex duct was used as the Apex job to connect larger components of the HVAC system. The flex duct required for the Apex job was not predetermined, but was purchased as the need arose as determined by those actually working on the job site. (Testimony of Chris Tart)

8.  Petitioner made determinations about the need for flex duct for the Apex job and would acquire the needed materials on his own. (Testimony of Chris Tart)

9.  Petitioner made two purchases of 16” flex duct from Joyner Supply in 1999 for the Apex Job. The first purchase was made June 11, 1999, and the second purchase was made on October 15, 1999. Petitioner charged both of those purchases to Respondent.

10.  Petitioner purchased the box of flex duct on June 11, 1999 in order to connect two fresh air handling units with the fresh air intake vents on the roof of the building. Each connection required approximately 11 feet of flex duct. Two approximately 11 foot sections of flex duct were cut out of the 25 feet of flex duct that came in the box purchased June 11, 1999 and hanged down from the holes in the ceiling. The two fresh air handlers came in and had square or rectangular openings. After installation, Petitioner and Larry Bramlett determined that flex duct was not appropriate for this installation replaced it with hard duct. The two approximately 11 foot sections were returned to the warehouse. (Testimony of Larry Bramlett, Testimony of Warren Piggott, Apex Job plans)

11.  Petitioner later sought to retrieve the flex duct he had returned to the warehouse, but it could not be located. Petitioner then purchased another box of flex duct on October 15, 1999 in order to connect the main duct work with 11 grills marked “W” on Sheet M-1 of the Apex plans, and as identified on Sheet M-3 of the Apex plans. (Testimony of Larry Bramlett, Testimony of Warren Piggott, Apex Job plans)

12.  A C&MM Warehouse Receiving/Delivery Form from Respondent, dated October 28, 1999 shows shipment of 11 24 x 24 Sidewall Return Grilles. A C&MM Warehouse Receiving/Delivery Form from Respondent, dated November 1, 1999 shows shipment of 11 24 x 24 x 16 Square to Rounds. Chris Tart testified that he ordered these materials for the Apex job and that these materials were consistent with the “W” type grills required by the plans, and that the plans called for the use of 16” flex duct to connect the grills with the main duct work. Mr. Tart did not himself acquire 16” flex duct to complete installation of the grills, since that type of acquisition would have been left to Petitioner under his delegated authority. (Testimony of Chris Tart, Testimony of Warren Piggott, C&MM Warehouse Receiving/Delivery Form dated 10/28/99, C&MM Warehouse Receiving/Delivery Form dated11/1/99)

13.  The “W” type grills were to be installed in the ceiling area of the Apex job. Originally a “drop type” suspended ceiling was contemplated for this area. In the case of a suspended ceiling the duct work connecting the main duct work with the grills would have been concealed behind the suspended ceiling panels. A decision was made to not install a suspended ceiling, and leave the area open. Petitioner followed the plans and supervised inmates who connected the main duct work to the grills using 16” flex duct. On average each of the 11 connections required two feet of duct work to connect the main duct work to the “W” grills and the Square to Rounds that allow round duct work to transition to a square grill. Under Petitioner’s supervision, 11 approximately 2’ sections of flex duct were cut from the 25’ piece which came in the box purchased on October 15, 1999 by Petitioner. After installation Larry Bramlett and Petitioner inspected the installation and determined that the exposed use of flex duct was not acceptable and decided that hard duct should be used instead. Under Petitioner’s direction, the flex duct was replaced with hard duct and the 11 pieces of flex duct were discarded. (Testimony of Larry Bramlett, Testimony of Warren Piggot, Apex Job Plans)

14.  In October of 1999, after Petitioner’s purchase of the flex duct for use in installing the “W” grills, on approximately October 23, 1999, Petitioner purchased one additional box of 16” flex duct from Joyner Supply. Petitioner did not pay for this box, nor did he charge that box to Respondent. Petitioner had been a customer of Joyner supply for almost four decades. As a trusted and valued customer, Joyner would give, and in this case did give, to Petitioner, the box of flex duct without receiving payment. Joyner recorded the transaction on a “hold ticket,” to be paid by Petitioner at a later date. Petitioner testified that he eventually paid Joyner Supply for this box of flex duct and the Mr. Bob Kinchen paid him for it. Mr. Kinchen testified that he never had paid Petitioner for the flex duct. Petitioner purchased the box to give to Mr. Bob Kinchen. Mr. Kinchen’s daughter needed the flex duct to repair her trailer home, which had been damaged in hurricane Floyd. Mr. Kinchen was unable to find the necessary duct and asked Petitioner to help. Petitioner agreed, acquired the needed box of flex duct, and transported it to the Apex job site where he left it in a common area, open to others, for Mr. Kinchen to pick up. Mr. Kinchen did in fact pick up the flex duct and deliver it to his daughter for repair of her trailer home. (Testimony of Bob Kinchen, Testimony of Warren Piggott)

15.  On February 16, 2000, three to four months after the purchases of flex duct in 1999, without prior warning, and without the benefit of counsel, Petitioner was called in and confronted by Respondent with allegations regarding flex duct purchases from 1999. On February 17, 2000 Petitioner was re-interviewed. Petitioner stated during these interviews that he wasn’t absolutely sure about anything that had happened in the fall of 1999, but said he did buy a box of flex duct for Mr. Kinchen, and that he had not used State funds to pay for that box. At that meeting Petitioner was asked if he had a receipt and Petitioner responded that he did not have one at that time, although he thought he had had one. (Testimony of Warren Piggott, Testimony of Dale Aiken, Testimony of Karen Brown)

16.  After the February 16 and 17 meetings, Petitioner went to Joyner Supply and acquired what he considered to be a “hold ticket” documenting his acquisition of the flex duct for Mr. Kinchen on his own account, not on the State’s. Petitioner presented this document to Respondent at his pre-dismissal conference on April 20, 2000, along with the C&MM Warehouse Receiving/Delivery Forms documenting the delivery of 11 grills and 11 square to rounds at approximately the same time that Petitioner had acquired the box of flex duct on Respondent’s account for installation of those grills and square to rounds. (Testimony of Warren Piggott, Testimony of Dale Aiken, Testimony of Karen Brown, Joyner document present by Warren Piggott at pre-dismissal conference, two C&MM Warehouse Receiving/Delivery Forms)

17.  Over the more than 30 year relationship with Joyner Supply, Petitioner had routinely been allowed to acquire materials on “hold tickets.” A box of 16” flex duct retails for $40.70 at Joyner Supply. In 1999 Joyner Supply was transacting approximately $400,000 worth of sales per month. Mr. Joyner, owner of Joyner Supply, testified that it is entirely possible that a $40.70 transaction, originating with a hold ticket, would fail to be entered in Joyner’s computer system. No record could be found in Joyner’s computer system to support Petitioner’s personal purchase of the box of flex duct he purchased for Bob Kinchen. However, Mr. Joyner testified that he had never known anyone to question Petitioner’s honesty or integrity in the over thirty years that they had known each other and done business together. Mr. Joyner had no problem with Petitioner picking up the box of flex duct on a hold ticket, whether the actual ticket ever was found, and no problem with issuing a cash receipt showing that Petitioner had satisfied Joyner Supply regarding the purchase price of that box of duct. Mr. Joyner exhibited full confidence that Petitioner had acquired and paid for the box of flex duct in the manner testified to by Petitioner. (Testimony of Clyde Joyner, Joyner Supply Invoice # 356084)

18.  At the time of dismissal Petitioner’s salary was $3100 per month. Despite Petitioner’s efforts, and due to the negative contents in Petitioner’s personnel file with Respondent, Petitioner was not able to find full-time employment until June 4, 2001. Eleven months passed between Petitioner’s dismissal date and his start of the new job. During that time Petitioner did receive unemployment benefits of $265 for 27 weeks. In addition, Petitioner was able to find part-time employment as a security guard for which he received total compensation of $840. Therefore, Petitioner’s total monetary loss due to dismissal was $26,105.

19.  Petitioner was unrepresented until the fall of 2000. At that point Petitioner acquired the services of attorney A. Griffin Anderson, with Anderson & Hogston, L.L.P. Mr. Anderson has reasonably spent 45 hours representing Petitioner in this matter. A reasonable fee for an attorney in this type of matter is $150 per hour. Therefore, a reasonable attorney’s fee for Petitioner is $6,750.

20.  Two sets of allegations were made against Petitioner. The undersigned Judge found that the allegation other than those regarding to the purchase of flex duct did not meet the specificity requirements of N.C.G.S. § 126-35. The undersigned Judge granted Petitioner’s motion to dismiss any allegations other than those regarding the purchase of 16”flex duct paid for by Respondent and converted to personal use.