STATE OF NORTH CAROLINAIN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF BERTIE04 OSP 1518

Emily Flores
Petitioner
vs.
College of Agriculture and Life Sciences
NC State
Respondent / )
))
)
)))) / FINAL DECISION IN PART
SUMMARY JUDGMENT IN PART

Upon consideration of Respondent’s Motion for Summary Judgment and Motion to Dismiss, Petitioner’s response thereto, the parties’ oral arguments on October 2, 2006, and for good cause shown, the undersigned hereby GRANTS Respondent’s Motion as follows:

APPEARANCES

For Petitioner:Emily Flores, Pro Se

107 Britton Street

Colerain, North Carolina27924

For Respondent:Thomas J. Ziko

Special Deputy Attorney General

N.C. Dept. of Justice

P.O. Box 629

Raleigh, North Carolina27602

ISSUE

Are there any genuine issues of material fact, and is Respondent entitled to Summary Judgment as a matter of law?

FINDINGS OF FACT

1.On May 3, 2004, Petitioner began employment on a probationary term, as an Extension Secretary II at the BertieCountyCooperativeExtensionCenter.

2.On August 27, 2004, Respondent’s Bertie County Extension Director, Richard Rhodes, terminated Petitioner’s probationary employment for unsatisfactory job performance during her four months of employment.

3.On September 16, 2004, Petitioner filed a petition for a contested case hearing with the Office of Administrative Hearings alleging that Rhodes had terminated her without just cause, and had retaliated against her for expressing her religious views at work.

4.The undisputed evidence showed that Petitioner expressed her views on religion to several coworkers in the workplace, and was terminated from employment. However, Petitioner failed to present any evidence showing a causal connection between her expressing her views and her termination. While Petitioner believed that Linda Boyette, her immediate supervisor, talked to Mr. Rhodes about Petitioner’s expressing her views on religion in the workplace, Petitioner had no personal knowledge of conversations between Boyette and Rhodes. In her deposition, Petitioner admitted that she had no evidence that Mr. Rhodes had any knowledge of her expressing her views on religion in the workplace.

5.In contrast, Respondent showed, by affidavit, that Rhodesaffirmatively deniedknowing that Petitioner had expressed her views on religion in the workplace.

CONCLUSIONS OF LAW

1.This contested case is subject to dismissal pursuant to N.C. Gen. Stat. § 1A-1, Rules 56 of the Rules of Civil Procedure, N.C. Gen. Stat. §§ 150B-33(b)(3a) and -36(d); and 26 NCAC 3 .0105 and .0114.

Discharge Without Just Cause Claim

2.N.C. Gen. Stat. § 126-5(c)(1)(2004) states in relevant part:

Except as to the policies, rules, and plans established by the Commission pursuant to G.S. 1264(1), 1264(2), 1264(3), 1264(4), 1264(5), 1264(6), and 1267, and except as to the provisions of Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to:

(1) A State employee who is not a career State employee as defined by this Chapter.

3.N.C. Gen. Stat. § 126-51.1 provides:

For the purposes of this Chapter, unless the context clearly indicates otherwise, "career State employee" means a State employee who:

(1)Is in a permanent position appointment; and

(2)Has been continuously employed by the State of North Carolina in a position subject to the State Personnel Act for the immediate 24 preceding months.

4.N.C. Gen. Stat. § 126-35 specifically states:

No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.

5.Since Petitioner was a probationary employee for only four months when Respondent terminated her from employment, Petitioner was not a “career state employee” as that term is defined in N.C. Gen. Stat. § 126-51.1. Since Petitioner was not a career state employee, she was not entitled to bring a discharge without just cause claim under N.C. Gen. Stat. § 126-35 before the Office of Administrative Hearings.

6.For the foregoing reason, the Office of Administrative Hearings lacks subject matter jurisdiction to hear Petitioner’s claim that she was discharged without just cause, and the undersigned hereby dismisses that claim.

Discharge Based On Religious Retaliation Claim

7.A prima faciecase of retaliation is established when an employee shows: (1) the employee engaged in protected activity; (2) she suffered an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse action. Bryant v. Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536, 543 (4th Cir. 2003); King v. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003).

8.Rule 56(c) of the North Carolina Rules of Civil Procedure provides that summary judgment will be granted:

[If] the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.

Affidavits supporting or opposing a motion for summary judgment “shall set forth such facts as would be admissible in evidence ...” Rule 56(c).

9.The burden of establishing a lack of any triable issue resides with the movant. Pembee Mfg. Corp. v. Cape Fear Constr. Co. 313 N.C. 488, 329 S.E.2d 350 (1985). Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to forecast evidence demonstrating specific facts, as opposed to allegations, that he can at least establish a prima facie case at trial. Gaunt v. Pittaway, 139 N.C.App. 778, 784-85, 534 S.E.2d 660, 664 (2000), cert. denied, 353 N.C. 371, 547 S.E.2d 810; cert. denied, 534 U.S. 950, 122 S.Ct. 345, 151 L.Ed.2d 261 (2001).

10.The opposing party is not entitled to have the motion denied on the mere hope that at trial, he will be able to discredit movant's evidence. At hearing, he must be able to point out to the court, something indicating the existence of a triable issue of material fact. Kidd, 289 N.C. at 368, 222 S.E.2d at 409.

11.In the instant case, Petitioner established that she engaged in a protected activity of expressing her views on religion in the workplace, and that she suffered an adverse employment. However, Petitioner failed to forecast or produce any admissible evidence that Mr. Rhodes was told by other employees, or otherwise knew, about Petitioner expressing her views on religion in the workplace. In responding to Respondent’s Motion, Petitioner merely alleged what she thought Rhodesknew about her expressing her views on religion in the workplace, based on Petitioner’s own conversations with coworker Linda Boyette and other coworkers. (Petitioner’s Deposition, pp. 63-65, 79, 82-83, 88)

12.“More than allegations are required because anything less would allow plaintiffs to rest on their pleadings, effectively neutralizing the useful and efficient procedural tool of summary judgment.” Draughon v. Harnett Cty. Bd. of Educ., 158 N.C.App. 705, 708, 582 S.E.2d 343, 345 (2003), aff'd, 358 N.C. 137, 591 S.E.2d 520 (2004)

13.By Petitioner failing to forecast or produce any sworn statements proving that Mr. Rhodes’ termination of Petitioner’s employment was causally connected to Petitioner expressing her views on religion in the workplace, Petitioner failed to prove a prima facie case of retaliation by Respondent.

14.There is no genuine issue of material fact where a party demonstrates that the claimant cannot prove the existence of an essential element of his claim, or cannot surmount an affirmative defense, which would bar the claim. Vares v. Vares, 154 N.C.App. 83, 86, 571 S.E.2d 612, 615 (2002), disc. review denied, 357 N.C. 67, 579 S.E.2d 576 (2003). Through Rhodes’ affidavit, Respondent sufficiently proved that Petitioner could neither show any causal connection between Petitioner’s expressing her views on religion and her termination of employment, nor prove Respondent’s reason for terminating her from employment were pretextual.

15.Based on the foregoing, there areno genuine issuesof material fact as to a causal connection between Petitioner’s expression of her views on religion and Rhodes’ decision to terminate Petitioner’s probationary employment, and Respondent is entitled to summary judgment as a matter of law.

FINAL DECISION – DISCHARGE CLAIM

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby DISMISSES with prejudice Petitioner’s claim of discharge without just cause.

NOTICE AND ORDER

This Final Decision of Petitioner’s discharge claim is issued under the authority of N.C. Gen. Stat. § 150B-36(c). Pursuant to N.C. Gen. Stat. § 150B-45, any party wishing to appeal the Final Decision of the Administrative Law Judge may commence such appeal by filing a Petition for Judicial Review in the Superior Court of Wake County or in the Superior Court of the county in which the party resides. The party seeking review must file the petition within 30 days after being served with a written copy of the Administrative Law Judge’s Decision and Order.

N.C. Gen. Stat. § 150B-46 describes the contents of the Petition and requires service of the Petition on all parties. N.C. Gen. Stat. § 150B-47 requires the Office of Administrative Hearings to file the official record in the contested case with the Clerk of Superior Court within 30 days of receipt of the Petition for Judicial Review. To ensure the timely filing of the record, the appealing party must send a copy of the Petition for Judicial Review to the Office of Administrative Hearings when the appeal is initiated.

SUMMARY JUDGMENT -RETALIATION CLAIM

Based upon the Findings of Fact and Conclusions of Law, the undersigned determines that the State Personnel Commission should GRANT summary judgment in favor of Respondent on Petitioner’s retaliation claim.

ORDER AND NOTICE

The North Carolina State Personnel Commission will make the Final Decision on Petitioner’s retaliation claim. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

This the 13thday of October, 2006.

______

Melissa Owens Lassiter

Administrative Law Judge

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