STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
03 OSP 0599, 0629
COUNTY OF MOORE
STANLEY L. INGRAM,
Petitioner,
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v.
N. C. DEPARTMENT OF CORRECTION
Respondent.
CLIFFORD WAYNE BROWN
Petitioner,
v.
AMENDED
ORDER FOR
SUMMARY JUDGMENT
N. C. DEPARTMENT OF CORRECTION
Respondent.
STATEMENT OF CASE
Stanley Ingram and Clifford Brown are both employed as Correctional Sergeants at Hoke
Correctional Institution, a prison facility operated by the North Carolina Department of Correction.
Both Mr. Ingram and Mr. Brown are Caucasian males over age 40. In early 2003, both Mr. Ingram
and Mr. Brown were among the many Department of Correction employees who applied for
promotion to lieutenant. At the time, Hoke Correctional Institution had two vacant lieutenant
positions (positions numbers 46613 and 46615). Both Mr. Ingram and Mr. Brown applied for both
positions.
FINDINGS OF FACT
1. Pursuant to the merit-based hiring system used by the North Carolina Department of
Correction and other State of North Carolina agencies, the applications for the lieutenant positions
were screened by the personnel office at Hoke Correctional Institution.
2. The merit-based system is designed to ensure that those State of North Carolina positions
subject to the State’s Personnel Act, codified at N.C. GEN. STAT. § 126-1 et seq., are filled with the
“most qualified” individuals as determined by job related criteria, such as ability and experience.
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3. Under the system, promotions are not automatically awarded to the applicant with the most
years of experience.
4. Pursuant to the merit based system, applications for a State job are screened and
divided into one of three groups: non-qualified (those applicants who do not possess the requisite
training and experience for the job); qualified (applicants meeting the minimum training and
experience needed for the job); and most qualified (applicants possessing qualifications that exceed
the minimum qualifications required for the job). Aff. Michael Cotten, ¶ 3; Aff. Cordelia Clark, ¶ 3.
5. The merit-based system mandates that the person selected for any State job come from
those applicants falling in the “most qualified” pool. Aff. Michael Cotten, ¶ 3; Aff. Cordelia Clark,
¶ 3.
6. Sixteen of the applicants for the lieutenant position 46613 were determined to be in the
most qualified pool, as they each possessed more than the minimum educational and work
requirements for the job. Aff. Michael Cotten, ¶ 4.
7. These included both Mr. Ingram and Mr. Brown. Aff. Michael Cotten, ¶ 4.
8. Thirteen of the applicants for the lieutenant position 46615 were determined to be in
the most qualified pool, as they each possessed more than the minimum educational and work
requirements for the job. Aff. Michael Cotten, ¶ 11.
9. These included both Mr. Ingram and Mr. Brown. Aff. Michael Cotten, ¶ 11.
10. Under the merit-based system, all applicants in the “most qualified” pool are interviewed by
a committee. Aff. Michael Cotten, ¶ 3; Aff. Cordelia Clark, ¶ 3.
11. Separate three-person committees conducted the interviews for positions 46613 and
46615. Aff. Michael Cotten, ¶ 4, ¶ 11.
12. Each respective committee asked the applicants interviewed the same 10 oral questions. Aff.
Michael Cotten, ¶ 4, ¶ 11.
13. The questions were all selected from a printed booklet of interview questions prepared by
the North Carolina Department of Correction for use in job interviews. Aff. Michael Cotten, ¶ 4, ¶
11.
14. Committee members then scored each applicant on how he or she fared on each question,
based on the Department of Correction’s prepared scoring guidelines. Aff. Michael Cotten, ¶ 4, ¶ 11.
15. An applicant could receive one of three scores on any question: “Above Average,”
“Average” or “Below Average.” Aff. Michael Cotten, ¶ 4, ¶ 11.
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16. Each committee member then compiled an overall score for each applicant, based on the
average of his or her responses to the oral and written questions. Aff. Michael Cotten, ¶ 4, ¶ 11.
17. These individual members’ scored then were averaged together to give each applicant a
final committee score. Aff. Michael Cotten, ¶ 4, ¶ 11.
18. The Department of Correction employees serving on the committee for position 46613
were: Hoke Correctional Assistant Superintendent Michael Cotten, an African-American male over
age 40, Hoke Correctional Captain Edward Dew, a Caucasian male over age 40, and then McCain
Correctional Institution Programs Director Julia Brigman, a Caucasian female under age 40. Aff.
Michael Cotten, ¶ 4; Aff. Edward Dew, ¶ 4; Aff. Julia Brigman, ¶ 4.
19. Only one applicant interviewed by this committee received a combined “Above Average”
score: Kristie Bennett, an African-American female under age 40. Aff. Michael Cotten, ¶ 8; Aff.
Edward Dew, ¶ 8; Aff. Julia Brigman, ¶ 8.
20. Most of the other applicants interviewed, included Mr. Ingram and Mr. Brown, received
combined scores of “Average” from the committee. Aff. Michael Cotten, ¶ 8; Aff. Edward Dew, ¶
8; Aff. Julia Brigman, ¶ 8.
21. Based on her interview performance, the committee recommended Sergeant Bennett for
promotion to lieutenant position 46613. Aff. Michael Cotten, ¶ 9; Aff. Edward Dew, ¶ 9; Aff. Julia
Brigman, ¶ 9.
22. As noted in the affidavits from committee members Cotten, Dew and Brigman, the
recommendation of Sergeant Bennett was not prearranged. Aff. Michael Cotten, ¶¶ 8-9; Aff.
Edward Dew, ¶¶ 8-9; Aff. Julia Brigman, ¶¶ 8-9.
23. Their decisions not to recommend either Mr. Ingram or Mr. Brown for promotion was not
based in any way upon age, race, gender or other impermissible factors. Aff. Michael Cotten, ¶ 5-6;
Aff. Edward Dew, ¶ 5-6; Aff. Julia Brigman, ¶ 5-6.
24. The committee’s recommendation of Sergeant Bennett was forwarded to Hoke
Correctional Superintendent Cordelia Clark for review. Aff. Cordelia Clark, ¶¶ 5-7.
25. Superintendent Clark endorsed the recommendation, which was subsequently approved
by Superintendent Clark’s chain of command. Aff. Cordelia Clark, ¶ 5-7.
26. Superintendent Clark’s decision not to recommend either Mr. Ingram or Mr. Brown for
promotion to lieutenant position 46613 was not based in any way upon age, race, gender or other
impermissible factors. Aff. Cordelia Clark, ¶ 7.
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27. The Department of Correction employees serving on the committee for position 46615
were: Hoke Correctional Assistant Superintendent Cotten, an African-American male over age 40,
Hoke Correctional Assistant Superintendent Lynn Summers, a Caucasian male over age 40, and
Robeson Correctional Institution Assistant Superintendent Sandy Thomas, a Caucasian female over
age 40. Aff. Michael Cotten, ¶ 11; Aff. Lynn Summers, ¶ 4; Aff. Sandy Thomas, ¶ 4.
28.
Two applicants interviewed by this committee received a combined “Above Average”
score: Sergeant Michael Scarboro, a Caucasian male under age 40, and Sergeant Gerard Snead, an
African-American male over age 40. Aff. Michael Cotten, ¶ 15; Aff. Lynn Summers, ¶ 8; Aff.
Sandy Thomas, ¶ 8.
29. Most of the other applicants interviewed, including Mr. Ingram and Mr. Brown, received
combined scores of “Average” from the committee. Aff. Michael Cotten, ¶ 15; Aff. Lynn Summers,
¶ 8; Aff. Sandy Thomas, ¶ 8.
30. Based on his interview performance and the fact that he was currently an employee at
Hoke Correctional, the committee recommended Sergeant Scarboro for promotion to lieutenant
position 46615. Aff. Michael Cotten, ¶ 16; Aff. Lynn Summers, ¶ 9; Aff. Sandy Thomas, ¶ 9.
31. The recommendation of Sergeant Scarboro was not prearranged. Aff. Michael Cotten, ¶
11; Aff. Lynn Summers, ¶ 4; Aff. Sandy Thomas, ¶ 4.
32. Their decisions not to recommend either Mr. Ingram or Mr. Brown for promotion was not
based in any way upon age, race, gender or other impermissible factors. Aff. Michael Cotten, ¶¶;
Aff. Lynn Summers, ¶¶ 5-6; Aff. Sandy Thomas, ¶¶ 5-6.
33. The committee’s recommendation of Sergeant Scarboro was forwarded to Hoke
Correctional Superintendent Cordelia Clark for review. Aff. Cordelia Clark, ¶¶ 5-7.
34. Superintendent Clark endorsed the recommendation, which was subsequently approved by
Superintendent Clark’s chain of command.
35. Superintendent Clark’s decision not to recommend either Mr. Ingram or Mr. Brown for
promotion to lieutenant position 46615 was not based in any way upon age, race, gender or other
impermissible factors. Aff. Cordelia Clark, ¶ 7.
36. With the promotions of Sergeants Bennett and Scarboro to lieutenant in March 2003, six
of the eight lieutenant positions at Hoke Correctional Institution were held by people over age 40.
Aff. Michael Cotten, ¶ 18.
37. Of these eight lieutenant positions, five were held by males and three by females.
Michael Cotten, ¶ 18.
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Aff.
38. Of these eight lieutenant positions, five were held by Caucasians, one by an AfricanAmerican, and two by Native Americans. Aff. Michael Cotten, ¶ 18.
39. Hoke Correctional had a diverse range of racial backgrounds, gender backgrounds, and ages
among its lieutenants – although Caucasian males over age 40 still held the majority of the lieutenant
positions.
40. Both Mr. Ingram and Mr. Brown were notified in March 2003 that they had not been
selected for either lieutenant position.
41. Each of them then filed a discrimination complaint with the Department of Correction’s
Equal Employment Opportunity/Title VII Section. Aff. Michael Dail, ¶ 3.
42. Each of them also filed a contested case with the Office of Administrative Hearings.
43. In his complaint filed with the EEO/Title VII Section, Mr. Ingram alleged only age
discrimination as the reason he was not selected for either lieutenant position. Aff. Michael Dail,¶
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44. Mr. Ingram’s complaint was investigated by an EEO/Title VII Section investigator, who
determined that Mr. Ingram’s age was not a factor in his nonselection for either lieutenant position.
Aff. Michael Dail, ¶ 9.
45. Instead, the investigator determined that the reason that Mr. Ingram was not selected was due
solely to his performance during the two interviews. Aff. Michael Dail, ¶ 9.
46. In his contested case petition, Mr. Ingram, among other claims, alleged race, gender,
religious, age, color, creed, handicapping condition, national origin, and political affiliation
discrimination as the reasons he was not selected for either lieutenant position.
47. A deposition of Mr. Ingram was conducted on August 13, 2003, and during it he was
unable to provide any tangible evidence to support any of his discrimination claims. Deposition
Stanley Ingram, pp. 10-18.
48. He admitted that his race and gender discrimination claims applied only to his failure to land
position 46613, which was filled with an African-American female. Deposition Stanley Ingram, pp.
10-18.
49. In his complaint filed with the EEO/Title VII Section, Mr. Brown alleged age
discrimination and retaliation by Superintendent Clark as the reasons he was not selected for either
lieutenant position. Aff. Michael Dail, ¶ 5.
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50. Mr. Brown contended that Superintendent Clark had retaliated against him for his 2000
complaint to Department of Correction management about comments Ms. Clark had made about his
size. Aff. Michael Dail, ¶ 5.
51. Mr. Brown’s complaint was investigated by an EEO/Title VII Section investigator, who
determined that Mr. Brown’s age was not a factor in his nonselection for either lieutenant
position and that Superintendent Clark had not retaliated against him. Aff. Michael Dail, ¶ 8.
52. The investigator determined that the reason that Mr. Brown was not selected was due solely
to his performance during the two interviews. Aff. Michael Dail, ¶ 8.
53. In his contested case petition, Mr. Brown, among other claims, alleged race, gender, age,
and handicapping condition discrimination as the reasons he was not selected for either lieutenant
position.
54. A deposition of Mr. Brown was conducted on August 13, 2003, and during it he was
unable to provide any tangible evidence to support any of his discrimination claims. Deposition
Clifford Brown, pp. 27-52.
55. Moreover, he admitted that his race and gender discrimination claims applied only to his
failure to land position 46613, which was filled with an African-American female. Deposition
Clifford Brown, pp. 27-52.
CONCLUSIONS OF LAW
1. Rule 56 of the North Carolina Rules of Civil Procedure provides for entry of summary
judgment in favor of a party when there is no genuine issue of material fact and that party is entitled
to judgment as a matter of law.
2. The test is whether under the materials before the court there is a genuine issue as to any
material fact. Lowe v. Murchison, 44 N.C. App. 488, 261 S.E.2d 255 (1980).
3. On a motion for summary judgment, the moving party has the burden of establishing that
there is no genuine issue of material fact, but once the moving party has met its burden the opposing
party cannot rest on mere denials or the allegations in his pleading, but instead must come forward
and establish specific facts showing there is a genuine issue for trial. Gillis v. Whitley’s Dist. Auto
Sales, Inc., 70 N.C. App. 270, 319 S.E.2d 661 (1984).
4. N.C. GEN. STAT. § 126-36 allows a State employee to contest his failure to win a promotion
if he believes that action was motivated by illegal race and/or gender discrimination. In a
discrimination claim under N.C. GEN. STAT. § 126-36, the employee carries the initial burden of
proof of establishing, by a preponderance of the evidence, a prima facie case of discrimination.
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Gibson, 308 N.C. at 136-137, 301 S.E.2d at 82-83. A prima facie case consists of showing that: 1)
the employee is of a certain age, race, gender or handicapping condition; 2) the employee failed to
win a promotion; 3) the employee’s race and/or gender was a substantial or motivating factor in his
failure to win the promotion. Gibson, 308 N.C. at 137, 301 S.E.2d at 82 (1983).
5. If the employee has made out a prima facie case, the burden shifts to the employer to
articulate some legitimate, non-discriminatory reason for the employee’s rejection. Id. Then if the
employer has met its burden, the employee is given the opportunity to show that the stated reasons
for the employer’s decision are a mere pretext for discrimination. Id.
6. In addition to the burden of proof enumerated above, an employee, contesting his failure to
win a promotion, must establish that he was the better qualified candidate for the position sought.
Evans v. Technologies Applications & Serv. Co., 80 F.2d 954, 960 (4th Cir. 1996). The State
Personnel Commission in recent decisions has specified that in a failure to promote case, an
employee must establish by substantial evidence that he was the best qualified candidate. See Dunn
v. Dept. of Correction, 00 OSP 1693; Gordon v. Dept. of Correction, 02 OSP 0103.
7. Both Mr. Ingram and Mr. Brown provided deposition testimony in this case. In his
deposition testimony, Mr. Ingram failed to make out prima facie cases of either race, gender,
religion, age, color, handicapping condition, creed, national origin, or political affiliation
discrimination, as he provided no evidence at all demonstrating that the Department of Correction
considered the race, gender, religion, age, color, handicapping condition, creed, national origin, or
political affiliation of the applicants in deciding whom to promote into either lieutenant positions
46613 and 46615. Deposition Stanley Ingram, pp. 10-17. In his deposition testimony, Mr. Ingram
admitted that he has no basis for making some of the discrimination claims he asserted, specifically,
his claims regarding creed and national origin. Deposition Stanley Ingram, p. 15.
8. Likewise, in his deposition testimony, Mr. Brown failed to make out prima facie cases of
either race, gender, age, or handicapping condition discrimination, as he provided no evidence at all
demonstrating that the Department of Correction considered the race, gender, age, or handicapping
condition of the applicants in deciding whom to promote into either lieutenant positions 46613 and
46615. Deposition Clifford Brown, pp. 27-50.
9. The Department of Correction through the materials before this court has established that
it had legitimate business reasons for selecting Sergeant Kristie Bennett, an African American female
under age 40, for promotion to lieutenant position 46613 and Sergeant Michael Scarboro, a
Caucasian male under age 40, for promotion to lieutenant position 46615.
10. Sergeant Bennett and Sergeant Scarboro were selected for promotion based upon their
interview performances, with each gaining a combined rating of “Above Average” from the
respective interview committees. Aff. Cordelia Clark, ¶¶ 5-7; Aff. Michael Cotten, ¶¶ 4-16. In
comparison, Mr. Ingram and Mr. Brown each received combined ratings of “Average” from the
interview committees for positions 46613 and 46615.Aff. Michael Cotten, ¶¶ 4-16.
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11. Mr. Ingram and Mr. Brown each failed to establish that he was the better qualified
candidate for the lieutenant’s positions, a necessary showing in order to establish that the Department
of Correction’s stated reasons for its hiring decisions were mere pretext for discrimination. Mr.
Ingram in his deposition testified that he was the best qualified applicant for lieutenant positions
46613 and 46615. Dep. Stanley Ingram, p. 22. Mr. Brown asserted during his deposition that he was
the best qualified applicant for the two positions. Dep. Clifford Brown, p. 35. Their opinion
testimony was not supported by any evidence, however. As noted above, Federal courts have
articulated the employee’s evidence that he was better qualified must “be of such weight and
significance that no reasonable person, in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff for the job in question.” Deines v. Texas Dept. of Protective and
Regulatory Servs., 164 F.3d. 277, 280-281 (5th Cir.). Mr. Ingram’s and Mr. Brown’s subjective
beliefs that the decision to not promote them was motivated by unlawful discriminatory intent is
insufficient to establish a prima facie case of discrimination. See, e.g., Tinsley v. First Union Nat’l
Bank, 155 F.3d 435, 444 (4th Cir. 1998) (perception of decisionmaker as to performance is the
relevant perception). See also Schultz v. General Electric Capital Corp., 37 F.3d 329, 334 (7th Cir.
1994) (“[A]n employee’s own self-serving remarks standing alone are insufficient to raise doubt as
to the credence of the employer’s explanation”). See also Furr v. Seagate Tech., 82 F.3d 980, 988
(10th Cir. 1996) (“It is the manager’s perception of the employee’s performance that is relevant, not
plaintiff’s subjective evaluation of his own relative performance.”).
DECISION
Because neither Mr. Ingram nor Mr. Brown can meet their burden of proof–either for a prima
facie case of discrimination or to establish that the Department of Correction’s stated reasons for
promoting both Sergeant Bennett and Sergeant Scarboro are merely pretextual–the Department of
Correction is entitled to summary judgment on both Mr. Ingram’s and Mr. Brown’s claims related to
lieutenant positions 46613 and 46615.
NOW THEREFORE, Respondent’s Motion for Summary Judgment is hereby Granted.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance
with North Carolina General Statute 150B-36(b).
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NOTICE
The agency making the final decision in this contested case 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. G.S. 150B-36(a).
The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties
and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.
The agency that will make the final decision in this contested case is the Office of State
Personnel.
This the 6 day of November, 2003.
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Sammie Chess, Jr.
Administrative Law Judge
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