STATE OF NORTH CAROLINA
COUNTY OF ORANGE
IN THE OFFICE
OF ADMINISTRATIVE HEARINGS
07 OSP 0575/0630
JACQUELINE B. MAYNARD,
Petitioner,
)
)
)
v.
)
DECISION
UNIVERSITY OF NORTH CAROLINA )
Respondent.
)
________________________________________________________________________
SHARON P. HOUSE
)
Petitioner,
)
)
v.
)
)
UNIVERSITY OF NORTH CAROLINA )
Respondent.
)
These cases came on for hearing before Judge Joe L. Webster, Administrative Law
Judge, on December 4-6, 2007 in Raleigh, North Carolina.
APPEARANCES
Petitioners:
Elizabeth M. Haddix, Attorney at Law, Pittsboro, N.C., appearing.
Respondents: Roy Cooper, Attorney General, Raleigh, N.C.,
Assistant Attorney General Q. Shanté Martin, appearing.
ISSUES
1.
Whether Respondent’s termination of Petitioners’ employment violated the Age
Discrimination in Employment Act (hereinafter, “ADEA”), 29 U.S.C. § 621 et
seq.
2.
Whether Respondent terminated Petitioners’ employment without following
applicable personnel policy and procedures, promulgated under the State
Personnel Act, G.S. § 126-4(7a), 25 N.C.A.C. 1C.1004.
Page 1 of 23
EXHIBITS
The following exhibits offered by the Petitioner were received in evidence:
P1.
P2.
P3.
P4.
P5.
P7.
P8.
P8a.
P10.
P11.
P12.
P13.
P14.
P16.
P17.
P18.
P19.
Performance reviews for Jacqueline Maynard
In-house Price List
10/03/06 email from Dean Williams
10/16/06 official layoff notice
Layoff policy
9/22/05 notes from committee meeting
10/11/05 email from Kanoy to May
Document entitled, “Dental Pathology Payout.”
Removable prosthodontics units
All units produced in-house between 7/01/04 and 6/30/05
Fixed units produced in-house between 7/01/04 and 6/30/05
Units produced by John Cowan between 7/01/04 and 6/30/05
Units produced by John Jordan between 7/01/04 and 6/30/05
11/28/05 notes from committee meeting
2/20/06 email from Ludlow to May
4/01/06 email from Foy to May
Spreadsheet entitled “School of Dentistry Expenditures Summary and
Projections for Dental Services Laboratories”
P20. 1/02/06 memo from May to Williams
P21. J.S. Dental Studio Price List
P22. 10/03/06 “Talking Points” for meeting with Dental Services Laboratories
P23. 10/11/06 email from Foy to May and Williams
P24. Fixed lab totals 7/01/04 through 6/30/05
P25. Kanoy prescriptions
P26. Curriculum vitae of Bermel
P27. Bermel spreadsheet
P28. Curriculum vitae of Weiner
P29. Printout of personnel data
P30. Performance reviews for House
P31. Private lab invoices
P32. Williams deposition transcript
P33. Weiner affidavits
P34. Article from The News & Observer, October l9, 2006
The following exhibits offered by Respondent were received in evidence:
R2.
1/02/06 memo from May to Williams
R4.
9/25/06 memo from Williams to Marro
R8.
10/11/05 email from Kanoy to May
Page 2 of 23
R9.
2/16/06 email from Swift to May
R10.
2/19/06 email from Leonard to May, Foy, Kanoy, Solow and Ludlow
R11.
3/14/06 email from Elsenrath to May
R12.
4/01/06 email from Foy to May
R13.
8/11/06 email from Elsenrath to May
R14
J.S. Dental Studio Price List
R15.
10/11/06 email from Foy to Williams
R16.
10/16/06 letter from Williams to Maynard
R17.
11/27/06 letter from Williams to Maynard
R18.
10/16/06 letter from Williams to House
R19.
11/27/06 letter from Williams to House
R20.
All units produced in-house between 7/01/04 and 6/30/05
On the basis of careful consideration of the sworn testimony of witnesses presented at the
hearing, documents received and admitted into evidence, and the entire record in this proceeding,
the undersigned makes the following findings of fact. In making these findings, the undersigned
has weighed all the evidence and has assessed the credibility of the witnesses by taking into
account the appropriate factors for judging credibility, including but not limited to the demeanor
of the witness, any interest, bias or prejudice the witness may have; the opportunity of the
witness to see, hear, know and remember the facts or occurrences about which the witness
testified; whether the testimony of the witness is reasonable; and whether such testimony is
consistent with all other believable evidence in the case.
FINDINGS OF FACT
1.
Petitioners Jacqueline Maynard and Sharon House worked in Respondent’s
Dental Services Laboratories (hereinafter, “dental labs” or “in-house labs”) in the School of
Dentistry (hereinafter “the School”) as dental laboratory technicians for twenty-six (26) years,
three (3) months and twenty-seven (27) years, eleven (11) months, respectively. (T. at 49 and
359.)
Page 3 of 23
2.
Petitioners were selected for a layoff, or Reduction-in-Force (hereinafter
“RIF”), which became effective on January 5, 2007. (T. at 625.) At the time of the RIF, each of
them held the job classification Dental Laboratory Technician II. (Ex. R.4). Including
Petitioners, there were fifteen (15) dental lab employees selected for the RIF, thirteen (13) of
whom were over the age of forty (40). (Ex. R.4.) At the time they were selected for the RIF,
both Petitioner Maynard and Petitioner House were fifty (50) years old. (Ex. R.4.)
3.
Dean John Williams became the Dean of the UNC-CH School of Dentistry
effective May 31, 2005. (T p. 567). Prior to becoming Dean at the University of North Carolina,
he was Dean of the University of Louisville School of Dentistry. As Dean at the University of
Louisville, he was responsible for all personnel, financial, accreditation, planning, university
relations, alumni relations, and fund raising matters. (T. pp. 566-67). In his role as Dean at the
University of North Carolina School of Dentistry, Dean Williams is “responsible for planning,
evaluation, alumni relations, fund-raising, academic programs, research programs, patient care
programs, all facets of the School of Dentistry which deliver education, patient care, research,
and service.” In his role as Dean he also has the responsibility, the authority, and the expectation
“to move the academic unit – this case the School of Dentistry – forward in concert with the
direction the University wants to move.” (T. p. 570).
4.
That prior to Dean Williams’ arrival at the School of Dentistry, part of his due
diligence included reviewing a fairly detailed financial analysis of the School which he shared
with the chancellor and provost, that indicated that the Dean felt that potentially there were areas
within the school that should be evaluated with the consideration of more efficiently utilization
limited resources. (T. p. 576). This evaluation was also done after consideration of information
he received that anticipated that there would be budget cuts to the University from the state
budget. That upon his arrival he signaled to anticipate a one percent permanent budget cut. After
being on the job for six weeks, the one percent became two and a half percent of the Schools
permanent budget. (T. p. 577).
5.
In considering where to make budget cuts Dean Williams began to look at
possible reductions at the Center for Educational Development, where there had been a couple of
vacancies. The second area he looked at was the graduate education program where the school
was providing stipends and other means of support for those programs and graduate students,
approaching almost two million dollars. In the fall of 2005, following the budget reduction of
two and a half percent, the Dean looked at the dental laboratory technicians. His review of
financial documents showed a large amount of dollar expenditure for outside laboratories. (T. p.
578).
6.
Dean Williams’ previous employer, the University of Louisville School of
Dentistry had once had a number of in-house laboratory technicians and over the years had
phased that area out. Dean Williams was quite surprised that there would be a large dollar
expenditure for outsourcing laboratory procedures at UNC. (T. p. 579).
7.
The undersigned finds as fact that Dean Williams and Dr. May knew or had
information available to them that Petitioners were over forty (40) years of age before Dean
Page 4 of 23
Williams made the final decision to lay them off. (Ex. P 6, Ex. R.4; T. 613-618.)
8.
Petitioner presented the testimony of an expert in the field of statistics, Debra
Weiner, who determined, using both a chi-square and t-test, that the group of people Respondent
selected for layoff was significantly older as a group compared to employees who were also
protected under the State Personnel Act (hereinafter, “SPA”) but not selected for layoff. Based
on that statistical analysis, the expert concluded that the RIF was not random with respect to age.
(T. at 332.) Ms. Weiner’s analysis showed that the probability of obtaining by chance the
observed disparity (more than three standard deviations) between the age of the workers who
were selected for the RIF and the average age of the workers who were not selected was
“remote,” approximately 24 in 10,000. (T. 354; Ex. P. 33 at 5.)
9.
Petitioner’s statistical expert specifically explained that the probability that “it
just so happened” that the people in the functional unit Respondent selected for layoff were
significantly older than the remaining SPA employees in the School, “is about one in a hundred
or one in fifty.” (T. at 353, 354.)
10.
Respondent’s initial stated justification for the layoff was that it was a “business
decision…to outsource many of the services currently provided” by the in-house labs. (Ex. P 3;
T. 609, 641-642.)
11.
In its official notification to Petitioners of the decision to lay them off,
Respondent stated that the “specific reason for [the] layoff is…in order to improve efficiency of
service to [the School’s] patients and departments and to maximize utilization of fiscal
resources.” (Ex. P 4.)
12.
The in-house labs consisted of three different types of prothodontics
technicians: fixed, removable, and maxillofacial. (T. 34.) The fixed technicians made prostheses
such as crowns and bridges; the removable technicians made prostheses such as dentures and
retainers. (T. 34.)
13.
The maxillofacial prosthodontic technician, Sandra Rothenberger, was specially
trained and performed highly specialized work fabricating such prostheses as eyes, noses, and
ears for patients at the School. (T. 34, 175, 483, 637.) None of the other dental lab technicians
performed the type of work performed by Ms. Rothenberger. (T. 34-35, 175-176, 637.)
14.
Respondent did not include Ms. Rothenberger, who was fifty-nine (59) at the
time of the RIF, in the group of employees identified for the RIF, because of her highly
specialized skills. (T. 483-484, 637.)
15.
Petitioners were both fixed lab technicians, and fabricated a variety of fixed
prostheses, from routine prostheses such as crowns and bridges to more complicated processes,
such as completion or modification of prostheses. (T. 49, 359-361.) They also interacted in an
instructional capacity with the School’s students on a regular basis throughout the work day,
helping the students to resolve issues or errors related to the materials or structure of a restoration
Page 5 of 23
or prosthesis. (T. 52, 361-362.)
16.
The in-house labs had one staff person, Charlotte Baldwin, whose working job
title was Office Manager for the labs. (T. 256.) Ms. Baldwin staffed the dental labs for fourteen
(14) and one half years. (T. 258.) During that time, her job duties included logging information
from all prescriptions sent to the in-house labs into the Alpha 4 database and generating reports
from that database. (T. 256-258.)
17.
Dean Williams’ decision-making process entailed a combination of more
subjective factors, including the recommendations from an ad hoc committee which he
appointed to study the feasibility of maintaining the dental labs within the School. (T. at 97, 102,
580-581)
18.
Dean Williams asked Dr. Kenneth May, who at the time was Associate Dean for
Planning and Administration and director of Respondent’s Dental Services Laboratories, to form
and chair the ad hoc committee. (T 97, 102, 580-581.)
19.
The specific objective of the committee was to determine the cost-effectiveness of
the in-house labs by conducting a cost-per-unit comparison between the in-house labs and
commercial, private labs (hereinafter, “outside labs”). (T. 102,109.)
20.
The ad hoc committee was comprised of the following individuals: Mr. Robert
Foy, the School’s Associate Dean for Finance (T. 97); Dr. John Ludlow, a faculty member in
Radiology (T. 97, 100); Dr. Ed Kanoy, Chair of the Department of Prosthodontics (T. 98); Dr.
Ralph Leonard, director of the Dental Faculty Practice (T. at 99); and Dr. Solow, who was
responsible for the School’s Student Clinics (T. 100, 542). There was no representative from the
Dental Services Laboratories on the committee. (T. 100-101.)
21.
The committee selected fiscal year 2005 (July 1, 2004 through June 30, 2005) as
the period to study to determine a cost-per-unit of work produced by the in-house lab
technicians, so that the committee could do a cost-per-unit comparison with private, commercial
labs. (T. 109, 170, 201-202, 206-207; Ex. P 20 at 2.)
22.
In its cost-per-unit comparison with outside labs, the committee used only the
number of units produced by the fixed prosthodontic lab technicians, even though it had the same
production information available for the removable prosthodontic technicians. (T. 128, 137-138.)
23.
Using the numbers described in below Findings of Fact #33 and #39, the
committee eventually concluded that the in-house cost-per-unit for fixed prosthodontic cases was
one hundred seventy dollars ($170). (Ex. P 20 at 2.)
24.
The committee compared that number to a figure of one hundred ninety dollars
($190) for outsourced services, which it derived from the cost of a “Porcelain to High Noble”
crown charged by one (1) commercial laboratory and a telephone conversation Dr. Solow had
Page 6 of 23
with Drake Dental Lab in Charlotte, North Carolina. (Ex. P 20 at 3, Ex. P21, T. 177-178.)
25.
To calculate the in-house cost-per-unit, the committee used production reports
obtained through the Alpha 4 database which were generated by Charlotte Baldwin. (T. 119; Ex.
P 8 at 1.)
26.
However, based on purported recommendations of Dr. Kanoy, the committee
counted only part of some of the units which the Alpha 4 report showed had been produced by
the fixed lab technicians, and concluded that one thousand eight hundred ten (1,810) was the
total number of units produced by the fixed lab technicians during fiscal year 2005. (T. 119; Ex.
P 8; Ex. P 20.) This was the number that the committee used in its cost-per-unit calculation for
the in-house labs. (Ex. P 20.)
27.
According to the Alpha 4 report generated by Ms. Baldwin, the total number of
fixed units produced by the fixed lab technicians in fiscal year 2005 was two thousand four
hundred fourteen (2,414). (T. 130, 137, 139-1401; Ex. P 12 at 6; Ex. P 24.)
28.
The undersigned finds as fact that that the committee should not have subtracted
units or parts of units from that total, because the Alpha 4 system recognized which processes
represented a full or partial unit at the time that the data was entered. (T. 265-266, 272.)
29.
The undersigned also finds as fact that the committee erred in using the salaries of
six (6) technicians for the purpose of determining the in-house lab cost-per-unit. (T. 123-124; .
Ex. P 8; Ex. P 20 at 2.) During the fiscal year 2005, Respondent employed only five (5) in-house
fixed prosthodontic technicians. (T. at 39-41, 46-47, 675, 687.) The individuals and annual
salaries used by the committee to determine the in-houose cost-per-unit are as follows: Deborah
Ferrell ($42,133); Sharon House ($45,530); Joseph Lee ($49,708); Jacqueline Maynard
9$44,703); Larry Strayhorn ($52,065); Carol Thompson $43,175) T. 124, Ex. P at 8a). These
salaries total two hundred seventy-seven thousand three hundred fourteen dollars ($277, 314).
30.
The undersigned finds as fact that Dr. May knew or should have known that only
five (5) fixed lab technicians, two of whom were the Petitioners, should have been used in the
calculation of the fixed lab cost-per-unit, because Dr. May knew or should have known that only
five (5) people were doing performing most, if not all of the fixed lab work during the relevant
period. (T. 39-41, 46-47, 675, 687.)
31.
Although Dr. May testified that he counted Deborah Ferrell as the sixth lab
technician based on representations made to him by the direct supervisor of the labs, Collins
Clarkson, the undersigned finds more credible the testimony of Collins Clarkson, who testified
that he never made such a representation to Dr. May. (T. 676-677, 687.) This finding is further
supported by the credible testimony of Deborah Ferrell, who said that Dr. May knew she was a
fixed lab technician during the relevant period. (T. at 45-47.)
Page 7 of 23
32.
For purposes of the committee’s cost-per-unit comparison, Dr. May used a figure
of two hundred seventy-seven thousand three hundred dollars ($277,300) as the total in salaries
paid to six (6) technicians from July 1, 2004 through June 30, 2005. (T. 123-124; Ex. P 8 at 1;
Ex. P 20 at 2.) That total in fact represents salaries paid in the year 2006 to the six people2
identified by Dr. May as fixed lab technicians (T. 124; Ex. 8a).
33.
There is no documentary evidence in the record which reflects the salaries paid in
fiscal year 2005 to the six technicians whom the committee used to determine the cost-per-unit
of work. Even if it were found proper that the committee used the salaries of six instead of five
individuals in its cost analysis, the salary total that the committee used ($277,300) was in fact
greater than the total they should have used, as the salaries paid to the technicians from July 1,
2004 through June 30, 2005 would be less than the salaries paid to the same individuals in 2006.
(T. 123-126.)
34.
Because the committee used a larger figure for the salary and benefits costs than it
should have used, the undersigned finds as fact that the in-house lab cost-per-unit was less than
one hundred seventy dollars ($170) (T. 206-208, 214-15.)
35.
Dr. May submitted an initial draft of the committee’s recommendations in the
form of a memorandum to Dean Williams in early January 2006. (Ex. P 20, Ex. R.2; T. 587.)
The memorandum articulated the following recommendations: that the in-house labs be
“phase[d] out…as quickly and as humanely as possible;” that five or six lab technicians be
employed, including a maxillofacial prosthodontics technician; and that a “preferred private
dental laboratory be designated” to meet the School’s needs. (Ex. P 20, at 2.)
36.
Dr. May testified that the committee’s recommendation to “phase out” the inhouse labs was based on “information” that other departments and graduate programs were
“already sending quite a bit of their laboratory work to outside labs,” and based on the
“impression” that other dental schools outsourced their lab services instead of having in-house
lab technicians in order to save money. (T. 513-514.)
37.
In fact, the vast majority of the fixed prosthetic work at Respondent’s School of
Dentistry was completed by the in-house fixed technicians. (T 135, Ex. P 8.)
38.
After reviewing the draft memorandum, Dean Williams asked Dr. May to gather
additional information, including verification of the numbers used by the committee in its costper-unit comparison, as well as reasons from the committee not to close the labs. (T. 512, 588,
602.)
39.
Dr. May then circulated the draft memorandum to the ad hoc committee members,
asking for reasons not to close the labs. (Ex. P 17; T. 152.) He received one response, from Dr.
Ludlow, who responded that he wanted to see a cost per unit comparison with private lab
services: “We describe our current costs and imply that there could be savings through
personnel reductions, but we don’t provide a bottom line. What will we be paying for combined
Page 8 of 23
school and private laboratory services if/when the proposed lab reorganization takes place?”
wrote Dr. Ludlow. (Ex. P 17.)
40.
Dr. May gave Dean Williams the committee’s final written recommendations in
early March 2006, without ever obtaining the information requested by Dr. Ludlow. (Ex. P 20; T.
153, 643.)
41.
In fact, it was not until March 31, 2006, that Dr. May asked committee member
Robert Foy, the School’s Associate Dean for Finance, to show whatever cost savings might
result from “downsizing” the in-house laboratories. (T. 203.) Mr. Foy was asked to do this via a
spreadsheet using the cost-per-unit figures from the final draft of the recommendation
memorandum. (Ex. P 18, T. 203.)
42.
Mr. Foy prepared the spreadsheet using the costs of the equipment used in the
labs, including computers and tools, some of which were not used exclusively by the fixed lab
technicians. (Ex. P 19, T. 201-203.)
43.
Mr. Foy admitted that he entered the equipment cost as a yearly cost for purposes
of the spreadsheet, even though those costs would not have been incurred every year. (T. 201.)
44.
Mr. Foy also admitted that he never supplied the costs for lab materials and
supplies, nor did he calculate overhead costs which would be attributable to the in-house labs. (T.
206-207.)
45.
Mr. Foy admitted that it would have been possible to conduct an accounting or
analysis of the percentage of overhead costs that should be factored into a cost-per-unit for the
in-house labs. T 208.)
46.
When asked why such an accounting was not done, Mr. Foy testified that the
committee determined that “the work required to obtain somewhat reasonable numbers that [the
committee] could all be comfortable [with]…wasn’t worth the effort” because the $170 in-house
cost-per-unit based on salaries and benefits for fixed lab technicians was “comparable to outside
labs already.” (T. 208.)
47.
Petitioners presented credible evidence through accounting expert Frank Bermel
that based on an analysis using the fixed lab data provided by Respondents in this case, the cost
of outsourcing all of the fixed lab work would be significantly higher than the cost of
maintaining the in-house fixed lab. (T. 278, 321; Ex. P 27.)
48.
Mr. Bermel’s analysis involved prorating, or using a percentage of, the identified
costs associated with the in-house labs in order to produce a cost-per-unit comparison with
outsourced services. (T. 287-295, 309.)
49.
The undersigned finds that the analysis performed by Petitioner’s accounting
expert is in fact consistent with Respondent’s stated cost-per-unit comparison analysis, which
Page 9 of 23
looked only at production and personnel costs associated with a part of Respondent’s in-house
dental laboratory operation: the fixed labs. (T. 309, 317-325.)
50.
The undersigned further finds that the accounting expert’s analysis casts some
doubt on one of the reasons given by Respondents for closing the in-house labs; that outsourcing
the work of Petitioners and the other dental technicians to private companies would “maximize
utilization of fiscal resources.” (Ex. P 4; T. 320, 324-325.)
51.
It was not until after Dean Williams had notified Petitioners and the other
technicians of his decision to lay them off that Respondent made an effort to collect information
concerning the School’s actual costs for outside lab services during the period studied by the
committee. (T. at 628-629; Ex. R.15.)
52.
Respondent’s officials have given differing conclusions about the amount of
projected costs savings resulting from closing the in-house labs and outsourcing the work. Dean
Williams states in his memorandum dated September 25, 2006 that “after restructuring has been
accomplished, there will be a cost savings for the School of Dentistry of a least $840,491 per
year from salaries, benefits (figured at 19%), and health insurance alone for those employees
affected.” (Ex. R. 4).
53.
When the undersigned asked Dr. May to provide a “bottom line” number
associated with the committee’s conclusions regarding expected savings from the decision to
close the labs, Dr. May responded that the committee had determined that outsourcing the inhouse services would be “a cost savings in the long run” of “probably a hundred and fifty
thousand ($150,000) to two hundred dollars ($200,000)” (T 560)
54.
At the hearing, the undersigned Administrative Law Judge asked Dr. May to
explain was meant by Respondent’s assertion that the layoff of Petitioners and the other dental
technicians was a “business decision.” (T. 560.) Dr. May answered that Dean Williams had
charged the committee to look at the efficiency of the in-house labs, specifically, whether it
would be financially sound to maintain the labs as they were operating at that time. (T. 560-562.)
55.
Dean Williams admitted during the hearing that a real cost-per-unit comparison
with private lab services was never done. (T. 662). Dean Williams testified that he was
especially concerned about the School’s large amount of dollar expenditures for outside
laboratories, “which surprised him “based on the large number of laboratory technician
positions… within the School.” (T. 578). When asked why he did not explore reducing the costs
associated with the outside labs as an alternative, Dean Williams indicated that was one of the
areas he had investigated. (T. 628). However, he did not “investigate” it until October 11, 2006after he had announced his decision to lay off Petitioners. (T. 629).
56.
The undersigned finds the different and, at times, inconsistent evidence regarding
expected cost savings particularly troubling in this case, because the reason Respondent gave
Petitioners and the other lab technicians for the layoff was “to improve efficiency” and
Page 10 of 23
“maximize utilization of fiscal resources.” (Ex. P3 and P4.
57.
When asked during the hearing to then explain the significance of the committee’s
determination of a cost per unit, Dean Williams testified that the determination of the cost
became “irrelevant” to him because of the “strong response” he saw from the “users of
laboratory services…indicating that…they can’t justify the retention of the in-house
laboratories.” (T. 599.) The undersigned finds this assertion lacking in credibility where
Respondent’s initial and “official” stated justification for the layoff was based solely on
financial, “business” reasons.
58.
Dean Williams also indicated his decision to close the in-house labs was also
based on the fact that there was a lack of departmental support for the in-house labs and Dean
Williams testified further at the hearing as follows with respect to his rationale for the RIF:
The rationale for the reduction in force…actually predated my arrival at
[the School]—looking at cost of operations, identified several areas that
we should do further review, impaneled an ad hoc committee led by Dr.
May to provide a report to me about what we should do with the dental
laboratories, my knowledge of being a practitioner in terms of what would
be reasonably expected for dental lab techs to produce, both in terms of
some fixed and removable units—completed units— my extensive
knowledge by conducting accreditation site visits to different dental
schools around the country, and my knowledge in terms of some of the
new technologies, what is currently available to restore teeth using
computer-assisted technology and computer-aided manufacturing. (T.
611.)
59.
The evidentiary record is also devoid of any measures taken by Dean Williams or
other members of management to address the in-house lab productivity levels.
60.
Dean Williams testified that he never indicated to Petitioners or their supervisors
that their work was inefficient. (T. 665-666.) On the contrary, the undersigned finds as a fact that
Petitioners’ performance appraisals for the relevant period were outstanding and contained no
mention from management of any need to increase productivity levels or otherwise improve
efficiency. (Ex. P 1, Ex. P 30; T. 365-367.)
61.
Dean Williams thought that the UNC-Ch School of Dentistry could be more
efficient by outsourcing the work of the in house, laboratory. (T. 579-580)
62.
Although petitioners challenged the accuracy and the usefulness of information
contained in the ad hoc committee’s January 6, 2006 written recommendation (T. 277-78, 29698, 299-302), petitioners presented no documentary or testimonial evidence to prove that Dean
Williams’ reliance on the ad hoc committee’s recommendation was a pretext for intentional age
discrimination.
Page 11 of 23
63.
Although petitioners challenged the ad hoc committee’s use of the Alpha 4
database system, claiming the Alpha 4 database was deficient (T. 231), no evidence was
produced to prove that the database was used for the purpose of discriminating against
petitioners based on their age by Dr May, Dr. Williams or anyone else representing Respondent.
64. Notwithstanding the incomplete analysis done by Dean Williams and the Dental
School to determine the propriety of closing the in-house labs, the final decision to completely
close the in-house labs, the undersigned takes official notice that such practices are consistent
with normal business practices in today’s business climate which gives little if any consideration
to longevity and past loyalty.
65.
When comparing the petitioners to other SPA employees within the School of
Dentistry, the reduction in force resulted in a statistically significant disparate impact on
petitioners based upon their age. (T. 332)
66.
However, petitioner’s evidence of a s statistical disparity based upon age did not
make a distinction between the following scenarios: (1) the group selected for the reduction in
force was selected because the average age of that group was higher than the average age of the
remaining employees in the dental school; and (2) the group selected for the reduction in force
was selected because they were employed in the dental laboratory should be reduced in force,
without any regard for age. (T. 355). Thus the statistical disparity alone does not establish age
discrimination.
67.
Petitioners provided no evidence that served to isolate or to identify “specific
employment practices that are allegedly responsible for any observed statistical disparities.”
Smith v. City of Jackson, 544 U.S. 228, 241, 161 L. Ed. 2d 410, 422 9205) (emphasis added).
68.
While petitioners proved that neither Dean Williams nor the ad hoc committee
looked at the RIF policy in their deliberations about the future of the dental laboratory,
petitioners died not proffer any evidence of a specific test, requirement, or practice within the
reduction in force policy that caused the disparate impact.
69.
Petitioner Maynard believes that the reduction in force itself caused the disparate
impact based upon her age. (T. 68).
70.
Petitioner House believes that Dean Williams’ alleged violation of unspecified
state and federal laws caused the disparate impact based upon her age. (T. 367-68)
71. That the Dean’s decision to close the in-house labs even if based solely upon only
one of the reasons given by Dean Williams such as the fact that almost none of the School’s
Department used the labs, or that outside labs were capable of producing products by technology
not found in the dental labs, the undersigned finds as a fact that the Dean’s decision was not
unreasonable nor unlawful absent a concurrent finding of discrimination.
72.
That Dean Williams’ decision to close the in-house laboratories, even if based
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upon an incomplete and unscientific study was not done for the purpose of discriminating against
Petitioners based upon age and was not done as a pretext for unlawful discrimination based upon
age or any other unlawful discrimination.
73.
In addition to the above Findings, the undersigned finds as fact that the
Respondent at all times relevant to this case had in effect a written policy for Reduction-in-force
(RIF) which meets its particular needs and provides assurances to employees that potential
reductions shall be considered on a fair and systematic basis in accordance with factors defined
in the Reduction-in-force policy. (T. 94-96, 524, 529-530, 648-651) Dean Williams admitted that
he did not follow the RIF policy in making his decision to terminate Petitioners’ employment
and the undersigned finds a fact that he did not follow the policy. (T. 610-611, 648-651, 668670) He did not review Respondent’s RIF policy when making his decision to layoff Petitioners
and outsource the lab services they had provided because he considered the RIF policy to be “a
more prescriptive way to talk about the process.” (T. 610, 668) The policy of each
department/agency/institution shall be filed with the Office of State Personnel as a public record.
The RIF policy required management to consider the length of total service when identifying
employees for layoff. (Ex. P5 at 2.) The undersigned finds as fact that Respondent failed to
consider Petitioners’ length of service at any point in its decision making process. (T. 523-527)
Respondent’s RIF policy also stated that “[e]ach department facing the layoff of an employee is
obligated to make every effort to place that employee, either within or outside the department,
prior to the effective date for layoff.” (Ex. P 5 at 1) The RIF policy requires Respondents to
consider the performance of individual laboratory technicians which Dr. Williams did not do in
making his decision to lay off Petitioners. (T. 613)
74. Furthermore, in making the decision to lay off Petitioners and the other dental
technicians, Respondent failed to “examin[e] all other available alternatives,” as required by the
RIF policy. [Ex. P5 at 1; T. 153-154 (restructure the lab services to retain a certain number of
positions); 166-167 (improve the in-house lab technology), 172-174 (raise charges for lab
services), 199 (reduce outsourcing costs), 561 (Dr. May admits that the committee did not
examine all other available alternatives to closing the labs), 628-629 (reduce outsourcing costs),
631-632 (reduce dean’s salary), 648-651, 660-662 (conduct an accurate cost-per-unit comparison
with outside labs to determine whether the work performed by the in-house labs could be done at
lower cost by private labs), 665-666 (explore other ways to improve efficiency of Petitioners’
work and/or work performed by the in-house lab technicians), 669 (consider the other factors
enumerated by the policy during selection of employees to layoff), 718.)
75.
On alternative was to restructure the lab services, which would have resulted in
the retention of some of the in-house technicians. (T. 153-154.) Dr. May testified that the
committee actually recommended this alternative to Dean Williams, but that “advice in any
meetings [Dr. May] was with [Human Resources] was not to do anything at this time because we
could not be selective at that point of who we kept and who we didn’t. If we did a RIF for a unit,
everyone in the unit had to be laid off.” (T. 153-154.)
76.
When asked to clarify this point, Dr. May seemed to be making the assertion that
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Dean Williams’ decision not to accept the committee’s recommendation to retain some of the
technicians was based on advice from Respondent’s Human Resources (“HR”) department. (T.
155.) No one from HR testified in the hearing to support or clarify this assertion. However, that
assertion is contradicted by Dean Williams’ own testimony that he had already made the decision
to move forward with the layoff when the advice from HR was received. (T. 673.) When counsel
asked Dean Williams what the advice from HR had been, he stated the following:
We had sent forward some names of individuals to be retained as outlined
in the [committee’s] report, and they said, because of the reduction in
force policy, that they had reviewed that everyone was – had a similar job
title, the Laboratory II position, similar work performance in terms of their
most recent performance appraisal, and therefore, their recommendation –
or they would not approve a layoff. Everyone had to be laid off with the
exception of Ms. Rothenberger. (T. 673.)
77.
Dean Williams then clarified that, when he received that information from HR, he
had already made the decision to move forward with the layoff. (T. 673.) Therefore, to the
extent Respondent contends that its decision was dictated by its HR department, the undersigned
finds that the greater weight of credible, competent evidence supports a contrary finding:
specifically, that whatever input HR actually had in the decision to layoff Petitioners and the
other lab technicians had no discernible impact on Dean Williams’ decision to lay them all off.
78.
Respondent kept its decision to layoff Petitioners and the other lab technicians
confidential such that Petitioners and the other lab technicians were unaware of the decision until
on or about October 3, 2006, which was just over one month prior to the initial effective date of
layoff. (T at 182-184, 624; Ex. P 4; Ex. R.17.)
79.
There is no evidence in the record to support a finding that Respondent “made
every effort” to place Petitioners in other positions prior to the effective date of the layoff. On
the contrary, the only retraining and reemployment opportunities in the evidentiary record
consist of the following: (1) a limited number of educational credit hours at Respondent’s
expense, and (2) a resume-writing tutor from a private company. (T. 65-67, 227-228, 235, 382384.) Neither of these led to job placements for Petitioners. (T. 65-67, 382-384.).
80.
The Respondent’s RIF Policy provides in pertinent part:
(b) Agency Responsibility.
(1) Each agency shall develop a written policy for reduction-in-force which meets
its particular needs and provides assurance to employees that potential reductions shall be
considered on a fair and systematic basis in accordance with factors defined in the
reduction-in-force policy. The policy of each department/agency/institution shall be filed
with the Office of State Personnel as a public record.
1.
At all times relevant to this case, Respondent had a layoff (or reduction in force)
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policy pursuant to 25 N.C.A.C. 1C.1004, which provides in pertinent part as follows:
(a) It is the policy of this University that employees are to be laid off only after
examining all other available alternatives….Each department facing the layoff of an
employee is obligated to make every effort to place that employee, either within or
outside the department, prior to the effective date of layoff.” (Ex. P5.)
(b) When identifying employees for layoff, management must consider the
following factors:

The position classification(s) affected,

The appointment type of each employee,

The relative performance of employees in the affected classification(s),

Length of total state service…, and

Impact on the University’s affirmative action goals.
(c) Length of Total State Service may become a differentiating factor in the
decision to separate and employee, particularly where other criteria are substantially
equivalent.
(d) The department head (or designee) must submit a written request for approval
of a proposed layoff to the Director of Workforce Planning & Compensation. The
request must be approved before any layoff action can be taken. The written request
must contain the following information:

The reason(s) for the layoff

The anticipated date of separation

Name(s) of the employees to be laid off and justification for the decision

A listing of all vacant positions in the department which are the same or
closely related

Status of recruitment activity for vacant positions which are the same or
closely related

What efforts the department has made to avoid the layoff of the selected
employee
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
A brief explanation for why action other than layoff is not possible, and

A management contact.
81. That the undersigned further finds as a fact that Dean Williams did not even
completely follow the recommendation of the ad hoc committee.
The Committee’s
recommendation was for Dean Williams to “phase out the in-house laboratories as quickly and
humanely as possible.” Dean Williams did phase out the in-house laboratories quickly, but not
humanely as possible. It was inhumane to close the in-house labs without “examining all other
available alternatives as required by the RIF policy. Moreover, the RIF policy requires that each
department facing the layoff of an employee is obligated to make every effort to place that
employee, within or outside the department, prior to the effective date of layoff. The record is
devoid of facts proving that respondent undertook such efforts on behalf of petitioners. The
meager efforts undertaken by Respondent to assist Petitioners and the affected employees
previously set forth in the facts of this Order were woefully inadequate to comply with the letter
and spirit of the RIF policy and within the spirit of human decency, especially as applied to the
Petitioners who had been dedicated employees for 27 years 11 months and 26 years 3 months,
respectively.
82. That it is appears Petitioners have no remedy before the Office of Administrative
based upon the Respondents failure to follow its own RIF policy, even if such failure was
consciously done. This Office lacks subject matter jurisdiction to hear contested cases if the sole
ground is that an agency has failed to follow its own RIF policy. Univ. of N.C. at Chapel Hill v.
Feinstein, 161 N.C. App. 700, 590 S.E. 2d 401 (2003), disc. denied, 358 N.C. 380, 598 S.E. 2d
380 (2004), citing N.C. Gen. Stat. Section 126-34.1 (2)(b) and 126-34.1(a)(4). Thus the
Respondent’s RIF policy is rendered worthless since there is no penalty for Respondent’s failure
to follow it absent a concurrent finding of discrimination pursuant to the precedent set forth in
Feinstein and the absence of authority in N.C. Gen. Stat. Section 126-34.1.
BASED UPON the foregoing Findings of Fact, the undersigned Administrative Law Judge
makes the following:
CONCLUSIONS OF LAW
1. N.C.G.S. § 126-34.1(a)(11)b (2005) provides that a former State employee may file a
contested case petition in the Office of Administrative Hearings when there is a violation
of the Age Discrimination in Employment Act (ADEA). Petitioners’ claims that they
were RIF’d based upon age discrimination would fall within the parameters of the
ADEA. See 29 U.S.C. § 621, et seq.
2. North Carolina courts “look to federal decisions for guidance in establishing evidentiary
standards and principles of law to be applied in discrimination cases.” North Carolina
Dep’t of Correction v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983).
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3. The United States Supreme Court has allowed plaintiffs to prove discrimination under the
ADEA based upon a disparate treatment theory and based upon a disparate impact theory.
See Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 123 L. Ed. 2d 338, 346 (1993);
Smith v. City of Jackson, 544 U.S. 228, 240, 161 L. Ed. 2d 410, 421 (2005) (recognizing
the viability of disparate impact claims under the ADEA).
Disparate Treatment
4. “In a disparate treatment case, liability depends on whether the protected trait (under the
ADEA, age) actually motivated the employer’s decision.” Hazen Paper Co. v. Biggins,
507 U.S. at 610, 123 L. Ed. 2d at 346.
5. For disparate treatment claims, the United States Supreme Court established a burdenshifting framework by which employees may prove employment discrimination. N.C.
Dep't of Crime Control & Pub. Safety v. Greene, 172 N.C. App. 530, 537-38, 616 S.E.2d
594, 600 (2005) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d
668 (1973)). Under this federal scheme, the employee is required to establish a prima
facie case of discrimination. Id. After the employee has established a prima facie case of
discrimination, the employer has the burden to provide a “legitimate, non-discriminatory”
rationale for its employment decision. Id. If the employer provides a “legitimate,
nondiscriminatory” rationale for its employment decision, the burden shifts back to the
employee to provide evidence that the employer’s stated rationale is a “mere pretext” for
discrimination. Id.
6. However, the “ultimate burden” of proving that the employer intentionally discriminated
against the employee remains with the employee at all times. North Carolina Dep’t of
Correction v. Gibson, 308 N.C. at 138, 301 S.E.2d at 83.
7. The Fourth Circuit has articulated the appropriate elements of a prima facie case in a
reduction in force situation where performance was not the basis for the reduction in
force. See Herold v. Hajoca Corp., 864 F.2d 317, 319 (4th Cir. 1988).
8. “In a reduction-in-force case, . . . a plaintiff must show four things to make out a prima
facie case under ADEA: (1) that he is in the protected age group, (2) that he was
discharged, (3) that at the time of the discharge, he was performing his job at a level that
met his employer’s legitimate expectations, and (4) that persons outside the protected age
class were retained in the same position or that there was some other evidence that the
employer did not treat age neutrally in deciding to dismiss the plaintiff.” Id.
Petitioners established that they were in the protected age group, over 40 years old;
established that they were reduced in force effective 5 January 2007; and established that at
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9.the time of their reduction in force, they were performing at levels that met their
employer’s expectations. (T pp. 49, 53-54, 62, 358, 362, 364-66; Pet’r Exs. 1, 4, 30)
10. However, petitioners did not meet the fourth prong of their prima facie case. Petitioners
did not show that “persons outside the protected age class were retained in the same
position.” Ms. Sandra Rothenberger was 59 years old, had the same position
classification as petitioners, and she was retained. (T pp. 612, 664) Thus, Ms.
Rothenberger was within the protected class and retained in the same position as
petitioners.
11. Furthermore, petitioners did not produce “other evidence that [Dean Williams] did not
treat age neutrally” in his decision to conduct the reduction in force. It was
uncontradicted that Dean Williams reduced in force everyone in the Dental Services
Laboratory, with the exception of the one dental laboratory technician, who was within
the protected age class. (T pp. 612, 664) Dean Williams reduced in force 12 Dental
Laboratory Technician IIs, two Dental Technician supervisors, and one Dental
Laboratory Technician Assistant. (T p. 672; Ex. R4) Since Dean Williams reduced in
force the entire Dental Services Laboratory, with the exception of one person within the
protected age class, the undersigned concludes that he treated age neutrally in his
decision to conduct the reduction in force.
12. Additionally, while Dean Williams either knew or had information before him that would
have easily allowed him to determine the ages of Petitioners based on their job tenure
alone, the undersigned concludes that he treated age neutrally in making his decision to
conduct the reduction in force.
13. Because petitioners have not satisfied the fourth prong of their prima facie case,
petitioners have not met their prima facie case. Therefore, petitioners have not met their
burden to prove that Dean Williams intentionally implemented the reduction in force
against petitioners because they were over 40 years old.
14. Even if petitioners had met their prima facie case, they still did not show that Dean
Williams’ legitimate, non-discriminatory rationale for implementing the reduction in
force was a pretext for age discrimination.
15. Dean Williams offered several legitimate, non-discriminatory reasons for conducting the
reduction in force.
16. Petitioners failed to satisfy their burden to establish that Dean Williams’ “legitimate, nondiscriminatory” multi-faceted rationale for his decision to conduct the reduction in force
was pretext.
17. While petitioners challenged the accuracy of information contained in the ad hoc
committee’s recommendation to phase out the dental laboratory, they presented no
evidence to establish that Dean Williams’ reliance on the ad hoc committee’s
recommendation was a pretext for intentional discrimination.
18
18. While petitioners elicited testimony from Dean Williams that the dental laboratory
technicians with whom he worked in Kentucky did not have as much interaction with
students as did the dental laboratory technicians at UNC-CH, they still did not establish
that Dean Williams’ reliance on his previous experience as a private practitioner as part
of his rationale for conducting the reduction in force is a pretext for intentional
discrimination.
19. UNC-CH’s failure to comply with all of the provisions of its Reduction in Force policy
does not establish intentional age discrimination under disparate treatment.
Disparate Impact
20. Although disparate impact claims are cognizable under the ADEA, the United States
Supreme Court has held that in order to state such a claim, “it is not enough to simply
allege that there is a disparate impact on workers, or point to a generalized policy that
leads to such an impact.” Smith v. City of Jackson, 544 U.S. 228, 241, 161 L. Ed. 2d 410,
422 (2005). Instead, the employee is “responsible for isolating and identifying the
specific employment practices that are allegedly responsible for any observed statistical
disparities.” Id. (emphasis in original) (citation and internal quotations omitted).
21. After the employee identifies the specific employment practice responsible for the
statistical disparity, then the employee has the burden to show that the employment
practice was not based on reasonable factors other than age (“RFOA”). “[I]n cases
involving disparate-impact claims[,] . . . the RFOA provision plays its principal role by
precluding liability if the adverse impact was attributable to a nonage factor that was
‘reasonable.’” Id. at 239, 161 L. Ed. 2d at 421.
22. In the case at bar, petitioners have done even less than what the Supreme Court in Smith
has found insufficient - produced evidence “that there is a disparate impact on workers,”
and “point[ed] to a generalized policy” that did not even “lead to such an impact.” See
id. at 241, 161 L. Ed. 2d at 422.
23. Petitioners have failed to identify the “specific employment practice” that caused the
disparate statistical impact. Neither of petitioners’ beliefs about what caused the
statistical disparity satisfies the specificity required by the Unites States Supreme Court
in Smith v. City of Jackson.
24. While petitioners elicited testimony that Dean Williams did not include a required
provision in his reduction in force approval request as required by the UNC-CH reduction
in force policy (T pp. 648-50), petitioners produced no evidence that Dean Williams’
failure to include the required provision actually caused the disparate impact.
25. Dean Williams did not use the UNC-CH RIF policy to make his decision or to support his
justification for conducting the reduction in force. (T p. 610) He merely attempted to
comply with its procedural requirements after he made his decision in order to get the
19
necessary approval from the Human Resources department. (T p. 610) Thus, it follows
that Dean Williams following the RIF policy or not following the RIF policy could not be
the specific employment practice that led to the statistical disparity.
26. Even if Dean Williams had used the UNC-CH reduction in force policy to make his
decision to conduct the reduction in force and even if petitioners had identified the
reduction in force policy as the cause of the disparate impact, petitioners did not identify
“any specific test, requirement, or practice within [the reduction in force policy] that has
an adverse impact on older workers.” See, e.g., id. In other words, petitioners did not
show how the application of the RIF policy resulted in a disparate impact.
27. Moreover, even if Dean Williams had used the reduction in force policy to make his
decision, even if petitioners had identified a “specific test, requirement, or practice within
[the reduction in force policy] that has an adverse impact on older workers[,]” petitioners
have still failed to establish that Dean Williams’ multifaceted rationale was not based on
reasonable factors other than age (“RFOA”). See id.
28. In this case, the adverse impact was attributable to several nonage factors that were
reasonable:
a.
Regarding Dean Williams’ reliance on the ad hoc committee’s
recommendation as a basis for his decision to conduct the reduction in force,
while petitioners challenged the accuracy of information contained in the ad hoc
committee’s recommendation to phase out the dental laboratory, they presented
no evidence to establish that Dean Williams’ reliance on the ad hoc committee’s
recommendation was unreasonable.
i.
Even though there were five fixed technicians instead of six
fixed technicians, resulting in an inflated cost per unit for the in-house
laboratory, it was still reasonable for Dean Williams to rely on the
information presented by the ad hoc committee because he had no reason
to doubt their information about the number of fixed technicians. (T p.
587)
ii.
Even though there were five fixed technicians instead of six
fixed technicians, resulting in an inflated cost per unit for the in-house
laboratory, it was also still reasonable for Dean Williams to rely on the
information presented by the ad hoc committee because the number of
fixed technicians would not have changed his decision (T p. 600)
iii.
Even though there were five fixed technicians instead of six
fixed technicians, resulting in an inflated cost per unit for the in-house
laboratory, it was still reasonable for Dean Williams to rely on the
information presented by the ad hoc committee because other real costs
that were difficult to measure that would have increased the cost per unit
20
were not included in the calculation. (T p. 517)
iv.
Even if the Alpha 4 system was deficient for the purpose of
determining the number of units produced, it was still reasonable for Dean
Williams to rely on the information produced by the Alpha 4 system
because there was no other efficient way of obtaining the number of fixed
units produced in a year. (T pp. 236, 268, 666-67)
v.
Even if it would be a higher cost per unit to outsource the
work of the in-house laboratory, Dean Williams’ decision was still
reasonable because the School of Dentistry would no longer have to pay
for and maintain the infrastructure required to operate an in-house
laboratory. (T pp. 207-08)
b.
Even if petitioners had established that Dean Williams’ reliance on the ad
hoc committee’s recommendation was unreasonable, petitioners still would not
have satisfied their burden to establish disparate impact because Dean Williams
had several other reasonable bases to conduct the reduction in force.
c.
Furthermore, even if petitioners had established that Dean Williams’
reliance on the ad hoc committee’s recommendation was unreasonable they still
have produced no evidence that age was a factor at all, especially considering the
uncontradicted evidence that Dean Williams did not know petitioners ages at the
time he made the decision to conduct the reduction in force.
d.
Moreover, petitioners’ evidence regarding the purported weaknesses of the
cost analysis conducted by the ad hoc committee (T pp. 277-78, 296-98, 299302), challenges UNC-CH’s business judgment. The Fourth Circuit has
“recognized the importance of giving an employer the latitude and autonomy to
make business decisions, including workplace reorganization, as long as the
employer does not violate the ADEA.” Henson v. Liggett Group, Inc., 61 F.3d
270, 277 (4th Cir. 1995). The Fourth Circuit has also held that “[i]t is not for this
court or any other governmental agency to direct the business practices of any
company. It is not the purpose . . . nor the function of this court to second guess
the wisdom of business decisions.” EEOC v. Clay Printing Co., 955 F.2d 936,
946 (4th Cir. 1992).
e.
Regarding Dean Williams’ testimony that he relied on his private practice
experience as part of his rationale, while petitioners elicited testimony from Dean
Williams that the dental laboratory technicians with whom he worked in
Kentucky did not have as much interaction with students as did the dental
laboratory technicians at UNC-CH, they still did not establish that Dean
Williams’ reliance on his previous experience as a private practitioner as part of
his rationale for conducting the reduction in force was unreasonable.
29.
Univ. of N.C. at Chapel Hill v. Feinstein does not allow petitioners a remedy under the
21
State Personnel Act for UNC-CH’s failure to comply with all of the provisions of its own
Reduction in Force policy. Thus, the Office of Administrative Hearings has no
jurisdiction to grant petitioners any relief for UNC-CH’s failure to comply with all of the
provisions of the UNC-CH Reduction in Force policy. 161 N.C. App. 700; 590 S.E.2d
401 (2003), disc. rev. denied, 358 N.C. 380, 598 S.E.2d 380 (2004).
On the basis of the above Conclusions of Law, the undersigned issues the following:
DECISION
It is hereby ORDERED that petitioners have not proved that UNC-CH conducted the
reduction in force in violation of the Age Discrimination in Employment Act neither based upon
a disparate treatment theory, nor based upon a disparate impact theory. While the Petitioners
have proven by the greater weight of the evidence that the Respondent did not follow its own
RIF, the undersigned lacks legal authority to fashion a remedy for Petitioners based upon the
legal precedent and statutes set forth herein.
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.
NOTICE
The agency making the final decision will review the decision of the Administrative Law
Judge in this contested case per N.C.G.S. § 150B-36(a) and N.C.G.S. § 150B-36(b),(b1), and
(b2). The agency making the final decision is required to give each party an opportunity to file
exceptions to the decision of the Administrative Law Judge and to present written argument to
those in the agency who will make the final decision. The agency is required by N.C.G.S. §
150B-36(b3) 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 8th day of April, 2008.
________________________________
Joe Webster
Administrative Law Judge
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