STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
NO. 07 OSP 0577
COUNTY OF WAKE
WARREN R. FOLLUM
Petitioner,
DECISION
v.
NORTH
CAROLINA
UNIVERSITY,
STATE
Respondent.
The above-captioned case was heard before the Honorable Joe L. Webster,
Administrative Law Judge, on October 30, 2007 and November 14, 2007.
APPEARANCES
FOR PETITIONER:
Warren R. Follum (pro se)
FOR RESPONDENT:
Kimberly D. Potter
Assistant Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, N.C. 27602
EXHIBITS
Admitted for Respondent:
Exhibit #
Date
Document
1
12/14/05
E-mail from Carol Woodyard to Mike Harwood re: Housing
Projects PGMP Contract
2
07/28/06
E-Mail from Sallie Ricks to Mike Harwood re: New Lee Lot
Addition Comments
3
07/28/06
Hand written notes re: Parking lot meeting
4
08/02/06
Confidential Memorandum from Michael Harwood to W. Follum
re: Written Warning for Unacceptable Personal Conduct
5
08/12/06
E-Mail from W. Follum to Andy Snead re: Your Uncontrollable
Outbursts
6
08/16/06
E-mail from Dianne Sortini to MacNaughton & Harwood re:
follow up
7
08/16/06
E-mail from Andy Snead to W. Follum re: Your Uncontrollable
Outbursts
8
08/17/06
Investigative report by K. MacNaughton re: email between W.
Follum and Andy Snead
9
08/25/06
Confidential Memorandum from M. Harwood to W. Follum re:
Final Written Warning for Unacceptable Personal Conduct
10
09/26/06
SPA Work Plan and Performance Appraisal Form for Warren
Follum
12
11/17/06
E-mail from Carole Acquesta to W. Follum re: Re-organization
13
12/05/06
Memorandum from Tom Skolnicki to Carole Acquesta re:
Williams Hall Comments Review meeting
14
12/05/06
Handwritten notes re: Warren Follum (Documentation of
conversations)
15
12/06/06
Documentation of Discussion Held 12/6/06 between Acquesta and
Follum
16
01/12/07
SPA Work Plan and Performance Appraisal Form for W. Follum
17
03/07/07
E-mail from Cindy Williford to Carole Acquesta re: Winslow Hall
Meeting
18
03/08/07
Handwritten notes re: Discussion with Warren
19
03/08/07
Handwritten notes: Cindy Williford
20
03/08/07
Handwritten notes: Phone Discussion w/Dean Lomax
21
03/08/07
Handwritten notes: Phone Discussion w/ Charles Nickelson
22
03/13/07
Handwritten notes: Follow up w/Warren
23
03/12/07
Confidential letter to Follum from Carole Acquesta re: Notice of
Pre-Dismissal Conference-Unacceptable Behavior
24
03/14/07
Confidential letter to Follum from Acquesta re: Dismissal for
Unacceptable Behavior
Admitted for Petitioner:
Exhibit #
Date
Document
1
06/03/05
Petitioner’s Annual Performance Appraisal 2004-2005
2
06/28/04
Petitioner’s Annual Performance Appraisal 2003-2004
3
08/02/06
First Written Warning
4
08/25/06
Final Written Warning
5
09/08/06
Petitioner’s Work Plan 2006 to 2007
6
08/10/06
Petitioner’s First Grievance
7
Emails from Acquesta to Various recipients
Re: Daniels Project
Various dates
9
02/01/07
Memo from Acquesta to Follum (Petitioner)
Re: Confirmation of Discussion on Conduct and Performance
Concerns
11
04/12/07
Petitioner’s Contested Case Petition - File Stamped
17
01/06/06
Acquesta’s NCSU Personnel Action Form
18
03/16/01
Letter from Acquesta to Fraser with attached resume
Re: Facility Architect II Position
19
04/22/06
Letter from MacNaughton to Bridges 2006
Re: Acquesta’s application
21
11/17/06
Email from Acquesta to Follum
Re: Re-organization
26
03/24/06
Email forwarded with comments from Follum (Petitioner) to
Erickson
Re: BTEC Roof Top Units
29
07/01/07
State Personnel Manual, Section 2
Workforce Planning, Recruitment, and Selection
revised 18 July 2007
30
10/01/95
State Personnel Manual, Section 7
Disciplinary Action, Suspension, Dismissal
31
07/01/91
State Personnel Manual, Section 10
Performance Management System
32
10/11/04
BTEC Agreement between NCSU and O’Brien/Atkins Assoc.
35
Emails from Follum (Petitioner) to Benson
Re: Thompson Theater Rendering
Various dates
36
Emails concerning the CVM Hospital Budget and Kickoff
Meeting
Various authors and dates.
37
Emails with Attachments Re: Lee Parking Lot Project
Various Authors and dates
39
06/29/98
Petitioner’s Application for Facility Architect Supervisor II
position
WITNESSES
Called by Petitioner
Warren Follum
Called by Respondent
Michael Harwood
Gregory Cain
Andrew Snead
Kevin MacNaughton
Carole Acquesta
Terri Lomax
ISSUES
1)
Whether Petitioner was discharged without just cause?
2)
Whether Petitioner was discriminated against due to his age?
3)
Whether Petitioner was discriminated against based on his sex?
At the close of evidence, Respondent moved for a directed verdict on Petitioner’s claims
of age and sex discrimination. The Court granted the motion for directed verdict on these claims.
The only remaining claim for determination is whether Petitioner was discharged without just
cause.
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.
The Office of Administrative Hearings has personal and subject matter jurisdiction over
the issues in this contested case pursuant to Chapters 126 and 150B of the North Carolina
General Statutes.
2.
At the time of his discharge, Petitioner Warren Follum was a permanent State employee
subject to Chapter 126 of the General Statutes of North Carolina (the State Personnel
Act) and was a citizen and resident of North Carolina.
3.
Respondent North Carolina State University (NCSU) is subject to Chapter 126 and was
Petitioner’s employer.
4.
Petitioner, a Caucasian male, was employed with NCSU for more than 8 years. At the
time of his discharge on March 14, 2007, Petitioner was employed in the University
Architects Office as a Facility Engineer Supervisor II at a paygrade 82.
5.
On or about June 2005, Michael Harwood, during a re-organization of several
departments, became NCSU’s University Architect, and came to supervise Petitioner
directly. Harwood was born in 1958.
6.
Prior to becoming Petitioner’s supervisor in June 2005, Harwood approached Petitioner
about the re-organization of several departments into the larger University Architects
Office. Harwood indicated to Petitioner that he would need the help of a number of
people, including Petitioner, in order to make the re-organization successful.
7.
As part of the re-organization in 2005, Petitioner assumed additional duties and his
working title was changed from Manager of Formal Projects to Associate Director,
University Architect.
In this position, Petitioner supervised four to five project
managers and managed several projects of his own. In addition, Petitioner was the
primary contact from the University Architects Office with the Department of Insurance
and Office State Construction.
8.
NCSU’s University Architects Office works with campus departments to design working
plans for renovations or new construction. In this capacity, the University Architects
Office interfaces with a large number of individuals on campus. The various departments
seeking assistance from the University Architect are essentially customers internal to the
university.
9.
As a project manager, Petitioner was responsible for working with design architects
outside of the university to develop plans to suit the needs and budgets of the departments
on campus. In Petitioner’s position, he was called upon to work with a wide variety of
individuals on campus, including but not limited to department heads, deans, members of
administration, and individuals in facilities and construction services. In essence,
Petitioner, as a project manager, was supposed to facilitate the design process.
10.
When Petitioner was interacting with departments on campus and design firms outside
the university, he was acting as a representative of the University Architects Office. In
his role as project manager, it was important for Petitioner to be able to resolve conflicts
and interact professionally with others.
11.
Within six months after becoming Petitioner’s supervisor, Harwood had to meet with
Petitioner on or about December 14, 2005 regarding an instance of poor communication
by Petitioner with an on-campus colleague. Specifically, Harwood received a complaint
by email from Carol Woodyard, NCSU’s Director of Construction Management,
regarding Petitioner.
12.
From reading the email exchange between Petitioner and Woodyard, Harwood was
concerned that Petitioner was placing blame in the email with a customer of the
University Architects Office and was unnecessarily causing discord.
13.
During the meeting of December 14, 2005 to discuss the complaint by Woodyard,
Harwood explained to Petitioner that Harwood expected Petitioner to treat customers and
coworkers with courtesy, respect, and professionalism in all of his dealings. In addition,
Harwood admonished Petitioner not to send such “radioactive” emails and not to place
blame on the customer in any further emails.
14.
Subsequently, Harwood received a complaint from Alex Miller, who was the customer on
the Thompson Theatre renovation. From talking with Miller, Harwood understood that
Miller was frustrated with Petitioner and how the project was proceeding. Based on the
feedback from the client, Harwood believed it best to remove Petitioner from the theatre
project and assigned the project to a different project manager.
15.
At the conclusion of the 2005-2006 performance year, Harwood met with Petitioner on
August 15, 2006 to provide Petitioner his annual performance review. Petitioner only
received a performance review of “Good” and refused to sign the review. In the body of
the annual performance review, Harwood noted that Petitioner caused discord with
colleagues and created unnecessary tension. Specifically, Harwood informed Petitioner
that “[his] method of addressing issues alienates some colleagues or process partners”
and that his behavior “is also an occasional source of tension and conflict with colleagues
and other Facilities units.” In functions and characteristics relating to relationships with
people and project communication, Petitioner received a rating of 3, on a scale of 1 to 5.
Petitioner did not receive a score of less than good on this evaluation and almost half of
Petitioner’s scores on this evaluation were either very good or outstanding. The 20052006 performance appraisal contains no notations or notes from either Messrs. Harwood
or McNaughton of written warnings that had been received by Petitioner dated August 2,
2006 and August 25, 2006.
16.
On August 2, 2006, Petitioner received his first written warning based on unprofessional
behavior related to his actions during a Lee Hall parking lot project meeting.
17.
Petitioner was the project manager for the Lee Hall parking lot project. As project
manger, Petitioner was responsible for facilitating the design of the parking lot project.
On July 28, 2006, Petitioner led a meeting regarding the Lee Hall parking lot project.
The purpose of the meeting was to provide an opportunity for interested and impacted
individuals to comment on the particulars of the project.
18.
During the meeting, Petitioner became visibly agitated and decided to stand for the
duration of the meeting. He spoke in a loud voice and interrupted others. He also
refused to allow some meeting attendees to complete their statements. Moreover,
Petitioner dismissed advice that was offered, made rude statements, and became agitated
to the point that his hands and body were shaking.
19.
Greg Cain, Assistant Director of Parking Services at NCSU, testified that he was present
in the meeting which Petitioner led on July 28, 2006. Cain further testified that
Petitioner’s behavior was the most boorish and “outrageous” display that he had
witnessed at NCSU. Specifically, Cain stated that Petitioner never sat down, even though
the other attendees were seated, and that Petitioner hovered over one of the female
attendees in an attempt to intimidate her. Cain stated that Petitioner would not let anyone
in the meeting finish a statement but would dismiss them before they could complete a
sentence.
20.
Cain also testified that it appeared to him that Petitioner’s intention in the meeting “was
to stop everybody from discussing anything further related to this project.” Cain stated
that because of Petitioner’s conduct the attendees were not able to deal with any of the
issues they had regarding the project. As a result, Petitioner obstructed any negotiation or
discussions from taking place.
21.
Following the July 28, 2006 meeting, Harwood, who was unable to attend the Lee Hall
parking lot project meeting, received a series of emails from three attendees of the July
28, 2006 meeting, including Greg Cain, who indicated to Harwood that Petitioner
behaved rudely and disrespectfully during the meeting. In addition, Harwood received an
email from another supervisor whose employees had attended the meeting.
22.
After receiving the emails regarding Petitioner’s behavior of July 28, 2006, Harwood was
extremely concerned as it was the first time that he had encountered a situation in which
so many individuals were so uniformly complaining about one of his employees.
Thereafter, Harwood met with Petitioner to discuss the complaints. In the discussion
with Petitioner, Harwood again admonished Petitioner to treat individuals professionally,
courteously and respectfully.
23.
When questioned by Harwood, Petitioner denied that he had acted unprofessionally and
never took responsibility for his conduct. Instead, Petitioner tried to talk to Harwood
about the Lee Hall parking lot project itself and to explain how the substantive comments
by the attendees regarding the parking lot project were wrong.
24.
Given that Harwood had spoken to Petitioner previously about his behavior and
Petitioner had failed to make any changes, Harwood decided that it was necessary to
more formally memorialize his admonishments to Petitioner.
25.
On August 2, 2006, Petitioner was provided a written warning based on his
unprofessional behavior he demonstrated in the July 28, 2006 Lee Hall parking lot project
meeting. Harwood hand-delivered the written warning to Petitioner on or about August
2, 2006.
26.
In the August 2, 2006 written warning, Harwood specifically warned Petitioner that
“[y]our conduct at the meeting reflected poorly on you, and has damaged others’ views of
your professionalism and effectiveness.” Moreover, Harwood detailed his expectations
of Petitioner’s conduct in the future. In the letter, Harwood stated:
You must not shout or raise your voice at others, and you must be
respectful of the right of other people to contribute to
conversations and meetings. You must control your emotions and
demonstrate respectable and professional personal conduct at all
times, regardless of whether you agree or disagree with the
statements made by others. I expect you to treat all customers and
colleagues with courtesy, respect, and professionalism.
27.
In addition, Harwood warned Petitioner that “[f[ailure to immediately comply with the
expectations . . . may result in further disciplinary action, up to and including
termination.”
28.
Following the first written warning, Harwood received an additional complaint regarding
Petitioner from one of the customers on the Biomanufacturing Training and Education
Center (BTEC) project. Petitioner served as the project manager on the BTEC project.
In this role, he interacted with many individuals, including Peter Kilpatrick, who was one
of the customers on the BTEC project. Kilpatrick contacted Harwood regarding
complaints about Petitioner.
29.
From talking with Kilpatrick, Harwood was concerned that Petitioner was not providing
the clients information they had requested about the project schedule and budget. Based
on these concerns, Harwood removed Petitioner as the BTEC project manager.
30.
On August 25, 2006, Petitioner received a second written warning for unacceptable
personal conduct based on a series of unprofessional actions taken since August 2, 2006.
Harwood, in the August 25, 2006 written warning, admonished Petitioner regarding
communications Petitioner had on the BTEC project after he was removed as project
manager and warned Petitioner about accusatory and additional confrontational
communications Petitioner had with coworkers at NCSU.
31.
After Petitioner was removed as the BTEC project manager, Petitioner no longer had
responsibility for the BTEC project and his interaction on the project was ended.
However, Petitioner continued to communicate with consultants outside the university
who were hired to work on the BTEC project. Petitioner requested several of these
consultants, including O’Brien Atkins Architects and Skanska USA, provide him
information on the project.
32.
Petitioner represented these requests were on behalf of NCSU when in fact they were not.
Petitioner had no work related reason to contact the vendors. As a result, there was
confusion among the consultants regarding who was the appropriate contact with NCSU
on the BTEC project. The consultants contacted Harwood and expressed confusion about
what Petitioner was requesting and were uncertain how to respond given that Petitioner
was no longer the project manager.
33.
Additionally, Petitioner, on August 12, 2007, sent an email to Andy Snead, NCSU’s
Director of Design and Construction Services, accusing Snead of attacking him in an
“unprovoked” and “uncontrollable rage” on August 12, 2006. Specifically, in the email
exchange, Petitioner made various allegations against Snead, including that Snead acted
in a “confrontational, and extremely aggressive and threaten (sic) manner.” Petitioner
wrote in the email to Snead, which he copied to Snead’s supervisor Kevin McNaughton
and to Lisa Maune who was Snead’s assistant, that Snead’s eyes were “bulging;” that his
hands and body “were trembling with rage;” that “the veins in [his] neck were
protruding;” and “the skin tone of [his] face was almost purple.” Petitioner also wrote
that Snead’s conduct “was unacceptable personal conduct” and that Snead needed “to
control [his] temper and emotions.” Petitioner further accused Snead of threatening a
vendor of NCSU. Finally, Petitioner concluded the email to Snead by stating “I am
extremely concerned, because of your martial acts (sic) background and your
uncontrollable temper and rages that you are a real danger to yourself and the people you
come into daily contact with.”
34.
Snead testified at hearing and explained his interactions with Petitioner on August 12,
2006. Snead testified that his conversations with Petitioner on August 12, 2006, were
minimal and were not as Petitioner described in his email of August 12, 2006. Snead
testified that Petitioner in his email of August 12, 2006 willfully misrepresented their
interactions on August 12, 2006.
35.
After Petitioner sent the August 12, 2007 email to Snead and copied it to MacNaughton,
Maune, Harwood, and Human Resouces, Kevin MacNaughton, Associate Vice
Chancellor for Facilities, investigated the substance of the email. MacNaughton, who
supervised both Harwood and Snead, determined that Petitioner’s accusations were not
supported. In addition, MacNaughton concluded that Petitioner acted inappropriately in
sending the email as it was disruptive. In addition, MacNaughton determined that it was
inappropriate for Petitioner to copy Maune on the email as she directly reported to Snead,
was not present during the interactions between Snead and Petitioner, and had no need to
become involved.
36.
MacNaughton shared the substance of his investigation with Harwood.
37.
MacNaughton was born in 1953.
38.
After becoming aware of this issue and McNaughton’s investigation, Harwood
determined that Petitioner was continuing to engage in conduct which was unacceptable
despite receiving a written warning on August 2, 2006. Ultimately, Harwood issued the
second written warning addressing in detail Petitioner’s continued unacceptable conduct,
which included his interference on the BTEC project and his accusatory email to Snead.
39.
In the written warning of August 25, 2006, Harwood reiterated his expectations of
Petitioner, to “treat all customers and colleagues with courtesy, respect, and
professionalism.” In addition, Harwood warned that “[f]ailure to immediately comply
with the expectations . . . may result in further disciplinary action, up to and including
dismissal.”
40.
In fall 2006, Carole Acquesta was transferred to the University Architects Office.
Acquesta had worked at NCSU since April 2006 and had reported directly to
MacNaughton.
41.
With the addition of Acquesta to the University Architects Office, Harwood altered the
reporting structure such that Petitioner along with the other project managers reported to
Acquesta and were supervised by her. In turn, Acquesta reported to Harwood. Acquesta
was born in 1956.
42.
At no point was Petitioner’s paygrade or pay reduced.
43.
After Acquesta assumed supervisory responsibilities in the University Architects Office
in November 2006, Acquesta met separately with each of the project managers she was to
supervise, including Petitioner, and discussed her expectations of each project manager.
44.
Within a month of Acquesta becoming Petitioner’s supervisor, Acquesta received a
written complaint from Tom Skolnicki, NCSU’s Landscape Architect, regarding his
interactions with Petitioner. Skolnicki reported to Acquesta that during a Williams Hall
comment review meeting Petitioner rudely disregarded his comments about protecting a
tree which was to be impacted by the project. While the purpose of the Williams Hall
meeting was to receive comments on the project, Petitioner dismissed recommendations
from individuals in the meeting and would not explain his resistance to their suggestions
about protecting the tree in question.
45.
Upon receiving the complaint, Acquesta interviewed individuals, other than Skolnicki,
who attended the Williams Hall comment review meeting. From her interviews and
Skolnicki’s complaint letter, Acquesta understood that Petitioner acted rudely and
inappropriately towards Skolnicki and that many of the attendees of the meeting were
uncomfortable as a result of Petitioner’s behavior.
46.
Ultimately, Acquesta met with Petitioner and Skolnicki and forged a compromise
agreement for protecting the tree.
47.
Because Acquesta had not been involved in Petitioner’s two previous written warnings
and had just started supervising Petitioner, she chose to refrain from issuing Petitioner
another written warning in December 2006. Instead, Acquesta sought to make clear her
expectations for Petitioner by meeting with him to discuss the issues and memorializing
the substance of the meeting in a memo dated December 11, 2006.
48.
Specifically, Acquesta discussed with Petitioner a series of issues, including the
Skolnicki complaint and his failure to provide her information when she requested it. In
responding during the meeting, Petitioner was argumentative, placed blame on other
people in all cases, and would accept no responsibility for any of the issues raised.
49.
In the December 11, 2006 memo to Petitioner, Acquesta reminded him that
communicating with others effectively was critical to his position and warned him that
further issues with his conduct or performance could result in further disciplinary
measures, up to and including dismissal.
50.
In spring 2007, Acquesta provided Petitioner an interim performance review. In the
interim performance review, Acquesta provided criticisms of Petitioner’s
communications with coworkers and clients. Specifically, Acquesta noted that “Warren
has demonstrated difficulty in working collaboratively with colleagues and supporting the
department with requested project information . . . .” Acquesta also wrote that Petitioner
“has demonstrated difficulty incorporating comments into the documents with which he
does not agree.”
51.
To all of Acquesta’s comments, Petitioner made extensive handwritten responses on the
interim performance review. Petitioner denied that any of the criticisms were valid and
denied that he needed to improve in any area.
52.
As part of Petitioner’s development plan, Acquesta required that Petitioner identify by
March 1, 2007, communication training to attend and complete the training by December
31, 2007. In response to Acquesta’s requirement that Petitioner identify and attend
effective communication training, Petitioner wrote “I don’t believe I have communication
issues.” Thereafter, Petitioner explained why Acquesta was mistaken in believing that
Petitioner needed communication training.
53.
By March 1, 2007, Petitioner had not identified any communication training to attend.
54.
On March 7, 2007, Petitioner, as project manager on the Winslow Hall renovation
project, led a meeting with the client, Dean Terri Lomax, the outside architectural design
firm, and Cindy Williford from the University Architects Office. At the time, Dean
Lomax was exploring the possibility of having Winslow Hall renovated so that the
Graduate School could be moved into the renovated space.
55.
Following the meeting of March 7, 2007, Acquesta received complaints from Dean
Lomax and Williford regarding Petitioner’s behavior during the meeting.
56.
From Williford, Acquesta understood that Petitioner’s behavior was embarrassing to the
University Architects Office as he challenged any discussion about ideas, that Petitioner
was loud, and he was clearly irritated by the questions of the attendees of the meeting.
57.
In response to the complaints, Acquesta interviewed Petitioner, Cindy Williford, Dean
Lomax, and Charles Nickelson from the design firm. The attendees of the meeting, other
than Petitioner, uniformly described Petitioner’s conduct as rude and inappropriate. All
of those interviewed explained to Acquesta that Petitioner would not allow them to ask
questions but would cut-off their discussions.
58.
At the hearing Dean Lomax testified to her observations of Petitioner during the March 7,
2007 meeting. Specifically, Dean Lomax stated that, in the March 7, 2007 meeting,
Petitioner was extremely rude, would interrupt the attendees of the meeting, and would
not let the attendees discuss anything. When Dean Lomax would make statements or try
to redirect the conversation, Petitioner, without explanation, responded with “We’re not
going to talk about that.”
59.
Dean Lomax testified that prior to becoming Dean of the Graduate School at NCSU she
had worked at NASA for approximately 4 years. In her time at NASA, she worked with
numerous project managers. She testified that she had never had a project manager treat
her so rudely.
60.
Dean Lomax further testified that due to Petitioner, the 7 March 7, 2007 meeting was not
productive and did nothing to move the project along.
61.
After interviewing the attendees of the March 7, 2007 meeting, Acquesta met with
Petitioner to discuss with him the issues brought to her attention by the attendees of the
meeting. In response, Petitioner denied all of the characterizations of his behavior.
62.
On March 12, 2007, Acquesta provided to Petitioner a letter notifying Petitioner of a predismissal conference to be held on March 13, 2007 at 3:00 p.m. In the letter, Acquesta
advised Petitioner that he was being considered for dismissal based on unacceptable
personal conduct exhibited during the March 7, 2007 Winslow Hall project meeting.
Specifically, Acquesta wrote in the pre-dismissal conference notice that Petitioner at the
Winslow Hall meeting behaved inappropriately and rudely by speaking in a loud voice
and refusing to allow the participants, including the dean of the school, to collaborate.
63.
Petitioner attended the pre-dismissal conference and was provided an opportunity to
respond to the charges detailed in the March 12, 2007 notice. Petitioner would not
address the issues detailed in the March 12, 2007 notice but, instead, tried to explain why
he was upset.
64.
In determining whether discharge was appropriate, Acquesta considered Petitioner’s
pattern of behaviors; his refusal to accept responsibility; and his denial that he needed
communication training. In addition, Acequesta determined that the University
Architects Office could not afford to be represented in the manner in which Petitioner
was representing the office.
Acquesta concluded that Petitioner was divisive and
aggressive, would not collaborate with others, and was ultimately obstructing the design
process.
65.
By letter dated March 14, 2007, Acquesta notified Petitioner that he was dismissed for
unacceptable personal conduct exhibited by him in the March 7, 2007 meeting regarding
Winslow Hall. Acquesta noted that Petitioner was “disrespectful by repeatedly
interrupting others, not allowing attendees to complete their statements and dismissing
advice that was offered.” Acquesta further explained that Petitioner’s conduct “clearly
violates the expectations outlined in the written warning[s]” issued previously on 2
August 2, 2006 and August 25, 2006.
66.
Petitioner did not present any evidence of his own age.
67.
Petitioner did not present any evidence that other employees engaged in similar conduct
but were not discharged.
CONCLUSIONS OF LAW
1.
The Office of Administrative Hearings has personal and subject matter jurisdiction over
the just cause issue in this contested case pursuant to Chapter 126 and Chapter 150B of
the North Carolina General Statutes.
2.
On Petitioner’s only remaining claim, NCSU established just cause to discharge
petitioner. Petitioner’s arguments to the contrary are without merit.
3.
N.C. Gen. Stat. § 126-35(a) provides that “[n]o career State employee subject to the
State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons,
except for just cause.” “‘Just cause’ is a legal basis, set forth by statute, for the
termination of a State employee . . . “ Skinner v. N.C. Dept. of Correction, 154 N.C.
App. 270, 280, 572 S.E.2d 184, 191 (2002).
4.
“Unacceptable Personal Conduct” is defined by 25 N.C.A.C. 1J.0614 (i) as “conduct for
which no reasonable person should expect to receive a prior warning; . . . or conduct
unbecoming a state employee that is detrimental to state service . . . “
5.
The State Personnel Manual provides that before an employee can be discharged for
unacceptable personal conduct the employee must have: a current unresolved incident of
unsatisfactory job performance . . . and a pre-disciplinary conference. State Personnel
Manual, section 7, page 9
6.
As of March 1, 2007, Petitioner had two active written warnings for unacceptable
personal conduct. In addition, Petitioner had engaged in other behavior which constituted
unacceptable personal conduct justifying, at a minimum, written warnings. However,
Petitioner’s supervisors elected in those instances to address his unacceptable personal
conduct in a less formal manner before resorting to issuing written warnings and seeking
discharge.
7.
As of March 12, 2007, Petitioner had another unresolved incident of unacceptable
personal conduct. Petitioner received notification of a pre-disciplinary conference by
letter dated March 12, 2007. Petitioner was specifically notified that the pre-disciplinary
conference would be held on March 13, 2007 at 3:00 p.m.
8.
Petitioner attended the pre-disciplinary conference and was allowed an opportunity to
respond.
9.
Ultimately, Acquesta determined, based on Petitioner’s continued pattern of behavior and
his failure to accept responsibility for his behavior, that Petitioner should not continue in
his employment at NCSU.
10.
Petitioner’s conduct, summarized in the discharge letter of March 14, 2007, and detailed
in the above Findings of Fact, constituted unacceptable personal conduct.
11.
As a result, NCSU had just cause for discharging Petitioner.
12.
The written warnings of August 2, 2006 and August 25, 2006 and the discharge letter of
March 14, 2007 sufficiently described the incidents supporting the written warnings and
discharge such that Petitioner knew what acts were the basis for the written warnings and
the discharge.
13.
Petitioner’s claim that he did not have notice of the events detailed in the written
warnings and discharge letter is without merit and not credible.
14.
Specifically as to the notice of discharge, NCSU provided names, dates, and locations
such that Petitioner was able to locate the violations in time and place and connect them
with a group of persons.
15.
Acquesta, Harwood, MacNaughton, Snead, Lomax, and Cain offered consistent
testimony and were credible.
16.
Petitioner presented no evidence relevant to his claims of age and sex discrimination. As
to the age claim, he presented no evidence of his own age. Thus, he failed to establish a
prima facie claim of age discrimination. Moreover, he did not present any evidence that
individuals outside the protected age class engaged in similar conduct and were treated
differently. Additionally, all of the relevant supervisors, Harwood, Acquesta, and
MacNaughton, are over the age of 40.
17.
As to his claim of sex discrimination, Petitioner failed to establish a prime facie case.
Two of the written warnings, which supported his discharge, were issued by a male
supervisor. Additionally, Petitioner did not present any evidence that females engaged in
similar conduct and were treated differently.
18.
For these reasons, Petitioner’s claims for age and sex discrimination were dismissed at
the conclusion of the evidence upon NCSU’s motion for directed verdict.
On the basis of the above Conclusions of Law, the undersigned issues the following:
DECISION
It is hereby ordered that NCSU’s decision to discharge Petitioner is AFFIRMED.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of
Administrative Hearings, 6714 Mail Services Center, Raleigh, N.C. 27699-6714, in accordance
with N.C.G.S. § 150B-36(b).
NOTICE
The agency making the final decision in this contested case is required to give each party an
opportunity to file exceptions to Decision and to present written arguments to those in the agency
who will consider this Decision. N.C.G.S. § 150B-36(a).
The agency is required by N.C.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 North
Carolina State Personnel Commission.
This the 20th day of March, 2008.
________________________________
Joe L. Webster
Administrative Law Judge