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STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
04 OSP 1742
COUNTY OF CUMBERLAND
BEVERLY R. LEE,
Petitioner,
v.
EMPLOYMENT SECURITY
COMMISSION OF NORTH CAROLINA,
Respondent.
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DECISION
This case was heard before the undersigned Administrative Law Judge James L. Conner,
II on June 21 and 22, 2005 in Fayetteville, North Carolina, on a Petition which alleged that
respondent transferred Petitioner to the Sanford local office in retaliation for opposition to
alleged discrimination.
On or about February 11, 2005, a Partial Order of Dismissal was issued by Chief
Administrative Law Judge Julian Mann, III barring Petitioner from raising any issue, defense,
claim, or cause of action against Respondent arising out of Petitioner’s contested case 03 OSP
0205, filed February 17, 2003, which was subject to Petitioner’s voluntary dismissal entered on
September 12, 2003, because Petitioner did not re-file her contested case petition within one year
as required by Rule 41(a)(1).
APPEARANCES
Petitioner
Beverly R. Lee
P. O. Box 5043
Ft. Lee. VA 23801
Respondent
Sharon A. Johnston
Thomas H. Hodges, Jr.
Employment Security Commission of NC
P. O. Box 25903
Raleigh, NC 27611-5903
ISSUE
Whether Respondent transferred Petitioner in retaliation for Petitioner filing an Equal
Employment Opportunity Commission complaint in opposition to alleged discrimination.
EVIDENCE
Petitioner’s Exhibits 1-5, 7-12, 16 and 18-19 were admitted into evidence. Petitioner
called the following witnesses: Gail London, Mary Carol Lewis, and herself. At the close of
Petitioner’s evidence, Respondent moved, pursuant to Rule 41(b) of the Rules of Civil
Procedure, to dismiss this case on the ground that upon the facts and the law Petitioner had no
right to relief.
FINDINGS OF FACT
1.
Petitioner filed a Petition for Contested Case Hearing alleging that Respondent
transferred her from the Fayetteville local office to the Sanford local office in retaliation for
filing an Equal Employment Opportunity (EEO) complaint alleging race and sex discrimination.
2.
Petitioner is an African-American female.
3.
Petitioner was employed by Respondent in March 1998 as an Employment
Consultant I in Respondent’s Fayetteville, North Carolina office.
4.
It was stipulated that Petitioner filed an internal EEO grievance on or about
January 3, 2002.
5.
Petitioner worked in the claims unit and was supervised by Gail London until
April 2004 when London was promoted. London is an African-American female. Edith
Edmond, assistant office manager, was London’s supervisor and then became Petitioner’s
immediate supervisor from April 2004 until October 20, 2004. Edmond is an African-American
female.
6.
Glenn McQueen, office manager in Fayetteville, is an African-American male.
7.
In September 2003, David Canady, Unemployment Insurance Director, was at the
Fayetteville local office for an open house. He talked with two intermittent employees who were
expected to be laid off soon. He discussed possible jobs in the Raleigh call center. Canady
instructed the intermittents and London not to tell any employees about the conversation.
London later reminded the intermittents not to discuss the conversation with any employees,
including Petitioner with whom the intermittents had a friendship.
8.
Beginning in September 2003, management was requesting that employees
submit leave requests for the holidays. Petitioner did not submit to her supervisor a request to
leave early on December 23, 2003. Petitioner received a warning for leaving early on December
23, 2003 without the permission of her supervisor. Petitioner filed a grievance to the wording of
the warning. A Grievance Panel upheld the warning. Chairman Harry E. Payne, Jr. reviewed the
Panel’s report and issued a letter dated May 4, 2004, stating, in pertinent part, “While I do not
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feel that the written warning is false, I agree that it might be construed as misleading.” Payne
had the warning removed from Petitioner’s personnel file.
9.
On March 9, 2004, Petitioner filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (EEOC), Charge Number 141-2004-01874, alleging
retaliation and discrimination based on her race and sex.
10.
On April 15, 2004, Petitioner was taking a break and talking to another employee.
Edmond asked to speak with Petitioner in her office. Edmond asked Petitioner to complete her
break.
11.
Petitioner was absent on June 7, 8, and 9, 2004. When she returned, Edmond
asked Petitioner for a doctor’s note to cover her days out. Petitioner did not go to the doctor
while she was out. Petitioner did not tell Edmond that she did not go to the doctor but spent four
hours of work time sitting at the Veteran’s Administration (VA) hospital for a doctor’s note she
could not get because she had not gone to the doctor.
12.
On August 2, 2004, Petitioner submitted a Workplace Violence Incident Report
after Edmond brought Petitioner a time sheet Edmond wanted completed immediately and
Petitioner did not want to do it. Petitioner reported that Edmond “broadened her shoulders” in an
attempt to block the door to her cubicle and to “frighten, coerce or induce duress.” Petitioner
was able to exit her work cubicle. Mary Carol Lewis, Safety and Health Director, investigated
the report and found that it did not rise to the level of workplace violence and that “broadening
her shoulders” was not intended to cause any physical harm.
13.
In August 2004, McQueen and Edmond went to Petitioner’s cubicle about
stamped envelopes Petitioner had given a customer to mail applications. Petitioner was told she
was not to give stamped envelopes. Petitioner had done this in the past.
14.
Petitioner received emails from her supervisors. Petitioner did not read all emails
from supervisors because she had not been told to read them.
15.
On October 18, 2004, Petitioner was given a letter transferring her from the
Fayetteville office to Respondent’s Sanford, North Carolina office. The letter stated that the
transfer was based upon “organizational needs” and was effective October 20, 2004.
16.
Petitioner filed a Petition for Contested Case Hearing on October 19, 2004
alleging that a transfer was forced upon her in retaliation for filing an EEOC complaint in March
2004.
17.
Petitioner’s rate of pay, benefits, job title, job responsibilities, and opportunity for
promotion remained the same after her transfer.
18.
Petitioner’s complaints regarding her treatment by the supervisors may have
created an unpleasant workplace environment for Petitioner; however, the treatment did not rise
to the level of discrimination, harassment, or retaliation.
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CONCLUSIONS OF LAW
1.
N.C.G.S. §126-16 provides that all state departments and agencies . . . shall give
equal opportunity for employment and compensation, without regard to race, . . . [and] sex, . . .
to all persons otherwise qualified.
N.C.G.S. §126-36 provides that:
Any State employee or former State employee who has reason to believe that . . .
transfer . . . was forced upon the employee in retaliation for opposition to alleged
discrimination . . . shall have the right to appeal directly to the State Personnel
Commission.
As a result, the Office of Administrative Hearings has jurisdiction over the subject matter and the
parties hereto.
2.
In North Carolina Department of Correction v. Gibson, 308 N.C. 131, 301 S.E.2d
78 (1983), the North Carolina Supreme Court adopted the three-prong test of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 37 L. Ed. 2d 688 (1973) in addressing
claims of employment discrimination. Under the test, Petitioner must first establish a prima facie
case of discrimination. The burden then shifts to Respondent to articulate some legitimate nondiscriminatory reason for the action. Petitioner has the burden of proof to establish that unlawful
discrimination was the motivating factor in Respondent’s actions. St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L. Ed. 2d 407 (1993).
3.
In Brand v. North Carolina Department of Crime Control and Public Safety, 352
F. Supp. 2d 606 (M.D.N.C. 2004), the Court held that to establish a prima facie case of
retaliation, Petitioner must show (1) that she engaged in protected activity, (2) that she was
subject to an adverse employment action, and (3) that there was a causal connection between the
protected activity and the adverse employment action. The Court defined “adverse employment
action” as
an action that actually adversely affects a term, condition, or benefit of
employment. (citation omitted) . . . An employer’s decision to transfer “does not
qualify as an adverse employment action unless the decision ‘had some
significant detrimental effect’ on the employee.” Wagstaff v. City of Durham, 233
F. Supp. 2d 739, 744 (M.D.N.C. 2002) (quoting Boone v. Goldin, 178 F.3d 253,
256 (4th Cir. 1999)). “[A]bsent any decrease in compensation, job title, level of
responsibility, or opportunity for promotion, reassignment to a new position
commensurate with one’s salary level does not constitute an adverse employment
action even if the new job does cause some modest stress not present in the old
position.” Boone, 178 F.3d at 256-57.
Brand, 352 F. Supp. 2d at 615.
4.
Petitioner failed to establish a prima facie case of causal connection that the
transfer was in retaliation for her having filed an EEOC charge in March 2004.
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DECISION
This case is dismissed with prejudice for Petitioner’s failure to establish a prima facie
case on her claim that respondent retaliated against her for opposition to alleged discrimination.
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, N.C. 27699-6714, in accordance
with North Carolina General Statute 150B-36(b).
NOTICE
The Agency that will make the final decision in this contested case is the North Carolina
State Personnel Commission.
The Agency is required to give each party an opportunity to file exceptions to the
decision and to present written arguments to those in the Agency who will make the final
decision. N.C. Gen. Stat. § 150-36(a). The Agency is required by N.C. Gen. Stat. § 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.
In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact
contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the
preponderance of the admissible evidence. For each finding of fact not adopted by the agency,
the agency shall set forth separately and in detail the reasons for not adopting the finding of fact
and the evidence in the record relied upon by the agency in not adopting the finding of fact. For
each new finding of fact made by the agency that is not contained in the Administrative Law
Judge’s decision, the agency shall set forth separately and in detail the evidence in the record
relied upon by the agency in making the finding of fact.
This the 2nd day of August 2005.
______________________________________
James L. Conner, II
Administrative Law Judge
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