State of north carolina

25 NCAC 1J .0614

EXHIBITS ADMITTED INTO EVIDENCE
For Petitioner: 1 - 14, 16, 17
For Respondent: 1 - 22

FINDINGS OF FACTS

Procedural Background

1. On November 17, 2008, Respondent suspended Petitioner for two weeks without pay for unsatisfactory job performance. Petitioner grieved the suspension through the University grievance process. The Grievance and Appeal Committee conducted a hearing on January 29, 2009. The Committee recommended Petitioner’s suspension be reduced to a one week suspension without pay, and Petitioner receive formal supervisor training, and a formal work plan. On February 17, 2009, Respondent’s Chancellor issued a Final Agency Decision on February 17, 2009. Chancellor Steve Ballard reduced Petitioner’s suspension to one week, and directed Petitioner’s supervisor to provide training and a formal work plan to Petitioner. (Respondent’s Exhibits 19, 20, 22).

2. On March 9, 2009, Petitioner appealed his suspension by filing a contested case petition with the Office of Administrative Hearings. Petitioner alleged that Respondent:
a. Suspended Petitioner without just cause in violation of N.C. Gen. Stat. § 126-35.

b. Suspended Petitioner after Petitioner complained about illegal discrimination in violation of N.C. Gen. Stat. § 126-34.1.

c. Discriminated against Petitioner’s national origin by treating Petitioner differently than other similarly situated employees who were born in the US, but of European or African descent.

c. Demoted Petitioner in a defacto fashion, by promoting Petitioner’s assistant to be Petitioner’s equal, and taking away Petitioner’s supervisory authorities.

d. Retaliated against Petitioner for complaining of illegal discrimination, in violation of N.C. Gen. Stat. § 16 & -17, by treating Petitioner differently in the terms, conditions, and privileges of employment compared to similarly situated employees who had not complained of illegal discrimination.

e. Created a hostile work environment based on Petitioner’s national origin, which resulted in Petitioner losing tangible job benefits

(Petition)
Background Facts

3. 
   Petitioner has been an electrical engineer for thirty-six years, and is originally from Bombay, India. (T pp. 165, 166).
   

3. 
   Since December 2000, Petitioner has been employed as a Facilities Electrical Engineer in the Utility Services Department on Respondent’s main campus. At all times relevant to this hearing, Petitioner was the shop supervisor for Respondent’s Electrical shop in the Utility Services Department. (Respondent’s Exhibit 1). (T p. 13)
   

3. 
   Anthony Yamada is the Assistant Director for Utility Services for the main campus at East Carolina University, and is the Petitioner’s immediate supervisor. (T pp. 11). Anthony Yamada’s national origin is Japanese American. Yamada has never worked as an electrical engineer. (T p. 62) Mr. Yamada has worked for Respondent for approximately six and one half years.
   

3. 
   Mr. Yamada is responsible for the utilities on the ECU main campus, including supervising the shops for Steam, HVAC, Electrical, Plumbing, and Life Safety. (T p. 11-12).
   

3. 
   Petitioner is the only shop supervisor who is not a white male born in the United States. (T p. 12).
   

3. 
   When Mr. Yamada began working for Respondent around 2003, Petitioner was head of the Electrical shop. Don Hoggard, Caucasian American, was the only employee who directly reported to Petitioner. Hoggard worked as the day-to-day supervisor of the Electrical shop, and directly supervised ten to twelve employees for Petitioner. Petitioner’s responsibilities included elevators and life safety, such as maintaining fire alarms, exit/egress lights, emergency generators.
   

3. 
   Between December 2000 and 2006, Petitioner received satisfactory performance evaluations from his supervisors, and maintained good relationships with his coworkers and supervisors. Before 2006, Petitioner never received a “below good” rating on his job performance. (T p. 177-78).
   

3. 
   In 2006, Respondent reorganized Utility Services, splitting the Electrical shop into two shops: Electrical and Life Safety. (T pp. 13; 128).
   

a. The reorganization left eight employees, with Petitioner as the supervisor, in the Electrical shop. Petitioner was responsible for the day-to-day control over the Electrical shop activities. At the time of hearing, there were eight “Electrician IIs” capable of performing electrical work. (T p. 14). A ninth employee, an “Electrician I,” was also assigned to the Electrical shop. The Electrician I primarily worked on group re-lamping, except he could not replace ballast in a light. The Electrician I was also responsible for cleaning electrical rooms and mechanical rooms. (T p.174).

b. The reorganization moved five employees to the Life Safety shop. Yamada promoted Petitioner’s subordinate employee, Don Hoggard, to supervisor of the Life Safety shop. (T p. 66). At the time of hearing, there were seven employees, excluding Hoggard, working in the Life Safety shop. (T p. 174).

11. 
    The Electrical shop was responsible for power distribution and lighting on the east campus of East Carolina University through fifty-five electrical transformers that distributed power to fifty-five independent buildings on campus. (T pp. 167-168) The Electrical shop provided services to more than one hundred buildings on the east campus. (T p. 168).
    

12. 
    Each shop performed its duties by responding to work orders generated throughout the university, from either customers or an inspector. (T p. 83-84). The shops handled two types of work orders: (1) corrective orders to respond to a problem, and (2) preventative routine maintenance work orders. Petitioner estimated that of the total work orders, 70% were corrective work orders and 30% were preventative work orders. (T p. 177). The Electrical shop handled a higher volume of corrective work orders than the other shop. (T p. 20)
    

13. 
    The Life Safety shop employees responded primarily to preventative maintenance work orders. (T pp. 64; 196). For that reason, it was easier for this shop to schedule their jobs, and estimate completion times. (T p. 196). When Life Safety functions were handled by the Electrical shop before the reorganization, there were two electricians assigned to those functions. Those employees responded to ten to fifteen percent (10%- 15%) of the total number of work orders sent to the Electrical shop. (T p. 177).
    
14. 
    On a typical day, Petitioner’s shop responded to work orders for lighting or power outages, located underground electrical cables for landscapers or construction projects, and surveyed the work of outside contractors (T p. 169; 171). At least four to five times a week, the Electrical shop is called to locate underground utility lines. (T p. 170). During the last four to five years, there have been at least four ongoing major construction projects on the east campus. (T p. 171) The work performed by employees in the Electrical has a high risk of injury and death. A single mistake may cost a life. (T pp 194-195) Because the Electrical shop responded primarily to corrective work orders, it did not control the volume of work orders it received each day. (T p. 65). As a result, priorities shift daily, and there was less opportunity for planning. (T p. 87).
    

13. 
    The Electrical shop also handled a significant volume of preventative maintenance activities such as: performing maintenance on the fifty-five transformers on the east campus, surveying and maintaining the infrared sensor system throughout the buildings, conducting a monthly survey of exterior lights on the campus including sign boards and blue light phones used for contacting the police department, working with contractors on out-sourced jobs, and installing motion sensors campus-wide for energy conservation purposes. (T pp. 175-176)
    

13. 
    Electricians in the Electric Shop were required to work, or be “on-call” for “special events” at the university, such as football, basketball, and volleyball games; Halloween and Christmas events on campus; “move-in weekend” when students are moving into on-campus dormitory rooms; as well as events conducted by individual departments, the Student Recreation Center, and the Theater program. (T p. 173).
    

13. 
    Petitioner’s job required him to coordinate the work activities of the Electrical shop with each individual who controlled the buildings where Petitioner’s electricians perform their work. (T p. 80).
    

13. 
    In the spring of 2007, Petitioner was required to devote resources to a campus-wide “re-lamping” project, leaving his shop without the Electrician I and, at times, an Electrician II, to address corrective work orders. (T p. 82)
    

13. 
    In late April 2007, Yamada told Petitioner that his section would be unable to take part in the summer flex schedule until the Electrical shop maintained its outstanding work order backlog below fifty for two consecutive weeks.
    

13. 
    On May 3, 2007, Yamada issued a coaching letter to Petitioner, identifying the following eight problem areas of Petitioner’s job performance:
    

(1) Management of the Electrical shop;

(2) Shop spaces in the warehouse must be improved and maintained;

(3) The need to lower backlogs of work orders to below fifty on a

sustained basis;

(4) A plan for the group re-lamping needs to be developed;

(5) The need to finalize the infrared inspection report from last year;

(6) The infrared contract needed to be modified per Petitioner’s

recent training;

(7) Working inventories for the Main Campus and Dining Services

must be developed and maintained; and

(8) Power upgrade requests must follow established procedures.

21. 
    Yamada generally believed that Petitioner had not organized his shop’s space in the warehouse, which made it very difficult to track inventory (No. 2). As to No. 3, Yamada believed that based on the number of personnel in Petitioner’s section, the Electrical shop should be able to handle about twenty-five work orders per day, especially since many of the work orders were changing light bulbs. Yamada did not believe that Petitioner was keeping staff productive. He hoped that the coaching letter would spur Petitioner to action. (Resp. Exh. 6; T pp. 23-28)
    

21. 
    Supervisor Yamada expected the Electrical shop employees to work the extra 30 overtime hours per week in addition to overtime they were already required to work to cover special events. Working a special event on campus typically required an electrician to work ten to twelve hours. (T pp. 92; 183). As a result, Yamada expected the Electrical shop employee, who had worked ten to twelve hours of overtime for a special event, also to work an additional four hours per week to address the work order backlog in the Electrical shop. (T p. 183)
    

21. 
    On May 7, 2007, Petitioner provided a written response to Yamada’s May 3, 2007 coaching letter, and responded to each of Yamada’s concerns. (Resp Exh 7)
    

21. 
    By letter dated May 10, 2007, Yamada commented on Petitioner’s response. Essentially, Yamada believed that Petitioner’s response did not sufficiently justify Yamada’s concerns, and failed to “take ownership” of the problems in his response. (Resp Exh 8)
    

21. 
    On May 15, 2007, Petitioner submitted detailed plans to Yamada to cover outstanding electrical work orders, group re-lamping, and an infrared survey. (Resp Exh 9) Petitioner specifically requested additional electricians to handle the backlog of 100-125 work orders, and group re-lamping. Petitioner described a detailed plan for addressing the backlog and group re-lamping with these additional resources.
    

21. 
    By letter dated May 17, 2007, Yamada responded to Petitioner’s submitted plans. Mr. Yamada was not completely satisfied with Petitioner’s plans. Yamada thought Petitioner’s main argument was that he needed additional personnel to handle his shop’s workload, but Yamada did not believe that Petitioner had sufficient justification for this request. Yamada believed that if Petitioner demonstrated that he could not improve the backlog of work orders, then they would have a better justification for additional personnel from the University. Petitioner also raised concerns about safety, but Yamada did not believe that safety would be compromised by this approach. Petitioner raised concerns about a lack of training in charging stock to work orders. Yamada instructed another supervisor, Chad Faulkner, to provide Petitioner this training. (Resp Exhs 9-10)
    

21. 
    During a monthly shop meeting in September 2007, employees in the Electrical shop complained to Yamada that they were being singled out for excessive overtime work. (T p. 187). The Electrical shop employees advised Yamada that they would like to talk with Yamada’s supervisor, Ken Kisida, about their concerns. Yamada told the Electrical shop employees that if they worked the overtime as he requested, he could justify asking for additional electricians. (T p. 187). The employees were cooperative and made efforts to comply with Yamada’s directive. (T p. 188; 195; 200).
    

21. 
    In a September 28, 2007 email, Supervisor Yamada informed Ken Kisida, Yamada’s supervisor, of the Electrical shop employees’ concern that they were the only shop having to work overtime. Yamada admitted that the electricians in the Electrical shop were frustrated over “prolonged periods of having to work overtime while the shop has not been fully staffed.” (T p. 96). Yamada advised Kisida that, “If they don’t get answers, they’ve mentioned going to OSP and getting them involved.” (Petitioner’s Exhibit 3) In this email, Supervisor Yamada also admitted that:
    

[W]hen we did the split at the Electrical shop and formed the Life Safety shop, we estimated how many would be needed in each. I think we did well in Life Safety but not so for Electrical, particularly for the large increase in work orders generated by ME [Maintenance Engineering inspector].

(Petitioner’s Exhibit 3; T p. 100)

21. 
    Despite Yamada’s email statements to his supervisor, and telling the employees that he wanted them to work additional overtime to justify a request for additional resources, Supervisor Yamada approved the transfer of one electrician from the Electrical shop to the Life Safety shop. (T pp. 98-99) Yamada approved the transfer even though the Electrical shop’s work orders were already backlogged by one hundred to one hundred twenty-five work orders (100-125). The employee was allowed to transfer after Respondent’s management declined to provide him with a promotion in the Electrical shop. (T p. 189-190) It took three to six months to replace the electrician who moved from the Electrical shop to the Life Safety shop. (T p. 190).
    

21. 
    In November 2007, Supervisor Yamada issued a written warning to Petitioner for unsatisfactory job performance. (Respondent’s Exhibit 12). Yamada based this warning on Petitioner’s failure to reduce the backlog of work orders below fifty, and failure to exercise sufficient leadership and make sufficient efforts to get his staff to work the requested thirty hours of overtime. Yamada warned that Petitioner had failed to follow proper procurement procedures in two incidents involving Athletics projects. Petitioner’s section allegedly procured contractors and services without receiving prior approval as required by University policy. (Respondent’s Exhibit 12; T pp. 35-41) Yamada felt Petitioner had not addressed his prior performance issues, particularly related to the overtime issue, and that Petitioner was the only supervisor who had committed this particular procurement violation.
    

21. 
    Each year the Electrical shop was required to put Christmas lights around the Chancellor’s residence. In December 2007, after the project was completed, Supervisor Yamada complained to his supervisors that the lighting project required a lot of electrician hours for “a resource-short shop” to absorb. (Petitioner’s Exhibit 17) Yet, the number of hours required to complete the job was approximately the same number as was required each year. (T p. 240).
    

21. 
    On January 22, 2008, Yamada issued Petitioner a second written warning for unsatisfactory job performance. Yamada cited Petitioner for failing to bring the Electrical shop’s work order backlog below fifty on a sustained basis, and failing to make his employees work thirty hours per week overtime. Yamada’s monitoring of the employees’ weekly timesheet logs showed that Petitioner had only complied with the thirty hour overtime request one time, and Petitioner had not attempted to ask his employees to work the thirty hour overtime on a sustained basis. (Respondent’s Exhibit 13; T pp. 41-43)
    

21. 
    In May 2008, Supervisor Yamada conducted Petitioner’s 2007-08 annual performance review. Yamada gave Petitioner a “below good” overall rating.
    

a. In the Goals and Expectations section of “Plans, organizes, and leads shop effectively,” Yamada rated Petitioner “below good,” because Petitioner failed to address the shop order backlog using the thirty hour overtime request. Yamada rated Petitioner “below good” in “maintaining positive and respectful working relationships,” and “ensuring that proper documentation is completed for each job task.” Yamada did not believe that Petitioner was exercising adequate control or supervision over his staff, and that Petitioner did not follow the procurement regulations and procedures. In the Dimensions section of the evaluation, Yamada rated Petitioner “below good” in “project management,” based on his failure to follow procedures. Yamada rated Petitioner “below good” in “leading work teams” due to continued concerns about Petitioner’s planning, requests to refill inventory, and failure to control the backlog.

b. In this evaluation, Yamada rated Petitioner as “good” in the Behavioral Competencies of “human resource management, maintaining satisfactory working relationship with supervisor, knowledge-technical necessary for the job, safety and health management, and financial management.” (Respondent’s Exhibit 14, T p. 108).

21. 
    During June of 2008, the university implemented a career-banding program, and changed the job titles of employees in the Engineering Branch. Petitioner’s job title changed from Facilities Electrical Engineer to Engineer. Petitioner’s salary and responsibilities remained unchanged.
    

21. 
    In August of 2008, due to the career banding change and upon the advice of Human Resources, Yamada conducted another performance evaluation of Petitioner.
    

a. Again, Yamada rated Petitioner’s performance “below good” in the areas of “project management,” and “leading work teams.” Yamada was still concerned with Petitioner’s lack of leadership and supervision.

b. However, in contrast to the “good” rating in the May 2008 evaluation, Yamada rated Petitioner “below good” in competency area of “human resource management.” Mr. Yamada explained that the changed requirements of that competency caused him to change his rating in that area. Yet, on cross-examination, Yamada could neither explain why the same competency areas were assessed differently between May and August 2008, nor could he explain why Petitioner was asked to sign the August 2008 document without ratings having first been provided. (T pp 109-111).

21. 
    Between January 2008 and November 2008, Petitioner did not receive any disciplinary actions from Yamada.
    

21. 
    In November 2008, Petitioner requested Mr. Yamada approve him to attend training on sequencing of breakers. Mr. Yamada did not approve Petitioner’s training request, because he allegedly wanted training done for the entire Electrical shop. Since Petitioner had to make a reservation for the training in a limited time, he approached Yamada’s supervisor, Bill Bagnell, regarding his training request.
    

a. Bagnell directed Petitioner to speak with Interim Director Ricky Hill. Petitioner met with Mr. Hill, and advised Hill of his concerns about Yamada’s treatment of him. Petitioner complained that the attitude of his supervisor was inconsistent with the Chancellor’s requirement that diversity be honored at the university. Petitioner referenced the Chancellor’s requirement, because he believed the Chancellor was referring to respecting “all communities, all religions,” considering “everybody equal on this campus.” (T p. 226) Petitioner presented Mr. Hill with a draft complaint against workplace harassment and discrimination. Petitioner intended to send to his complaint to the university’s Equal Employment Office (EEO). (T pp 113; 224-225) (Petitioner’s Exhibit 11). Petitioner requested an opportunity to discuss the issue with Bagnell and Hill. (T p. 225).

b. After reading Petitioner’s complaint, Hill indicated that he would speak with Mr. Bagnell about Petitioner’s concerns, and contact Petitioner. (T p. 226-27) Petitioner was not offered an opportunity to speak with Mr. Bagnell.

21. 
    After that meeting, Ricky Hill spoke with Anthony Yamada about Petitioner’s complaints. (T p. 114).
    

21. 
    On the afternoon of November 10, 2008, within one week to ten days after Petitioner presented his complaint to Mr. Hill, Mr. Yamada gave Petitioner a notice for a pre-disciplinary conference. (Respondent’s Exhibit 17) The notice asked Petitioner to appear for the conference on November 11, 2008. (T p. 116). Mr. Yamada authored the notice, repeating all of the criticisms Yamada had made against Petitioner since 2007. Yamada recommended Petitioner be given a two week suspension without pay for unsatisfactory job performance. (Respondent’s Exhibit 17).
    

21. 
    By letter dated November 11, 2008, Petitioner responded to the allegations in the November 10, 2008 notice of pre-disciplinary conference. Petitioner noted that with one exception, each of his supervisor’s concerns either had been addressed, or was factually incorrect. (Respondent’s Exhibit 18) Regarding his supervisor’s requirement that work orders be kept below fifty, Petitioner stated:
    

Every effort has been put in to have this number achieved, however you should appreciate that the work orders generated by the system are not under my control. With the available resources there are days when this number has been achieved.

(Respondent’s Exhibit 18)

21. 
    When Petitioner attended the November 11, 2008 conference, the only issue Mr. Yamada discussed was the directive that employees work more overtime to maintain a backlog of fifty work orders on a sustained basis. (T p. 229) Yamada did not discuss his criticism regarding the fourteenth street warehouse (T p. 230), the re-lamping project (T p. 231), or the infrared contract inspections. (T p. 231) Yamada did not express disagreement with Petitioner’s statements that delays in the infrared inspections were caused by Yamada’s requests for modifications in the contract (T p. 231), nor did he express disagreement with Petitioner’s statement that the Electrical shop coordinated with the HVAC shop whenever an electrical load addition was contemplated. (T p. 232).
    

21. 
    During that conference, Petitioner presented Mr. Yamada with the draft EEO complaint that he had presented to Mr. Hill. (T p. 114). Petitioner also advised Mr. Yamada that he believed Mr. Yamada’s actions were the result of discriminatory animus. ( T pp. 114-15).
    

21. 
    On November 17, 2008, Mr. Yamada issued a Notice of Two Week Suspension without Pay to Petitioner based on his unsatisfactory job performance since Petitioner’s April 30, 2007 performance evaluation. (Respondent’s Exhibit 19)
    

Analysis

21. 
    A preponderance of the evidence at hearing showed that Supervisor Yamada treated Petitioner, and his employees, differently than other similarly situated employees in Utility Services.
    

21. 
    First, Mr. Yamada did not require or expect, any other shop, or any other shop supervisor whom Yamada supervised, to maintain their backlogged work orders below 50 on a sustained basis. (T p. 199-200)
    

21. 
    In 2007, Mr. Yamada instructed Ruthie Fairbanks, his administrative assistant, to compile reports on overtime worked by the Electrical shop employees by using the employees’ weekly timesheets. Mr. Yamada did not instruct Fairbanks to compile similar reports on overtime worked by any other shops he supervised. (T p. 130) Fairbanks made comments or explanations in the report whenever an employee worked more than a straight five-day, eight-hour-each-day workweek. She forwarded this reports electronically to Yamada each week. (T p. 130-133) She compiled these reports for about 15 to 18 months until “we got the new budget restriction guidelines that stated no more overtime.” (T p. 130)
    

a. At hearing, Ms. Fairbanks opined that her weekly reports showed, “consistently, there was not over thirty hours of overtime” worked by the Electrical shop employees. (T p. 132) Yet, neither Mr. Yamada nor Ms. Fairbanks produced these reports at hearing to support their position. On cross-examination, Fairbanks acknowledged that an employee’s bi-weekly timesheet would not show overtime hours, if the employee had taken compensatory time during the same pay period, as compensation for the overtime worked. (T. pp. 134-137)

b. An employee is entitled to one and one-half hours of compensatory time for each hour worked. Fairbanks agreed that university policy requires an employee use compensatory time within the same pay period that the employee earns the overtime. (Petitioner’s Exhibit 5; T pp. 122; 125) Petitioner’s Exhibit 5 demonstrated that Respondent’s supervisors were told that, “supervisors should allow and encourage to keep from paying out OT.” (Respondent’s Exhibit 5)

21. 
    Second, Petitioner established that Yamada assigned a disproportionate amount of the workload to the Electrical shop compared to the other shops under Yamada’s supervision.
    

a. Petitioner’s Exhibit 4 lists the work order history for each of the shops in Respondent’s Facility Services Department, including Utilities Services. Using this history, Petitioner explained that if you divide the total number of work orders for the Electrical shop for 2008 (i.e. 5991), by the number of personnel available to respond to those work orders in that Shop (i.e. 8 employees), the per person requirement of work orders for each Electrical shop employee is seven-hundred forty eight work orders (748) per year.

b. By contrast, dividing the total number of work orders for the HVAC shop (i.e.. 9052) by the number of available personnel in HVAC (i.e. 22 employees), the per person requirement of work orders for each HVAC employee is just four hundred eleven (411) work orders per year. Anthony Yamada also supervised the HVAC shop. (T p. 191-192). (Petitioner’s Exhibit 5)

21. 
    Third, Petitioner repeatedly complained to Supervisor Yamada that he did not have sufficient staff or resources to perform his shop’s responsibilities and meet the additional overtime requirements. Yamada told Petitioner that his primary problem with Petitioner’s request for additional resources is that Petitioner made the request “after the fact,” or after the split of the Electrical shop into two different shops, a process in which Petitioner had participated. (T p. 19; 71-72) Yamada further advised Petitioner that the Electrical shop’s failure to improve the backlog of work orders with the current staff level would support sufficient justification for additional electricians. For those reasons, Yamada would not consider Petitioner’s request for adding or shifting resources to Petitioner’s shop.
    

a. Contrary to Yamada’s statements, evidence at hearing showed Yamada’s failure to consider Petitioner’s request for additional staff was unjust and without merit. A preponderance of the evidence showed that Yamada was well aware of the disproportionate workload assigned to the Electrical shop, and of that shop’s need for additional employees. In his September 28, 2007 email to his supervisor, Yamada admitted that the Electrical shop employees were frustrated over having to work “prolonged periods” of overtime “while the shop has not been fully staffed.” (T p 96). Yamada also admitted they did not do well in estimating the need for staff in the Electrical shop staff, and the large increase in work orders generated by ME. (Petitioner’s Exhibit 3, T p 100)

b. A preponderance of the evidence proved that the employees in the Life Safety shop wanted to work overtime, were qualified to work in the Electrical shop, and viewed the opportunity to earn overtime pay as a benefit. Several HVAC shop employees used to work in the Electric Shop and were qualified to assist with the Electrical Shop’s disproportionate workload. Those employees were allowed to transfer to the HVAC shop to receive higher salaries. (T p. 73, 102, 197-198) Work associated with the baseball field, a job that would ordinarily have been an Electrical shop assignment, had been given to the Life Safety shop, so that those employees would have an opportunity to earn overtime pay (T p. 197).
c. Yamada had advised Petitioner that the Electrical shop’s failure to improve the backlog of work orders with the current staff level would support sufficient justification for additional electricians. Yet, when Petitioner and his staff failed to address the work order backlog sufficiently to Yamada’s liking, Yamada did not use that failure to justify a request for additional staff. Instead, Yamada disciplined Petitioner for unsatisfactory job performance.

21. 
    Fourth, Petitioner’s and his staff receipt of less computer equipment and fewer resources than Yamada’s other shops showed Yamada’s disparate treatment of Petitioner. It was common for employees in the Utilities Services department to have access to laptop computers for accessing and editing work orders and procurement. Petitioner thought laptop computers would result in greater efficiency for the employees in the Electrical shop, because they could access work order tickets anywhere on campus. (T p. 204) All Life Safety shop personnel had laptop computers. However, despite the significant workload, the Electrical shop employees were required to share one computer inside the shop area. Additionally, Life Safety shop employees also used the Electrical shop’s computer, further reducing the access of Electrical shop staff to their computer.(T p. 202-204)
    

21. 
    Fifth, Respondent’s “on-call” policy allowed one of the employees who was assigned to work a special event to also be designated as the employee who was “on-call” for the duration of that event. (Petitioner’s Exhibit 9, 10). Other shops, including the plumbing shop, which was supervised by Yamada, were permitted to operate pursuant to this rule. However, Mr. Yamada did not permit the Electrical shop to operate pursuant to this rule. Instead, the Electrical shop personnel was required to use three employees for a special event, and then designate a separate, fourth employee to be available “on-call.” (T pp. 220-222).
    

21. 
    Mr. Yamada criticized Petitioner for failing to charge requested improvements properly. However, the evidence established that Respondent’s procurement system automatically charged improvements to the proper account. A customer’s requested improvement automatically came with a work order, and that work order included the account number to be charged for the improvement. (T p 206) Therefore, Yamada was disparaging Petitioner for problems that failed to exist.
    

21. 
    Mr. Yamada complained that Petitioner failed to coordinate with other utility shops, such as HVAC shop, on projects. Yet, the Electrical shop only needed to coordinate with one other utility shop, the HVAC shop. The Electrical shop only needed to coordinate with HVAC shop on jobs involving a significant change in the load condition that affect HVAC. There were only a few projects of that kind. As a result, Yamada asked Petitioner to coordinate with other shops on projects that did not require coordination. (T pp. 206-208)
    

21. 
    Mr. Yamada criticized Petitioner for failing to maintain an orderly workspace in the warehouse, and failing to keep an ordered inventory. However, the preponderance of the evidence showed that these matters were problems for all of the Utilities Services shops. (T p. 86) Petitioner was the only shop supervisor whose performance was negatively evaluated by Yamada, because of the warehouse and inventory. (T p. 86).
    

a. Evidence established that Petitioner had the warehouse cleaned and an inventory established in 2007. (T p. 32; 86). Regarding inventory, Petitioner assigned an employee to check inventory regularly. Petitioner obtained the inventory report, and then reported the inventory levels to the Purchasing Agent. Petitioner had established minimum and maximum levels for various items of inventory, and had communicated that information to the Purchasing Agent. Additionally, the goals and expectations in Petitioner’s formal Performance Appraisal did not require Petitioner to complete procurement processes online or maintain inventory online. (Petitioner’s Exhibit 7; T pp. 211-212).

b. Yamada acknowledged that Petitioner’s performance improved, and that Petitioner cleaned up the warehouse, established inventory, and began the re-lamping program. Nevertheless, while Yamada admitted that improvements had been made in 2007, Yamada continued to repeatedly evaluate Petitioner’s performance in a negative manner regarding Petitioner’s handing of the warehouse and the inventory. (Respondent’s Exhibits 17, 19)

21. 
    Mr. Yamada criticized Petitioner for failing to complete the maintenance of the fifty-five transformers in a timely manner. Yamada insisted the Electrical shop employees send the fluids from all fifty-five transformers for chemical analysis before the employees began maintenance on the transformers. Petitioner advocated beginning maintenance on the oldest transformer, and working through the inventory of transformers. Following Petitioner’s method, the university could avoid the unnecessary cost of a building shutdown only for the purpose of analysis. Petitioner thought that Mr. Yamada’s way of performing maintenance actually delayed the transformer maintenance. Because of Yamada’s insistence that the transformers be analyzed all at once before beginning maintenance, the university had “a nice report on paper,” but a long way to go in accomplishing the maintenance required. (T pp 212-214).
    

21. 
    Supervisor Yamada reprimanded Petitioner for failing to complete the re-lamping project at Blount field and another athletic facility in a timely manner. Evidence at hearing showed that an outside contractor undertook those re-lamping projects. The facilities to be re-lamped were controlled, not by Petitioner, but by auxiliary units with the authority to decide when the work was to be done. (T pp. 215-216). The re-lamping work order was kept open, only because the contractor was simply awaiting new pegs to replace old pegs on the poles. The lamps were replaced in time, but the pegs on the poles were not replaced on time. Awaiting the replacement pegs did not affect the utilization of the field or any of the sports activities on that field. (T p. 217) Eventually, the university abandoned the re-lamping project due to cost and the impracticality of replacing bulbs that were still useful.
    

21. 
    Yamada also reprimanded Petitioner for failing to following proper procedures when a contractor was moved from one project to another without a purchase order. Petitioner explained that the contractor was ordered to the second site by the Athletic Department, who did not consult with Petitioner. Petitioner was not authorized to prohibit the Athletic Department from ordering the contractor to another site. (T p. 218). While Petitioner was disciplined for the movement of the contractor, there is no evidence that anyone in the Athletic Department, which ordered the move, was ever disciplined for the same. (T p. 219).
    

21. 
    Mr. Yamada criticized Petitioner for failing to provide information to Ms. Fairbanks in a timely manner. (Petitioner’s Exhibits 9, 10; T p. 129) At hearing, Ms. Fairbanks alleged that she had to ask Petitioner for information on multiple occasions. In reality, Fairbanks cited only one time she requested information from Petitioner multiple times. On that occasion, Petitioner had already supplied the information Fairbanks requested.
    

21. 
    Since Ms. Fairbanks’ opinion of Petitioner’s performance was not a basis upon which Mr. Yamada based his suspension of Petitioner, the undersigned will not consider Fairbanks’ opinion to substantiate or bolster Respondent’s claims in this case.
    

21. 
    Chad Faulkner, a Caucasian American, handled purchasing and budget issues for Yamada’s section. Faulkner noted that Petitioner and his staff had repetitive problems following purchasing procedures, despite training. Faulkner alleged that on more than one occasion, Petitioner’s employees appeared to leave early or not work during business hours. However, since Mr. Faulkner’s claims were not listed as the basis for Respondent suspending Petitioner for unsatisfactory job performance, and Faulkner expressed no personal knowledge or involvement in Petitioner’s supervision of the Electrical shop and its employees, Mr. Faulkner’s opinions on Petitioner’s job performance are irrelevant to the issues in this case.
    

21. 
    Even after Petitioner was suspended from work, Mr. Yamada continued disparaging Petitioner. From January through April 2009, Supervisor Yamada held bi-weekly coaching sessions with Petitioner, and criticized Petitioner for failing to make his employees work sufficient overtime hours. (T p. 185) During the same time, the university paid the employees in the Electric Shop for working between fifty-two and one hundred thirty-six overtime hours for January 14, 4009 through April 15, 2009. (Petitioner’s Exhibit 1; T pp. 184-185)
    

21. 
    In April or May 2009, university employees could not work overtime without express authorization and justification due to economic and budgetary constraints. (T p. 198-99) Despite the university’s express proscription against having to compensate overtime work in salary, Petitioner still received a “below good” rating in his 2009 performance appraisal for failing to have his shop employees work an extra thirty hours overtime. (Petitioner’s Exhibit 7; T p 199)
    

21. 
    At hearing, Petitioner cited two employees who had committed violations of policy who were not disciplined by Respondent. In the first case, Yamada did not discipline an individual who used state fuel for his personal van. (T pp 234-235). In the second instance, Yamada did not discipline an employee who violated the university’s sexual harassment policy after the complaint was reported to Mr. Yamada. (T p. 236).
    

21. 
    In contradiction to the Chancellor’s order in the February 17, 2009 Final Agency Decision, Supervisor Yamada had not provided Petitioner with formal work plan as of the date of the hearing.
    

CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, the undersigned concludes as follows:

1. 
   The Office of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapters 126 and 150B of the North Carolina General Statutes.
   

2. 
   All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder. To the extent the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.
   

3. 
   N.C. Gen. Stat. § 126-34.1(a) provides that:
   

A State employee or former State employee may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes only as to the following personnel actions or issues: . . .

(2) . . . b. Demotion, reduction in force, or termination of an employee in retaliation for the employee's opposition to alleged discrimination on account of the employee's age, sex, race, color, national origin, religion, creed, political affiliation, or handicapping condition as defined by Chapter 168A of the General Statutes.
(3)      Retaliation against an employee, as proscribed by G.S 126 17, for protesting an alleged violation of G.S. 126 16.
4. N.C. Gen. Stat. §126-16 prohibits discrimination based upon, inter alia, national origin.
5. N.C. Gen. Stat. §126-17 prohibits retaliation against any individual who has protested violations of N.C. Gen. Stat. 126-16.
6. The North Carolina Supreme Court has adopted the United States Supreme Court’s “burden shifting” proof scheme set out in the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for the purpose of evaluating the sufficiency of the evidence presented in a discrimination claim. N.C. Department of Correction v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983) (stating that the ultimate purpose of Title VII and the North Carolina statute is the same); See Enoch v. Alamance County Dep't of Soc. Servs., 164 N.C. App. 233, 242, 595 S.E.2d 744, 752 (2004) (stating the same is the case for N.C. Gen. Stat. §126-16)
7. North Carolina looks to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases. Id., citing Gibson, at 141, 301 S.E.2d at 85.
8. Under the McDonnell Douglas framework, Petitioner must show that:
(1) He is a member of a protected class;

(2) He was qualified for the position he held;

(3) He was subject to an adverse employment action; and

(4) is protected class status was the reason for the

adverse employment action.