State of north carolina

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.
McDonnell Douglas, 411 U.S. at 802.
9. Once Petitioner has established the essential elements of a discrimination claim under the burden-shifting framework, the burden shifts to the Respondent to show that the adverse action was taken for a legitimate nondiscriminatory reason. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Where the defendant has met its burden to produce evidence of a legitimate nondiscriminatory reason for the employment action, the plaintiff must then be afforded the opportunity to show that the reasons offered by the defendant were not its true reasons but were, instead, a pretext for discrimination. Id., at 253.

10. 
    A Petitioner may show that the defendant’s proffered explanation for the employment action is “unworthy of credence.” Id., at 256. A trier of fact may determine that the employer’s explanation is a pretext for discrimination by inferring from the evidence presented by the employer that the employer’s explanation is disingenuous. Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 147-148 (2000).
    

11. 
    Circumstantial evidence of discrimination can be as probative, and in some cases more probative, of discrimination than direct evidence, and, is sufficient to create a genuine issue of material fact. Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 (2003). In Desert Palace, the Supreme Court stated,
    

The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’

539 U.S. at 100, quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17.

11. 
    Our courts have recognized that direct evidence of discrimination is rarely available because sophisticated employers generally will conceal their true motivations for taking the adverse employment action at issue. See Kolstad v. Am. Dental Assoc., 527 U.S. 526, 551, 199 S.Ct. 2118, 2132 (1999); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464 (2d. Cir. 1989); Dister v. Continental Group, Inc., 859 F.2d 1108, 1112 (2d Dir. 1998), Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir. 1996). In Hopson v. Daimlerchrysler Corp., 306 F.3d 427, 436 (6th Cir. 2002), the Court wrote:
    

We recognize that 'Title VII does not diminish lawful traditional management prerogatives in choosing among qualified candidates.' We also recognize, however, that: discrimination victims often come to the legal process without witnesses and with little direct evidence indicating the precise nature of the wrongs they have suffered. . . . Cases charging discrimination are uniquely difficult to prove and often depend upon circumstantial evidence. . . .An employer who knowingly discriminates . . . may leave no written records revealing the forbidden motive and may communicate it orally to no one. . . .

11. 
    In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Supreme Court held that “a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Id. at 148. “It is permissible to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Id. at 147.
    

11. 
    A double standard can be evidence of pretext. In the McDonnell Douglas case, the Court reviewed the employer’s proffered reasons and noted that:
    

[e]specially relevant to such a showing would be evidence that white employees involved in acts against [the employer] of comparable seriousness to the ‘stall-in’ were nevertheless retained or rehired. [The employer] may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.

(Emphasis supplied). McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 804.

11. 
    The consistency of an employer’s explanations for its actions is also evidence of pretext. See, Zaccagini v. Chas Levy Circulating Co., 338 F.3d 672, 677 (7th Cir. 2003) (the consistency of the explanation provided by an employer at the time of an employment decision and in an administrative proceeding is evidence of the veracity of the employer’s explanation); Dominguez-Cruz v. Suttle Carible, Inc., 202 F.3d 424, 432 (1^st Cir. 2000) (“When a company at different times offers different and arguably inconsistent explanations, a jury may infer that the articulated reasons are pretextual.”)
    

11. 
    In this case, Respondent suspended Petitioner from work for one week without pay for unsatisfactory job performance. Respondent contended that it suspended Petitioner, because Petitioner did not keep the work order backlog in the Electrical shop below fifty at a sustained level. However, the preponderance of the evidence showed that Petitioner made every effort to comply with his supervisor’s request. The backlog of work orders was also due to Electrical shop having more corrective work orders than other shops, and thus, a disproportionate amount of the workload. Once the Electrical shop was split into two shops, a Maintenance Engineer inspector generated a large increase in the work orders sent to the Electrical shop. Yamada admitted that they did not do a good job, during the reorganization, of estimating the workload for the Electrical shop. A smaller group of employees in the Electrical shop was being asked to respond to both to an increased backlog, and to special events at the university. Both the increased backlog and special events at the university demanded employees work overtime.
    

11. 
    Supervisor Yamada’s explanation for disciplining Petitioner was not worthy of credence. Yamada stated that Petitioner’s claims that the shop was without sufficient resources was unjustified; yet, Yamada made the same claim to his own supervisors on at least two occasions in 2007.
    

11. 
    Supervisor Yamada’s explanation for disciplining Petitioner may also be viewed as pretextual, in that Yamada displayed animus toward Petitioner by applying rules differently to Petitioner compared to other shops.
    

11. 
    Individuals supervised by Yamada who committed serious transgressions, such as stealing fuel from the state, did not receive any disciplinary action that resulted in a loss of pay.
    

11. 
    The fact that a decision maker is a member of a protected class does not give rise to an inference of nondiscrimination. In Castaneda v. Partida, 430 U.S. 482, 499-501 (1977), the Court rejected the assertion “that human beings would not discriminate against their own kind.” In Oncale v. Sundowner Offshore Services, Inc., et al., 523 U.S. 75, 78 (1998), the Supreme Court again dispensed with the argument (in the context of same-sex harassment) as follows:
    

. . . In the related context of racial discrimination in the workplace, we have rejected any conclusive presumption that an employer will not discriminate against members of its own race. ‘Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group.’ (citation omitted).

523 U. S. Ct. at 78. See also, Ross v. Douglas County, 234 F.3d 391, 396 (8th Cir. 2000) (“We have no doubt that, as a matter of law, a black male could discriminate against another black male, because of that individual’s race”); Wexter v. White’s Furniture, 317 F.3d 564, 572-73 (6^th Cir. 2003) (en banc) (discussing the ‘same actor’ inference and stating that, “although the fact-finder is permitted to draw this inference, it is by no means a mandatory one and may be weakened by other evidence”); Campbell v. Town of Southern Pines, 401 F. Supp. 2d 480 (M.D.N.C. 2005) (declining to apply the “same actor” inference where there was evidence that the Plaintiff was being treated differently because she failed to meet stereotypical expectations).

11. 
    The Second Circuit rejected a similar argument in an age discrimination case called Danzer v. Norden Systems, Inc., 151 F3d 50, 55 (2d Cir. 1998), where the Court stated that "the proposition that people in a protected category cannot discriminate against their fellow class members is patently untenable."
    

11. 
    Under the federal anti-discrimination statutes, a Petitioner may show retaliation by showing that after engaging in protected activity, he suffered an adverse employment action. James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4^th Cir. 1997). The Supreme Court has recently defined “tangible employment action” to include not only "hiring, firing, failing to promote, . . . [and] significant change in benefits," but also "reassignment with significantly different responsibilities." Burlington Industries, Inc., v. Ellerth, 534 U.S. 742 (1998) (discussing "tangible employment action" as trigger for employer's strict liability under Title VII for supervisor's discriminatory acts); see also Reinhold v. Commonwealth of Virginia, 151 F.3d 172, 175 (4^th Cir. 1998). See also, Spears v. Mo. Dep’t of Corr. & Human Res., 210 F.3d 850, 853 (8^th Cir. 2000) (noting that “[a]n adverse employment action is a tangible change in working conditions that produces a material employment disadvantage”).
    

23. "An employee may prove causation with circumstantial evidence that justifies an inference of a retaliatory motive." Pope v. ESA Servs., Inc., 406 F.3d 1001, 1010 (8th Cir. 2005) (internal marks omitted). While temporal proximity alone generally will not suffice to create a genuine issue of fact on a retaliation claim, the timing issue is evaluated along with the other evidence in the record to determine whether the evidence was sufficient to support the conclusion. Tatum v. City of Berkeley, 408 F.3d 543, 555 (8th Cir. 2005); E.E.O.C. v. Kohler, 335 F.3d 766, 773, n.7. "[T]emporal proximity rises in significance the closer the adverse activity occurs to the protected activity." Id. at 774.

24. In this case, Petitioner engaged in a protected activity when he spoke with Respondent’s supervisor Ricky Hill, and presented his complaint that he believed Yamada’s treatment was inconsistent with the Chancellor’s stated goals on valuing diversity, i.e. treating employees equally regardless of their community.
25. Within a week after Petitioner participated in this protected activity, Respondent disciplined Petitioner by taking the adverse employment action of suspending Petitioner for two weeks.
26. A preponderance of the evidence showed that Respondent, through its employee Mr. Yamada, unlawfully discriminated against Petitioner based on Petitioner’s national origin, in violation of N.C. Gen. Stat. §126-16, 126-17, and § 126-34.1 by treating Petitioner differently in the terms, conditions, and privileges of employment as compared with similarly situated employees who were not Hindu Indian, and by suspending Petitioner from employment for one week without pay.

27. 
    A preponderance of the evidence established that Respondent, through its employee Mr. Yamada, retaliated against Petitioner for engaging in protected activity covered under N.C. Gen. Stat. § 126-16 and 126-17 by suspending Petitioner from employment for one week without pay.
    

27. 
    N.C. Gen. Stat. §126-35 states, “no career employee may be discharged, suspended, or demoted for disciplinary reasons except for just cause.”
    

27. 
    “Just cause” is not defined in the statute, but includes “unacceptable personal conduct” or “unsatisfactory job performance.” North Carolina Dep’t of Correction v. McNeely, 135 N.C. App. 587, 521 S.E.2d 730 (1999).
    

27. 
    25 NCAC 1J .0614(j) defines “unsatisfactory job performance” as:
    

work-related performance that fails to satisfactorily meet job requirements as specified in the relevant job description, work plan, or as directed by the management of the work unit or agency.

27. 
    Respondent has the burden of proving that it had just cause to suspend Petitioner from employment. N.C. Gen. Stat. § 126-35(d).
    

27. 
    The preponderance of the evidence established that Petitioner and his employees made progress toward, and periodically met, his Supervisor’s goal of reducing work orders below fifty. A preponderance of the evidence proved that Supervisor Yamada’s requirement, that work orders be reduced below fifty by requiring employees to work more overtime than they were already required to work, was an unreasonable requirement given, (1) the number of employees in the Electrical shop, (2) the volume of the work in the Electrical shop, and (3) the university’s requirement that employees be compensated for overtime work with compensatory time rather than salary.
    

33. A preponderance of the evidence showed that Supervisor Yamada’s criticisms, that Petitioner was not completing other work in a timely manner, were pretextual. Most of the conditions causing delays in work completion were out of the Petitioner’s control, including those circumstances where Yamada himself created delay.

34. Based on the foregoing, Respondent suspended Petitioner without just cause in violation of N.C. Gen. Stat. § 126-36.
35. As the prevailing party under N.C. Gen. Stat. §126, Petitioner is entitled to recoup lost wages due to his suspension, attorneys’ fees, and legal expenses.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Administrative Law Judge determines that Petitioner’s supervisor subjected Petitioner to discriminatory and retaliatory treatment; and that Respondent’s suspension was without just cause. The undersigned determines that the State Personnel Commission should REVERSE Respondent’s decision to suspend Petitioner for one week without pay, and award Petitioner any lost wages due to his suspension, and attorneys’ fees.

ORDER AND NOTICE
The North Carolina State Personnel Commission will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.
Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.
This the 11^th day of February, 2010.

_______________________________

Melissa Owens Lassiter

Administrative Law Judge

CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the foregoing DECISION by depositing a copy thereof in an envelope bearing sufficient postage in the United States mail at Greenville, North Carolina, addressed to the following person at the following address which is the last address known to me:
John P. Scherer, II

Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ATTORNEY FOR RESPONDENT

Mary-Ann Leon

NC BAR NO. 26476

2408 S. Charles Blvd., Suite #3

Greenville, NC 27858

ATTORNEY FOR PETITIONER
This the _____ of February, 2010.

______________________________

Office of Administrative Hearings

6714 Mail Service Center

Raleigh, NC 27699-6714

[phone]

Fax: [phone]