State of north carolina

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF PITT 09 OSP 1733

______________________________________________________________________

HARESH MOTIROAM ADVANI, )

Petitioner, )

)

)

v. ) DECISION

)

EAST CAROLINA UNIVERSITY, )

Division of Finance and Administration, )

(Facilities Services), )

Respondent. )

On September 25, 2009, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Farmville, North Carolina. On November 23, 2009 and November 25, 2009, the parties filed their respective proposed Decisions with the Office of Administrative Hearings. On January 11, 2010, Chief Administrative Law Judge Julian Mann, III extended the date by which the undersigned could file her Decision until February 11, 2010.

APPEARANCES
For Petitioner: Mary-Ann Leon

The Leon Law Firm, P.C.

2408 S. Charles Blvd., Suite #3

Greenville, NC 27858

For Respondent: John P. Scherer, II

Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUES

1. Whether Respondent 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?

2. Whether Respondent 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?
3. Whether Respondent had just cause to suspend Petitioner from employment for one week without pay in violation of N.C. Gen. Stat. §126-35?
4. Whether Respondent, by and through its supervisor Anthony Yamada, created a hostile working environment for Petitioner, based on Petitioner’s national origin, resulting in Petitioner losing tangible job benefits?

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. 126 -16, -17, -34.1, and -35

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)