STATE OF NORTH CAROLINA		                     IN THE OFFICE OF
						          ADMINISTRATIVE HEARINGS
DAVIDSON COUNTY 	                                                     08 OSP 0306
_____________________________________________________________________
SHANNON M. BLACK			)
                                                                        )
	Petitioner,				)
						)
	v.					)
			                        	)	               DECISION             
NORTH CAROLINA A & T UNIV.         	)

                      			                        )
	Respondent.			            )
_____________________________________________________________________

	The above-captioned case was heard before Administrative Law Judge Shannon L. Joseph on  December 4, 2008, and January 9, 2009, in High Point, North Carolina.  After the presentation of Petitioner’s evidence, Judge Joseph granted Respondent’s Motion to Dismiss or Motion for Directed Verdict on Petitioner’s claim of discrimination when she did not receive a promotion to Sergeant.  Judge Joseph denied Respondent’s Motion to Dismiss or Motion for Directed Verdict  regarding Petitioner’s retaliation claim.  

	At the conclusion of the hearing, Judge Joseph decided that the Respondent did not retaliate against Petitioner for engaging in protected activity under North Carolina law when terminating her for job abandonment.  Respondent was directed to submit a proposed decision within thirty (30) days of receipt of the transcript. Respondent filed it on March 13, 2009. Judge Joseph having resigned her position, the case was reassigned to the undersigned to file the decision.

APPEARANCES
	For Petitioner:	Sharon M. Lawson-Davis
				Gray Johnson Blackmon Lee & Lawson, LLP
				108 N. Elm Street
				Greensboro, NC 27401 
								
	For Respondent:   John P. Scherer II
				 Assistant Attorney General
				 N.C. Department of Justice
				 P. O. Box 629
				 Raleigh, North Carolina  27602

EXHIBITS
	Admitted for Petitioner
		Exhibits 1-19, 21-27. 

	Admitted for Respondent
		1-3. Not offered for admission
		4.  Family Medical Leave Application, dated 11 September 2007
		5.  11 September 2007 Family Medical Leave Application
		6.  FMLA Health Care Certification, dated 20 September 2007
		7.  FMLA Health Care Certification, dated 26 September 2007 
		8.  Physician Certification from Pete Roberts, dated 25 September 2007
		9.  9 November 2007 Letter from Esther Cheeks to Shannon Black Re: FMLA
		10.  Physician’s Statement from Pete Roberts, dated 9 November 2007
		11.  Physician’s Statement from Pete Roberts, dated 12 December 2007
		12.  9 January 2008 Termination Letter to Shannon Black		
WITNESSES
Called by Petitioner
	Petitioner Shannon Black

Called by Respondent
	Richetta Slade
		Linda McAbee
		Esther Cheeks
					
STATEMENT OF THE CASE
	The issues for consideration at this hearing were:
	1.	Whether N.C. A&T retaliated against Petitioner for filing complaints with the Office of Administrative Hearings (OAH) and the Equal Employment Opportunity Commission (EEOC), when the University terminated her for job abandonment?
	2.	Whether N.C. A&T discriminated against Petitioner based on her race or sex when it did not select her for a Sergeant’s position?
FINDINGS OF FACT
1.	At the time of her separation, Petitioner was a permanent State employee subject to Chapter 126 of the General Statutes of North Carolina (the State Personnel Act) and is a citizen and resident of Davidson County, North Carolina.
2.	Respondent North Carolina A&T State University (hereinafter “Respondent,” “N.C. A&T,” or “the University”) is subject to Chapter 126 and was the Petitioner’s employer.
3.	The University hired Petitioner as a police officer on or about October 31, 2004.  In early May of 2007, Petitioner applied for a Public Safety Supervisor (Sergeant) position with the University Police Department.  The position required a minimum of three years of law enforcement experience.  Petitioner admitted that she knew she did not possess the minimum years of law enforcement experience, but claimed that another officer, Jason White, had previously received an interview for a sergeant’s position without the requisite three years of law enforcement experience.  Thus, Petitioner believed that she could at least apply and receive an interview.  Petitioner did learn that White was not selected for the earlier sergeant’s position.  Further, White did not apply for the Sergeant’s position in early May of 2007.   
4.	Petitioner did not receive an interview for the position and later learned from N.C. A&T Human Resources that her application was not forwarded for interviews, because she did not meet the minimum qualifications.  Petitioner presented no evidence of who was interviewed for the Sergeant’s position, except she believed that the Police Department interviewed at least one woman.  In addition, Petitioner did not know who, if anyone, was selected for the Sergeant’s position.
5.	After learning that she did not receive an interview, Petitioner filed a petition for a contested case hearing alleging discrimination regarding the selection for the Sergeant’s position.  During this time period, Petitioner experienced anxiety and panic attacks which impacted her ability to perform her job.  She applied for leave under the Family Medical Leave Act (FMLA).  Esther Cheeks, the benefits counselor in the University Office of Human Resources, was responsible for managing the benefits programs, including FMLA.  Cheeks explained the FMLA program to Petitioner and served as her point of contact for questions about the program and for the submission of documentation in support of leave under the FMLA.  After Petitioner submitted documentation from her treating physician, the University approved her for FMLA leave from August 20, 2007, through November 11, 2007. 
6.	While Petitioner was on FMLA leave, her petition was dismissed without prejudice and returned to N.C. A&T for the parties to exhaust the administrative process.  Richetta Slade, the Deputy Chief of Police, became aware of Petitioner’s illness and absence.  Slade knew the Petitioner, since she had interviewed her and participated in the 2004 initial hiring decision.  The University Chief of Police, Richard Holden, asked Slade to conduct an inquiry into the allegations Petitioner had raised in her contested case petition.  Slade did not recall that Petitioner raised any specific allegations about her personally in the complaints.  Slade attempted to interview Petitioner as part of her inquiry, but Petitioner refused to meet alone with Slade due to personal discomfort. 
7.	In early November 2007, Cheeks notified Petitioner that her FMLA leave would end by November 2007.  After that date, Petitioner would be in a non-pay status, unless she applied for and/or received other benefits options.  Cheeks told Petitioner that she could seek shared or donated leave from other employees through the Shared Leave Program.  Petitioner needed to fill out forms to solicit this leave.  If other employees decided to donate sick or annual leave, Petitioner could use this leave.  Cheeks also informed Petitioner that she could apply for short-term disability leave, based on her medical condition.  To facilitate this option, Cheeks provided Petitioner with the forms to provide to her physician.  Once the doctor completed such forms, Petitioner, if approved, would receive short-term disability leave.  Either shared leave or short-term disability would have placed Petitioner on a leave status and protected her position.  Otherwise, once her FMLA leave ended on November 11, 2007, Petitioner was in a non-pay status with no job protection and no legal obligation to continue her in the position.  
8.	 Petitioner received Cheeks’ November 9, 2007 letter.  Petitioner never sought or received donated or shared leave. Petitioner never submitted an application for short-term disability because her physician would not recommend her for it.  Her therapist stated on November 9, 2007, that she was still suffering from acute panic attacks and depression related to her work environment and that a date for her return to work was unknown.    
9.	In mid-December 2008, Petitioner participated in mediation with the Police Department.   One of the issues she discussed with the Police Department was a date for her to return to work.  In mid-December Petitioner submitted another memorandum from Pete Roberts who again noted that Petitioner was suffering from anxiety and panic attacks, and he did not provide a date for Petitioner to return to work.  According to Slade, Chief Holden asked Petitioner during the mediation when she could return to work.  Petitioner again stated that her therapist did not know of a viable return to work date.  During her hearing testimony, Petitioner admitted that her therapist had informed her that he was unsure if she would ever be able to return to work at the Police Department.  During the November or December 2007 time frame, Slade offered Petitioner a different position as a canine officer at the same rate of pay.  Petitioner refused this offer.  Petitioner testified that she believed she could return to work if Jason White was not her supervisor, yet she admitted that neither her therapist or any doctor ever provided this recommendation to Respondent.
10.	In January 2008, Slade became the interim Chief of the University Police Department after the expiration of Holden’s contract.  Slade implemented several changes in the department, including moving and replacing supervisors.  Slade also continued to seek Petitioner’s return to work in the department.  Slade needed the work done and the position filled.  Petitioner at that time was in a non-pay status with no FMLA, sick, donated, or annual leave and she had not applied for short-term disability.  Slade discussed the situation with Linda McAbee, the Vice Chancellor for Human Resources at N.C. A&T, and Cheeks.  Cheeks told Slade that Petitioner was not in any leave status.  McAbee discussed with Slade the lack of any medical documentation indicating when Petitioner could return to work.  Since Petitioner was not on any leave status, McAbee and Slade discussed proceeding with a termination based on job abandonment or unavailability under Office of State Personnel policies.  Slade testified that any prior complaints by Petitioner had no bearing on her decision to terminate Petitioner.  McAbee then assisted Slade in drafting a letter, and on January 9, 2008, Slade issued Petitioner a termination letter for job abandonment.   

CONCLUSIONS OF LAW

1.  The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case pursuant to Chapter 126 and 150B of the North Carolina General Statutes.
2.  Petitioner first alleged disparate treatment discrimination on the basis of her sex and race (Caucasian) when the University did not interview and select her for the Sergeant’s position.  According to "disparate treatment" analysis, the employee has the initial burden of proving, by preponderance of evidence, a prima facie case of discrimination by showing: (1) she applied for and was qualified for an available position, (2) that she was rejected, and that (3) after she was rejected the employer filled the position with a non-white and/or male employee.   North Carolina Dep't of Cor. v. Hodge, 99 N.C. App. 602, 394 S.E.2d 285 (1990). Once an employee establishes a prima facie case, an inference of discrimination arises. Id.  To rebut this inference, the employer must present evidence that the employee was rejected, or other applicant was chosen, for legitimate, nondiscriminatory reasons.  Id.  The employee retains the final burden of persuasion on the issue of intentional discrimination. Id.  
3.  In this case, Petitioner failed to present evidence to establish a prima facie case of sex or race discrimination.  Most importantly, Petitioner failed to show that she was qualified for the Sergeant’s position, because she lacked the minimum three years of law enforcement experience required by the job announcement and description.  Petitioner admitted that she lacked this experience.  Additionally, Petitioner presented no evidence that a male or non-white employee received the Sergeant’s position.  Finally, Petitioner admitted that the University interviewed at least one woman for the job; and otherwise indicated that she had no idea who the University interviewed and whether N.C. A&T interviewed any Caucasians for the position.   
4.  For these reasons, Petitioner’s claim for race and sex discrimination was dismissed at the conclusion of the evidence, upon NC A&T’s motion for directed verdict or motion to dismiss.
5.  As to Petitioner’s claim of retaliation for her previous filing of an OAH petition and an EEOC charge, “[t]o establish a prima facie case of retaliation, it must be shown that (1) the plaintiff engaged in a protected activity, (2) the employer took adverse action, and (3) there existed a causal connection between the protected activity and the adverse action.”  Salter v. E & J Healthcare, 155 N.C. App. 685, 693, 575 S.E.2d 46, 51 (2003).
6.  As established, there is no question that Petitioner filed the OAH petition and that in January 2008, Respondent terminated her.  Petitioner, however, has failed to establish a prima facie case of retaliation, because she has failed to establish the third prong: a causal connection between the protected activity and the adverse action.
7.  First, Slade, the alleged retaliating official, testified that the prior complaints had no bearing on her decision.  Several facts support this assertion.  Slade offered Petitioner another job in the department before Petitioner’s termination, despite the fact that Slade had no legal requirement to do so.  Petitioner declined this job offer.  In addition, the University provided Petitioner with several options to insure that she maintain her position, i.e., access to shared leave and the application for short term disability.  Petitioner failed to apply for either of these options.  Finally, once she became interim chief in January 2008, Slade made personnel changes, including moving or changing supervisors.  Such changes ended some of the reported problems Petitioner would have had upon returning to duty.
8.  Even if Petitioner had established a prima facie case, the University has credibly articulated a legitimate, non-retaliatory reason for its action.  Petitioner has failed to demonstrate that this reason was pre-textual.  Petitioner was on FMLA leave through mid-November 2007.  After that leave expired, Petitioner had no approved leave in effect.  It is not persuasive that no one wrote Petitioner a letter explaining to her that she could not stay out of work and keep her job upon the expiration of all approved leave.  There was no evidence that Respondent approved Petitioner’s failure to return to work.
9.  Petitioner never provided any indication of when she might return to work.  She never provided any medical documentation of an ability to return to her job.  In her testimony, Petitioner stated that if Kelly White were removed as her supervisor, she could have returned to duty.  However, Petitioner never submitted any note from her therapist to the University indicating that she could return to work if White were not her supervisor.  Besides, the University offered her a different position and Petitioner chose to decline it.
10.  All documents that Petitioner submitted indicated that she would be absent for an indefinite time.  Her therapist never provided an opinion that she could return to duty.  Petitioner never submitted a document indicating that she would be able to return to work at any time.  Further, she did not apply for short term disability and did not apply for the shared leave program.  Although the University did not perfectly follow their FMLA policies, any failure to do so did not establish retaliatory intent and did not provide evidence of retaliation.  There was credible testimony that Cheeks orally apprised Petitioner of her FMLA rights and obligations.  Cheeks later provided Petitioner with sufficient information in her November 9, 2007, letter.  After receiving that letter, Petitioner took no action and if she had received the letter earlier, there is no evidence that her behavior would have changed. 
11.  Overall, Respondent was reasonable in its concern that Petitioner needed to return to work.  Petitioner held an important public safety position and had not submitted anything to indicate when she would ever return to work.  Further, Petitioner had no legal basis for her absence and no legal approval or grounds for her absence.  Any discrepancies in Slade’s testimony do not undermine these findings.  There is ample evidence in the record to support Respondent’s reasons for termination.
12.  Petitioner has failed to establish any evidence of retaliatory intent.  She has presented no evidence that McAbee or Cheeks had any discriminatory intent.  Further, she has failed to demonstrate that Slade had retaliatory intent, particularly since Slade had participated in Petitioner’s initial interview and hiring.  
13.  Petitioner has failed to establish that Respondent’s legitimate, non-retaliatory reason was pre-textual, or that retaliation was the real reason for the action.  The evidence shows that the reason for Petitioner’s dismissal was her abandonment of her job with no potential date to return.        
DECISION
That Respondent’s decision to terminate Petitioner for job abandonment be affirmed. 
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Services Center, Raleigh, N.C. 27699-6714, in accordance with N.C.G.S. § 150B-36(b).
NOTICE
The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this Decision and to present written arguments to those in the agency who will consider this Decision. N.C.G.S. § 150B-36(a).
The agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.
The agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.

This the 16th day of March, 2009.

________________________________
Fred G. Morrison Jr.
Senior Administrative Law Judge