Coates v. North Carolina Department of Crime Control & Public Safety (Lawyers Weekly No. 11-09-0549, 20 pp.) (Donald Overby, ALJ) OAH
Holding: Further investigation would have shown the respondent-employer that the petitioner-employee could not have made the telephone call in which someone impersonated a Tennessee SBI agent; moreover, an expert showed that someone “spoofed” a call from petitioner’s cell phone.
Respondent failed to show that petitioner engaged in personal misconduct. It is recommended that petitioner be reinstated with back pay and attorney’s fees.
A five-minute phone call was made to the Alcohol Law Enforcement Office in Hickory on Oct. 16, 2009 at 10:18 a.m. The caller identified himself as Earl Lunsford of the Tennessee State Bureau of Investigation.
The caller said a white female approximately 50 years old with the last name Ramsey would transport moonshine to Hickory on Oct. 18, 2009. The caller gave ALE Agent Matthew Stemple a license plate number that belonged to a state emergency management vehicle, a description of the vehicle, and the approximate time the moonshine would be transported.
Tiawana Ramsey, who works for respondent, was stopped at the time and in the vehicle described by the caller. However, she was not transporting moonshine.
ALE Agent Stemple began investigating the caller. There is no Tennessee SBI agent named Earl Lunsford.
Agent Stemple called the number used by the caller, and petitioner answered. Although petitioner admitted the phone was his personal cell phone, he denied making the call at issue.
Respondent obtained cell phone records, which showed that the call connected to a tower near the Archdale Building in Raleigh at which petitioner – who is from Hickory – was attending a meeting. However more complete records showed more than one tower in use; therefore, the caller was moving during the call, yet petitioner never left the building. Moreover, petitioner was not billed for the call, as he would have been had he made a five-minute call while he was in Raleigh.
“Spoofing” is when a telephone caller places a call that appears on the recipient’s caller ID to be from a telephone number of the caller’s choosing, rather than from the caller’s actual telephone number. Petitioner’s expert demonstrated spoofing and presented evidence that the call to the Hickory ALE Office was a spoofing incident.
Petitioner is friends with Mrs. Ramsey, and Mrs. Ramsey’s husband is petitioner’s best friend. The Ramseys had suggested that petitioner apply for Mrs. Ramsey’s job when she retired 18 months later.
Based on the evidence, it is completely counter-intuitive that petitioner, an excellent employee with an unblemished record, would try to get his friend/best friend’s wife into criminal trouble so that he could potentially apply for the wife’s job, which he could do by merely waiting a year and a half.
Petitioner did not place the call at issue. The call at issue was made by an unknown individual who was spoofing petitioner’s telephone number.
Petitioner should be reinstated with back pay and attorney’s fees.