North Carolina Department of Public Safety v. Ledford (Lawyers Weekly No. 011-157-16, 55 pp.) (Linda Stephens, J.) Appealed from Madison County Superior Court (C. Philip Ginn, J.) N.C. App.
Holding: A former agency director, a Democrat who took a demotion into a non-policy-making exempt position, showed that his subsequent termination during a Republican administration was a result of political affiliation discrimination.
We affirm the superior court’s decision upholding an administrative law judge’s ruling in respondent’s favor.
During the Beverly Perdue administration, respondent served as Director of the Alcohol Law Enforcement Division (ALE). At the end of the Perdue administration, he requested and received a demotion back to his former position as an ALE agent.
Respondent returned to a field agent position as a probationary employee. The position he filled was originally open in Wilmington, but the position was transferred to respondent’s hometown of Asheville, where there was an identified need for an agent. The open position was for a lower-level agent, but respondent was classified as an advanced agent. Although his salary was set at the maximum for the position, it was a 41 percent pay cut from his salary as ALE Director.
At the beginning of Pat McCrory’s administration, respondent was terminated from his position as an ALE agent. In a contested case, respondent successfully proved that his termination resulted from political affiliation discrimination.
To meet the initial burden of establishing a prima facie case for political affiliation discrimination, an employee must show that (1) the employee work[ed] for a public agency in a non-policymaking position (i.e., a position that does not require a particular political affiliation), (2) the employee had an affiliation with a certain political party, and (3) the employee’s political affiliation was the cause behind, or motivating factor for, the adverse employment action.
The record is devoid of any evidence that “loyalty to the Governor” is a required attribute of the ALE Special Agent position from which respondent was terminated, or that respondent had any policy-making authority while serving in that role. We conclude that respondent worked for a public agency in a non-policymaking position at the time of his termination.
At the Office of Administrative Hearings (OAH) hearing, Chief Operating Officer of the Department of Public Safety (DPS) Mikael Gross testified over DPS’s hearsay objection that a state senator and the incoming-DPS Secretary had objected to respondent’s reassignment. First, Administrative Law Judge Fred Morrison correctly noted that the OAH rules “provide that an ALJ can admit any evidence that has probative value and determine what weight to give it.”
Furthermore, respondent was not offering those statements to prove the truth of the matters they asserted – that is, that his reassignment was wrong and should not have occurred – but instead to show their existing mental states and motives. Therefore, Gross’s testimony should not have been barred as hearsay.
The evidence tended to show that DPS (a) never sought input from any of the decision-makers behind respondent’s reassignment in 2012 during its investigation into and decision to terminate his employment, (b) failed to follow ALE’s internal disciplinary policy and therefore “treated [respondent] differently than other ALE Special Agents” by failing to provide him with notice that he was being investigated or any opportunity to respond to the charges against him, (c) ignored “suggestions from personnel and legal professionals to let the matter rest or transfer the position with [respondent] back to Wilmington,” and (d) “focused upon holding [respondent] responsible for actions by his Democrat[ic] superiors in late 2012 and terminat[ed] him without regard [for] the very good job he was doing as a field agent in 2013.”
Gross’s challenged testimony was highly probative and, in light of the additional bases articulated in ALJ Morrison’s decision, its probative value was not substantially outweighed by the danger of unfair prejudice. Accordingly, ALJ Morrison did not err in admitting Gross’s challenged testimony or in concluding that respondent established a prima facie case for political affiliation discrimination.
As legitimate, nondiscriminatory reasons for petitioner’s termination, respondent relied on the following: DPS contends that respondent improperly exploited his power as a policymaking exempt political appointee to circumvent the State Personnel Act’s requirements and reassign himself; that respondent’s new position was transferred without approval from Office of State Personnel back to respondent’s hometown without any legitimate business need; that the position should have been posted internally for competitive applications, and the fact that it was not violated the promotional rights of the ALE Special Agents respondent once supervised; that respondent’s salary in his new position was excessive and created an unwarranted salary inequity within ALE; and that there was no legal precedent or lawful authority to allow for respondent’s reassignment.
After carefully weighing the evidence, ALJ Morrison concluded that these purportedly legitimate nondiscriminatory reasons were not credible and, instead, were just a pretext. Given how rapidly the DPS rationales unraveled during the OAH hearing, we find ample support for ALJ Morrison’s conclusion.
The evidence tends to show that respondent was minimally involved in the decision-making process after he made his reassignment request.
With regard to respondent’s salary, while there is some evidence that Gross was mistaken in his belief that the State Human Resources Manual required respondent’s salary to be set at the maximum rate available, respondent’s salary was in the legally permissible range.
DPS contended that there was no legitimate business reason to relocate respondent’s new position from Wilmington to Asheville or to reclassify it from Contributing-level to Advanced-level. However, testimony at the OAH hearing flatly contradicts this assertion. In fact, even after respondent’s termination, an additional Special Agent remained in Asheville.
DPS also insisted that respondent’s new position should have been posted internally for competitive applications. However, the DPS director rejected the two grievances filed against respondent based in part on his determination that ALE “does not afford employees a right to file a grievance for failing to post a vacant position” and that the special agents who complained that respondent’s reassignment without posting had not raised grievable issues because they could not show that the failure to post “arguably resulted in [each grievant’s] being denied a promotion.”
Indeed, in light of respondent’s decades of experience, thousands of hours of advanced training, and demonstrated loyalty to ALE, we find it hard to imagine how an applicant could be more qualified to serve as an Advanced-level Special Agent, and despite its repeated claims that there was no legal precedent or lawful authority to allow for respondent’s reassignment, DPS has failed to identify any law or regulation that might expressly prohibit it.
When combined with the flaws in its stated rationale for terminating respondent – many of which seem to have resulted from DPS’s failure to consult anyone involved in the reassignment – these decisions not to afford respondent the same procedural rights it customarily extended to all ALE employees, and not to follow the “two viable options” recommended by its top personnel officer, strongly suggest both that DPS was looking for any reason it could find to terminate respondent and that the purportedly legitimate nondiscriminatory reasons it articulated during the OAH hearing were merely a pretext.
DPS warns in dire tones against the public policy ramifications of allowing ALJ Morrison’s decision to stand. Specifically, DPS cautions this court that our decision in this case might allow future administrations of both parties to frustrate our state’s democratic ideals by entrenching partisan appointees before relinquishing power.
We find it difficult to discern how this rationale applies in the case of a veteran law enforcement officer who has dedicated his entire career to serving and protecting the people of this state, wishes to continue doing so in a role that has no clear impact on effectuating either party’s policy priorities, and, unlike more common stereotypical well-heeled political appointees, has no proverbial golden parachute to guarantee a comfortable landing in the private sector. If our General Assembly is truly concerned with protecting North Carolinians against such harms as DPS forewarns, it can take appropriate legislative action, but this court declines DPS’s invitation to turn respondent into a scapegoat for all that ails our body politic.