Labor & Employment – Public Employees – Unacceptable Conduct – Sanction – Campus Police

Whitehurst v. East Carolina University (Lawyers Weekly No. 011-056-18, 20 pp.) (Valerie Zachary, J.) Appealed from the Office of Administrative Hearings (Donald Overby, ALJ) N.C. App.

Holding: Petitioner, a ECU campus police officer, responded to a report of an “assault”; when he arrived on the scene, witnesses told him that Patrick Myrick had hit a girl, and Myrick said he had been in a fight but did not mention being the victim of an assault. Fairness and equity do not allow just cause for dismissal to be predicated upon petitioner’s failure to respond appropriately to facts of which he had no knowledge, i.e., that those “witnesses” had assaulted Myrick on campus after Myrick hit a girl off campus.

We affirm the administrative law judge’s decision to have petitioner demoted rather than dismissed.

Petitioner’s failure to file a non-criminal report constitutes unacceptable personal conduct in that he acted in violation of a written work rule. However, as no one had ever been disciplined for failure to submit this report, we agree with the ALJ that this violation did not provide just cause for petitioner’s dismissal.

It is true that petitioner failed to gain control of the scene prior to the arrival of other officers, and he allowed people to leave without attempting to detain them. However, petitioner’s conduct must be judged with reference to the facts of which he was aware. After reviewing the whole record, including the ECU surveillance video footage, we conclude that the severity of petitioner’s conduct was substantially mitigated by his misunderstanding of the situation with which he was presented.

At the time petitioner reached the scene, no one was being assaulted. Petitioner encountered a group of individuals restraining Myrick. When petitioner approached the group, “it was reported to him that [Myrick] . . . had assaulted a girl downtown [and] punched her in the face[.]” In that petitioner was responding to “an assault,” this reasonably led him to believe that the assault had ended, and that the gathered individuals had detained the perpetrator.

No one on the scene, including Myrick, informed petitioner that there had been a separate assault on Myrick. In fact, when petitioner asked Myrick what happened, Myrick “told . . . Whitehurst that he . . . had been in a fight downtown . . . [a]nd . . . said nothing about being the victim of an assault [on campus].”

Fairness and equity do not allow just cause for dismissal to be predicated upon petitioner’s failure to respond appropriately to facts of which he had no knowledge.

The only ECU officer on the scene privy to information regarding the assault on Myrick was Officer Tarkington. Officer Tarkington failed to convey that information to petitioner, for which she was issued a written warning. The relatively light discipline imposed on Officer Tarkington for a similar violation weighs heavily against a determination that just cause existed for petitioner to be cashiered.

Petitioner had worked for ECU for 12 years, with no disciplinary action. This factor also mitigates against a finding that just cause existed to dismiss petitioner based on his conduct on the night in question.

Finally, contrary to ECU’s argument, G.S. § 126-34.02(a) gave the ALJ the authority to impose a less serious sanction for petitioner’s actions.

Affirmed.