ADMINISTRATIVE HEARINGS COUNTY OF MADISON 13 OSP ) ) ) ) ) ) ) ) )

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1 STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF MADISON 13 OSP CHAUNCEY JOHN LEDFORD PETITIONER VS. NC DEPARTMENT OF PUBLIC SAFETY RESPONDENT FINAL DECISION This contested case was heard before Fred Gilbert Morrison Jr., Senior Administrative Law Judge, in Raleigh, North Carolina, on December 2, 3, & 4, On December 27, 2013, the parties filed proposed findings of fact and conclusions of law. APPEARANCES For Petitioner: For Respondent: Larry B. Leake Jamie A. Stokes LEAKE & STOKES Attorneys at Law 1 West Pack Square, Suite 501 Asheville, NC Joseph Finarelli Special Deputy Attorney General Jodi Harrison Assistant Attorney General NC Department of Justice P. O. Box 629 Raleigh, NC ISSUE Whether the termination of Petitioner s employment as an ALE Special Agent was a result of discrimination based upon his political affiliation?

2 STATUTES AND RULES IN ISSUE N.C. Gen. Stat , 34.1 & 36 FINDINGS OF FACT Petitioner Chauncey John Ledford was born on July 8, 1965, in Buncombe County, North Carolina. He graduated from Madison County High School in Petitioner registered as a Democrat at age 18. His father, also a Democrat, served as a member of the Madison County Board of Commissioners for twenty years. Following high school, Petitioner worked in his family s business for several years before serving three years (April 1990-September 1993 as a Buncombe County Deputy Sheriff. Petitioner served 5 years (September 1993-November 1998 as an ALE Special Agent with then CCPS which is now DPS before being elected Sheriff of Madison County. He served as sheriff from December 1998 to October 2009 when he was appointed Director of ALE (policy-making exempt by Governor Beverly Perdue (Democrat upon the recommendation of her appointed Secretary of Crime Control & Public Safety, Reuben Young. During seven ( of his eleven years as sheriff, Petitioner also was a Special Agent Reserve with ALE. In addition to his years of service as a deputy sheriff, ALE Special Agent, Sheriff, ALE Reserve Agent, & ALE Director, Petitioner completed hundreds of hours of law enforcement training, including at the FBI Academy, the Drug Enforcement School & Academy, SWAT (SOG & BLET. He was well-qualified to be an ALE Agent Advanced. In late 2012 Petitioner decided that he would like to return to the field as an ALE Special Agent. He discussed this desire with DPS Secretary Reuben Young and made a written request to him on November 27, Secretary Young, pursuant to his statutory authority in G. S. 18B-500, 143B-10, 126-5(e & (f, approved the request by memo dated December 19, 2012, after clearing it with his CEO/Chief Deputy Secretary, his Human Resources Director, Governor Perdue, and her chief of staff. The interim director at the Office of State Personnel had also been contacted and approved the personnel action. There was a position vacancy in Wilmington, an agent retiring in Asheville, a greater need for an agent in Asheville, so the Petitioner was demoted from SG 83 to SG 72 and reassigned to the Asheville District effective January 1, 2013, with a 41% reduction in pay (from $110,000 to $65,887 annually, which was within limits allowed by policy. Although there was a continual posting for ALE agent, there was no need for a posting for this transaction as it was a demotion/transfer/reassignment by Secretary Young and the agency was not openly recruiting in this instance. Upon his return to the field, Petitioner performed very well, leading in arrests and being recognized once as agent of the month. He was no longer in a policy-making exempt position, rather he had become a probationary employee in a non-exempt job who had to serve two years before being recognized as a career state employee under the State Personnel Act. His supervisor had no concerns nor had he received any complaints about how Petitioner performed his duties. 2

3 Pat McCrory (Republican was elected as governor in the November 2012 election. When his transition team met with DPS officials they asked whether any exempt employees were being placed in non-exempt positions and were told about the plans for Petitioner. When he was told of a negative comment from a Republican state senator about Petitioner being reassigned, new DPS Secretary Kieran Shanahan (Republican remarked: That should not have happened. Incoming officials were disappointed Petitioner was no longer in a policy-making exempt position subject to dismissal without rights for another position. On or about February 6 and February 16, 2013, two disgruntled ALE agents who had been disciplined (one by Petitioner filed internal grievances complaining about salary inequities and the manner in which Petitioner had been demoted and assigned to Asheville at a salary higher than other agents. The first grievant had outside help in preparing his grievance and shared it with the second grievant who filed the same. On March 4 and March 12, 2013, DPS Secretary Shanahan advised the two agents that their appeals did not contain any issue(s that are grievable pursuant to State Law or Agency Policy. The grievants did not seek a contested case hearing regarding Petitioner s demotion/transfer as provided by G. S and there was no evidence that any other agent had. DPS Commissioner of Law Enforcement Frank Perry by memo dated April 10, 2013, advised Petitioner that he was being terminated from state service because his participation in the events leading to the demotion could not be viewed as anything other than unacceptable personal conduct. Commissioner Perry did not prepare the dismissal memo, did not know who did, nor did he know why two different versions were prepared. He cited the two grievances which had been dismissed by Secretary Shanahan as the reason for his looking into the matter further. He had read about Petitioner s demotion in the News & Observer s political section (Under the Dome. He knew nothing about Petitioner s qualifications, never sought information from him, Secretary Young, his deputies, or his HR personnel. He signed an official criminal justice training and standards form attesting that Petitioner had not been under investigation for any alleged misconduct. Perry also ignored suggestions from employee relations and state personnel representatives to maintain the status quo or move the position and Petitioner to Wilmington. He was advised that Petitioner could appeal disciplinary action based upon political affiliation, but did not so notify Petitioner in his termination memo. Petitioner was not given notice of the charges against him; never afforded an opportunity to tell his side of the story as to whether he had in fact violated any statutes, rules or regulations; and his former superiors were not involved in Perry s investigation. His prior colleagues in DPS/ALE testified that they had never heard of an employee not being offered these opportunities which were required by ALE s internal disciplinary policy. When Secretary Shanahan received an on April 17, 2013, with attached news story about Petitioner s dismissal, he forwarded it at 9:47pm to Governor McCrory s chief of staff to let him and G know that Petitioner had been fired, thus suggesting it was a political concern. In Perry s April memo, he related concerning a new Department head and Petitioner: inevitable that you would be separated from state service----. Petitioner was a marked man politically following the 2012 election for governor. 3

4 Petitioner s evidence showed that over the years, including until he was terminated, he had served the ALE Division with commitment, dedication and loyalty. His last performance evaluation rated him as Outstanding, the highest possible for employees. He has not been the subject of sanction by any law enforcement licensing board. On May 8, 2013, Petitioner filed a Petition For A Contested Case Hearing claiming therein that he had been wrongfully terminated because of his political affiliation. The Respondent failed to produce discovery in a timely manner. Some was produced on the evening of the last business day before hearing and during the hearing. This was prejudicial to Petitioner as it required his counsel to spend excessive amounts of time seeking production of the discovery and affected Petitioner s ability to conduct followup discovery and adequately prepare the case. Petitioner has incurred $59, in attorneys fees/costs to date, having contracted to pay Mr. Leake $ per hour and Ms. Stokes $ per hour, in accordance with the Affidavit filed by Petitioner s attorney on December 27, The hours claimed by Mr. Leake (52 and Ms. Stokes (146.2 are reasonable. Reasonable rates for them per hour would be: $ for Mr. Leake and $ for Ms. Stokes; $ per hour to Mr. Leake for travel time. Other fees/costs set forth in the affidavit are found to be reasonable. Based on the foregoing Findings of Fact, the undersigned makes the following: CONCLUSIONS OF LAW The North Carolina General Assembly has provided in G. S (a, and that State employees or former State employees who have reason to believe that they have been terminated because of their political affiliation have a right to a contested case hearing in the Office of Administrative Hearings, after which pursuant to 150B-34(a an administrative law judge shall make a final decision or order that contains findings of fact and conclusions of law. To the extent that certain portions of the foregoing Findings of Fact constitute mixed issues of law and fact, such Findings of Fact shall be deemed incorporated herein by reference as Conclusions of Law. A Court need not make findings as to every fact that arises from the evidence and need only find those facts which are material to the settlement of the dispute. Flanders v. Gabriel, 110 N.C.App.438,440, aff d, 335 N.C.234(

5 North Carolina courts look to federal employment discrimination law for guidance in establishing evidentiary standards for contested cases filed under the State Personnel Act. North Carolina v. Gibson, 308 N.C. 130, 301 S.E.2d 78 (1983. In order to prove a discrimination claim, Petitioner must first establish a prima facie case of discrimination. See N.C. Department of Correction v. Hodge, 99 N.C. App. 602, 611, 394 S.E.2d 285 (1990 and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000. Petitioner has met his prima facie burden by establishing that he was a very prominent Democrat non-policymaking employee of Respondent brought in during a Democrat administration who was hoping to continue his State employment under an incoming Republican administration. He has established that Respondent treated him differently than other ALE Special Agents in failing to follow its own ALE internal disciplinary policy by not providing him notice of his being investigated; not allowing him an opportunity to respond to the charges against him by two disgruntled employees whom had been disciplined; not involving his immediate supervisors in an investigation and decision to terminate his employment. He has also raised inferences by showing Respondent focused upon holding him responsible for actions by his Democrat superiors in late 2012 and terminating him without regard to the very good job he was doing as a field agent in 2013; failing to provide a probationary employee with any counseling or suggestions concerning how he could improve his job performance; ignoring suggestions from personnel and legal professionals to let the matter rest or transfer the position with Petitioner back to Wilmington. The Republican transition team had inquired about DPS plans to move any exempt employees into non-exempt positions prior to the administration change and were told of plans concerning Petitioner. When informed about a Republican State Senator s negative remarks concerning the personnel transaction, Republican Secretary appointee Shanahan remarked That should not have happened, indicating his state of mind coincided with the senator s and transition team s concerning Petitioner. Finally, Secretary Shanahan thought it important to send an at 9:47pm notifying the governor and his chief of staff that Petitioner had been terminated, which suggests a political purpose was behind it. Petitioner was a marked man politically. To rebut this inference, the burden then shifts to Respondent to present evidence that it terminated Petitioner s employment for a legitimate, non-discriminatory reason. This burden is one of production, not persuasion. Reeves, 530 U.S. at 142. The Respondent has met this burden of production by establishing that two disgruntled, formerly disciplined agents filed grievances complaining about how Petitioner became a field agent and his salary, which led to an investigation resulting in his termination without following the ALE s internal disciplinary procedures. The burden then shifts back to the Petitioner to prove that Respondent s reason for terminating Petitioner as it did was merely a pretext, and not a legitimate, nondiscriminatory reason. Although the intermediate burdens shift back and forth under this framework, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated 5

6 against the plaintiff remains at all times with the plaintiff. Id. at 143. In attempting to satisfy this burden, Petitioner must prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. Petitioner met his ultimate burden in establishing to the undersigned that his termination was the result of political discrimination. His prima facie evidence set forth in my findings of fact was relied upon to reach this conclusion. Also, it did not seem credible that Respondent s action was not politically motivated. Petitioner had been performing very well as a field agent. His background, training, and experience qualified him very well for the advanced level position and approved salary. It is more likely than not that had he not been such a prominent, life-long Democrat from Madison County he would not have been terminated, for the State needs such well-qualified ALE Special Agents. Terminating Petitioner in disregard of ALE s internal disciplinary policy and past practices with other agents indicates that it is more likely than not that political affiliation was a factor. Respondent s primary concern appeared to be to reverse the decision by Secretary Young to demote/transfer Petitioner, with no regard to how he was performing his duties as a field agent and without exploring fairly all alternatives to termination. Secretary Young had exercised due diligence prior to deciding to demote/transfer/reassign Petitioner who was at the time a policymaking employee whose consent was unnecessary. Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned renders the following: DECISION Petitioner shall be reinstated to the position from which he was terminated at the same salary/rate of pay. Petitioner is to be paid all compensation to which he would otherwise have been entitled since the date of his dismissal, including but not limited to back pay, leave, contributions into the State retirement system, and any and all benefits to which he would have been entitled. Petitioner shall be reimbursed for attorney fees to Mr. Leake in the amount of $14, plus $1, for travel time. Petitioner shall be reimbursed for attorney fees to Ms. Stokes in the amount of $32, Petitioner shall be reimbursed $1, for other expenses/costs claimed in his attorney s affidavit. Total Reimbursement: $49, NOTICE This is a Final Decision issued under the authority of N.C. Gen. Stat. 150B-34. Under the provisions of North Carolina General Statute 150B-45, any party wishing to appeal the final decision of the Administrative Law Judge must file a Petition for Judicial Review in the Superior Court of the county where the person aggrieved by the administrative decision resides, or in the case of a person residing outside the State, the county where the contested case which resulted in the final decision was filed. The 6

7 appealing party must file the petition within 30 days after being served with a written copy of the Administrative Law Judge s Final Decision. In conformity with the Office of Administrative Hearings rule, 26 N.C. Admin. Code , and the Rules of Civil Procedure, N.C. General Statute 1A-1, Article 2, this Final Decision was served on the parties the date it was placed in the mail as indicated by the date on the Certificate of Service attached to this Final Decision. N.C. Gen. Stat. 150B-46 describes the contents of the Petition and requires service of the Petition on all parties. Under N.C. Gen. Stat. 150B-47, the Office of Administrative Hearings is required to file the official record in the contested case with the Clerk of Superior Court within 30 days of receipt of the Petition for Judicial Review. Consequently, a copy of the Petition for Judicial Review must be sent to the Office of Administrative Hearings at the time the appeal is initiated in order to ensure the timely filing of the record. This the 31 st day of December, Fred Gilbert Morrison Jr. Senior Administrative Law Judge 7