No. 8710SC1016 | N.C. Ct. App. | May 17, 1988
The State Personnel Commission has authority to determine whether a State employee has been discharged because of racial discrimination. Dept. of Correction v. Gibson, 308 N.C. 131" court="N.C." date_filed="1983-04-05" href="https://app.midpage.ai/document/north-carolina-department-of-correction-v-gibson-1330034?utm_source=webapp" opinion_id="1330034">308 N.C. 131, 301 S.E. 2d 78 (1983); G.S. 126-36. Once the employee establishes a prima facie case of discrimination, the burden shifts to the employer to produce evidence showing a legitimate, nondiscriminatory reason for its action. If the employer carries its burden to produce that evidence, the employee must then satisfy the trier of fact that the employer’s stated reasons were merely a pretext for intentional discrimination. Gibson, supra at 137-139, 301 S.E. 2d at 82-84. The evidentiary findings of fact here are undisputed. Indeed, in his brief petitioner concedes that the Department has articulated legitimate reasons for firing him. Therefore, the sole issue on appeal is whether the Commission erred in concluding that petitioner failed to show the Department’s stated reasons were a pretext for racial discrimination. After careful consideration of the whole record, we find no error.
The reviewing court must affirm an agency’s ruling if, after consideration of the “whole record,” there is substantial, competent evidence to support it. Savings & Loan Assoc. v. Savings & Loan Comm., 43 N.C. App. 493" court="N.C. Ct. App." date_filed="1979-11-06" href="https://app.midpage.ai/document/community-savings--loan-assn-v-north-carolina-savings--loan-commission-1381320?utm_source=webapp" opinion_id="1381320">43 N.C. App. 493, 259 S.E. 2d 373 (1979). Here, the record clearly supports the Commission’s ultimate finding of fact that petitioner was not a victim of racial discrimination. In considering whether the employer’s stated nondiscriminatory reasons were merely a pretext for discrimination, courts may consider the evidence the employee used to establish his prima facie case as well as:
(1) evidence that white employees involved in acts of comparable seriousness were retained;
(2) evidence of the employer’s treatment of the employee during his term of employment;
*232 (3) evidence of the employer’s response to any legitimate civil rights activities of the employee; and
(4) evidence of the employer’s general policy and practice regarding minority employees.
Gibson, supra, at 139-140, 301 S.E. 2d at 84. To show the record supports his claim of discrimination, petitioner cites the Commission’s findings that white employees also purchased canteen items for inmates, and were apparently not discharged; that some of the inmates told him that the white employees were planning to arrange his dismissal because he was black; and that he was the first black ever hired in a supervisory position at the soap plant.
In addition to purchasing canteen items for inmates, however, the Commission found that petitioner committed at least six other acts of misconduct, many involving breaches of prison security. There is no evidence that white employees with similar records were retained. The number and severity of petitioner’s violations of both the Department’s policies and his supervisor’s instructions are sufficient to distinguish his conduct from that of white employees who allegedly had violated the Departmental policy against selling canteen items to inmates. See Gibson, supra (conduct of white employee who failed to make 3 or 4 security checks but did discover an inmate escape considered less serious than conduct of black employee who failed to make 8 security checks, did not discover the escape, and failed to report suspicious situation).
The Commission’s finding that petitioner was told by inmates that white employees were plotting against him is similarly unpersuasive. Even assuming arguendo the competency of that evidence, in the absence of evidence tending to show that employees’ plotting had any effect on the decision to fire petitioner, it has no probative value here. To succeed in this claim, petitioner must show racial discrimination on the part of those Departmental officials who made the decision to discharge him. See Ambush v. Montgomery Cty. Government, Etc., 22 Fair Empl.Prac.Cas. 1101 v. Montgomery County Government Department of Finance Division of Revenue" class="midpage_citation" corrected_citation="620 F.2d 1048" court="4th Cir." date_filed="1980-05-01" href="https://app.midpage.ai/document/22-fair-emplpraccas-1101-v-montgomery-county-government-department-of-finance-division-of-revenue-377915?utm_source=webapp" opinion_id="377915">620 F. 2d 1048, 1054 (4th Cir. 1980) (evidence that the employee had a heated discussion with a white employee is not sufficient to show racial bias, particularly when the white employee was not the person who took the allegedly discriminatory action). The decision to terminate petitioner’s employment was made by two people. Both of them testified that
From the whole record, there is substantial, competent evidence that the Department’s stated nondiscriminatory reasons for firing petitioner were not merely a pretext for racial discrimination. Accordingly, the Department’s decision must be affirmed.
Affirmed.