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Johnson v. North Carolina Department of Public Safety

Court of Appeals of North Carolina

June 18, 2019

WENDY JOHNSON, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Respondent.

          Heard in the Court of Appeals 30 January 2019.

          Appeal by Petitioner from Final Decision and Amended Final Decision entered 21 May 2018 by Administrative Law Judge David F. Sutton in the Office of Administrative Hearings, No. 17 OSP 07948

          Pope McMillan, P.A., by Clark D. Tew, for petitioner-appellant.

          Attorney General Joshua H. Stein, by Assistant Attorney General Tamika L. Henderson, for respondent-appellee.

          MURPHY, JUDGE.

         This case requires us to consider whether the Administrative Law Judge ("ALJ") erred in applying the McDonnell Douglas burden-shifting framework, rather than the Price Waterhouse mixed-motive burden-shifting framework, in determining a claim of alleged discrimination on the basis of sex. We conclude the ALJ applied the incorrect burden-shifting framework. While we reverse and remand for further proceedings, we dismiss as moot Appellant's argument that the ALJ erred in concluding that NCDPS improperly denied her veteran's preference.

         BACKGROUND

         On 7 February 2017, the North Carolina Department of Public Safety ("NCDPS") internally announced that it was accepting applications for a vacant Personnel Technician III position at the Western Foothills Regional Employment Office ("WFREO"). The posting described the position as the salary administration specialist and assistant manager of WFREO. It stated that applicants must possess "[d]emonstrated knowledge and experience with using BEACON/SAP to include report generation" and "with salary administration in NC state government" and "[c]onsiderable knowledge of state personnel policies and procedures related to recruitment, employment and salary administration." At the time of the job posting, the entire staff of WFREO was female.

         Appellant, Wendy Johnson ("Johnson"), was a female employed by NCDPS as an Administrative Services Assistant V at Wilkes Correctional Center when she applied for the position at WFREO. Johnson had a high school education and 150 months of experience in State government positions. Several other NCDPS employees applied for the position, and an independent "screener" narrowed the applicant pool to seven individuals to be interviewed based on selective criteria, including the candidates' education and experience and related knowledge, skills, abilities, and competencies. The interview pool consisted of two male and five female candidates, Johnson included.

         Lou Ann Avery ("Avery"), the manager of WFREO and the hiring manager for the vacant position, interviewed the seven candidates with Larry Williamson ("Williamson"), the Superintendent at Foothills Correctional Institution. At the interview, "each candidate was asked a series of 'benchmarked' questions. Three of the nine questions were not truly 'benchmarked', but were accompanied by vague and generalized instructions for scoring responses that left substantial room for subjective interpretation by the interviewer in scoring those questions." Johnson received an overall interview score of "average." Of the candidates interviewed, only one candidate, a male, scored "above average."

         Avery decided to offer the male ("John Doe") the position and submitted her "Request for Candidate Pre-Approval" to NCDPS. The Request stated the following under "justification":

WFREO is recommending [John Doe] for the position of Personnel Tech III. Mr. [Doe] has a Bachelor's degree and 104 months experience above minimum in Human Resources, NCDPS and private sector. Mr. [Doe] brings experience in Beacon, Benefits, NeoGov, BobJ reports and supervisory. On February 22, 2017 we interviewed a total of 7 applicants. Three applicants scored Average, three scored Below Average, Mr. [Doe] was the only Above Average score. Promoting Mr. [Doe] to the WFREO will also add diversity to an all female staff. I am recommending $42, 159 salary for Mr. [Doe], a 10% increase from his current salary.

(emphasis added). Lisa Murray ("Murray") at NCDPS approved Avery's Request without making any alterations to the justification.

         After Johnson was informed that she was not selected for the position, she spoke with Natalie Crookston ("Crookston"), another applicant for the position who was not selected. Crookston stated she had spoken with Avery, who "implied in the conversation" that Doe was selected for the position because he was a male. Johnson subsequently filed a Petition for a Contested Case Hearing in the Office of Administrative Hearings ("OAH"), alleging discrimination based on sex and failure to receive priority consideration for veteran's preference. The matter was heard before an ALJ in Catawba County, who concluded, "Petitioner failed to carry her burden to demonstrate by a preponderance of the evidence that the Respondent's hiring decision was discriminatory." The ALJ also concluded "Petitioner failed to meet her burden of proof that Respondent failed to properly apply the Veterans' Preference in violation of [ N.C. G.S.] § 126-82." Johnson appeals.

         ANALYSIS

         A. Discrimination on the Basis of Sex

         Johnson argues the ALJ erred in applying the McDonnell Douglas burden-shifting framework rather than the Price Waterhouse framework. We agree.

         1. Standard of Review

          N.C. G.S. § 150B-51(b) provides the applicable standards of review in appeals of final decisions by an administrative tribunal:

(b) The court reviewing a final decision may affirm the decision or remand the case for further proceedings. It may also reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because ...

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