in the Court of Appeals 30 January 2019.
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
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.
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.
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.
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.
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."
decided to offer the male ("John Doe") the position
and submitted her "Request for Candidate
Pre-Approval" to NCDPS. The Request stated the following
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.
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.
Discrimination on the Basis of Sex
argues the ALJ erred in applying the McDonnell
Douglas burden-shifting framework rather than the
Price Waterhouse framework. We agree.
Standard of Review
G.S. § 150B-51(b) provides the applicable standards of
review in appeals of final decisions by an administrative
(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 ...