Gray v. Orange County Health Dept.
| Decision Date | 06 June 1995 |
| Docket Number | No. 9310SC27,9310SC27 |
| Citation | 119 N.C.App. 62,457 S.E.2d 892 |
| Parties | John D. GRAY, Petitioner, v. ORANGE COUNTY HEALTH DEPARTMENT, Respondent. |
| Court | North Carolina Court of Appeals |
Crisp, Davis, Page, Currin & Nichols by M. Jackson Nichols and Elizabeth T. Dierdorf, Raleigh, for petitioner-appellee.
Coleman, Gledhill & Hargrave by Geoffrey E. Gledhill, Hillsborough, for respondent-appellant.
Respondent-appellant Orange County Health Department (the Department) appeals an order of the superior court reversing the termination from employment of petitioner-appellee John D. Gray (Gray). In its ruling, the court also ordered Gray reinstated to his former position and awarded him $5,047.33 in costs and $25,000.00 in attorney fees. Under the circumstances of this case, we believe the trial court erred.
Pertinent factual and procedural information is as follows: On 5 February 1990, Orange County Health Director Daniel B. Reimer (the Director, Reimer) suspended Gray with pay from the position of Registered Sanitarian pending investigation of several complaints. On 22 March 1990, Gray sought to contest his suspension by filing a Petition for Hearing in the Office of Administrative Hearings (OAH) pursuant to N.C.Gen.Stat. § 126-35 (1993) and Chapter 150B of our General Statutes (the Administrative Procedure Act).
Following Reimer's investigation, Gray was discharged from employment with the Department 7 May 1990 on grounds of unacceptable personal conduct. [Pertinent particulars of Gray's alleged conduct are detailed in the Final Decision quoted infra.] Gray thereafter filed a second OAH Petition 20 June 1990, claiming inter alia his dismissal was not grounded upon "just cause" and thus violated the State Personnel Act. Consolidation of the two petitions was subsequently allowed.
A four-day hearing on Gray's petitions commenced 16 April 1991, with Administrative Law Judge Peter J. Sarda (ALJ Sarda) issuing his Proposed Decision 12 September 1991. Sarda ruled the Department had failed to establish "just cause" for Gray's dismissal under G.S. § 126-35 and ordered his reinstatement. On 14 February 1992, the State Personnel Commission (SPC) issued its "Decision and Order" in the matter, expressly adopting as its own the findings of fact and conclusions of law reached by ALJ Sarda.
Pursuant to N.C.Gen.Stat. §§ 130A-41(b)(12) (1992) and 126-37 (1993), Director Reimer entered his Final Decision in this matter on 13 March 1992, pertinent portions of which read as follows:
I. FINDINGS OF FACT
1. On June 28, 1988, Mr. John Gray met with Ms. Lynn Rollins and conducted an initial inspection of the kitchen facility in which Ms. Rollins planned to conduct a catering business.
....
3. At this June 2, 1988 meeting, Mr. Gray suggested to Ms. Rollins that she go with him to the beach in a private airplane. Mr. Gray stated to Ms. Rollins that she would look great in a bathing suit. Mr. Gray also asked Ms. Rollins out to dinner. Mr. Gray seemed to be preoccupied with establishing a personal relationship with Ms. Rollins rather than dealing with her questions about establishing a catering operation.
4. Carol Layh ... heard Mr. Gray invite Ms. Rollins out to dinner.
5. In Ms. Rollins' opinion and in Ms. Layh's opinion, Mr. Gray was "coming on" to Ms. Rollins.
....
8. In May of 1989, the Health Department received a complaint from another Orange County regulated caterer that Ms. Rollins was operating her catering business from her home without a permit. This complaint was verified by Mr. Gray who instructed Ms. Rollins that she would have to stop catering in Orange County until she obtained the necessary permit.
....
10. Ms. Rollins ceased doing catering work from her home and immediately thereafter called several restaurants and located three that were willing to share the use of their facilities. Ms. Rollins then called Mr. Gray and tried to set an appointment with him to inspect the three restaurants she had lined up. Mr. Gray told her that she was moving too fast and that her proposed arrangements would not be possible.
.... 12. Mr. Gray also told Ms. Rollins at this time that two regulated restaurant businesses could not operate out of the same kitchen facility.
13. In fact no law or regulation prohibited multiple use of one kitchen facility and the Health Department did not have a policy forbidding this practice.
14. As an alternative to sharing kitchen space, Ms. Rollins informed Mr. Gray that she had a small cottage on her property that she would be willing to renovate to use as a kitchen.
15. Without visiting Ms. Rollins' cottage, Mr. Gray informed her that he was sure such a proposal would not work and that he just could not conceive that it would work out.
16. Because of the lack of cooperation Ms. Rollins was receiving from Mr. Gray, ... [she] called Mr. [Tony] Laws [Mr. Gray's supervisor].
17. Mr. Laws agreed to meet with Ms. Rollins at her home. During this visit he looked at the proposed cottage and felt that it could, with improvements, provide an acceptable facility for a catering operation.
18. It was during this visit that Ms. Rollins related her belief to Mr. Laws that Mr. Gray was not assisting her because she had previously rejected his advances.
19. ... Ms. Rollins ... was unwilling to [speak to Mr. Reimer about her situation and the conduct of Mr. Gray] ... as she did not want to cause herself any unnecessary trouble while she was a regulated party subject to the oversight of Mr. Gray.
....
21. On June 20, 1989, Mr. Laws, Mr. Jack Knight (District Sanitarian for the State), and Mr. Gray inspected the cottage facility and the kitchen facility located at Beaugart's restaurant as possible kitchen facilities for Ms. Rollins to use for her catering business. Both facilities were found acceptable by all three men, and a permit was issued to Ms. Rollins....
22. At some later point, Ms. Rollins decided to operate her catering business in Durham [as opposed to Orange] County, North Carolina ... [because] she did not want to operate in the county in which Mr. Gray worked.
23. On June 21, 1989, Mr. Gray inspected the kitchen facility leased by Jeff and Hillary Ensminger ... and issued a permit to them for the operation there of their catering business, the Wandering Feast.
....
25. On June 27, 1989, Mr. Gray took a water sample from the kitchen facility which, upon examination by the State Health Lab, indicated the presence of fecal coliform.
26. On July 10, 1989, Mr. Gray took a second water sample which ... again indicated the presence of fecal coliform.
27. During this visit by Mr. Gray on July 10, 1989, Mrs. Ensminger told Mr. Gray that she would need to confer with her husband about the problem with the water and its effect on their business. As she prepared to call him on the telephone, Mr. Gray remarked, "Well, we can see who's in authority in this relationship," or words to that effect. Mr. Gray then said, "Well, we can see who's on top in this relationship," or words to that effect. These two statements were then followed by Mr. Gray making a sexually related remark using the word "sex" or the phrase "sexual relationship." Mr. Gray then inquired of M[r]s. Ensminger how often she and her husband engaged in sexual relations.
28. These remarks made by Mr. Gray to Mrs. Ensminger were heard by John Wilson, then an employee of the Wandering Feast.
29. Mrs. Ensminger did not react to these comments at this time as she was shocked and because she had been raised to respect and trust persons in positions of authority.
30. Mrs. Ensminger did not bring these comments to the attention of her husband as she did not want to bring any trouble to their business and because the whole episode was unseemly to her.
31. But for Mr. Gray's position of authority over her business she would not have tolerated such conduct. She was intimidated by Mr. Gray because of his position as a health inspector.
....
35. On October 10, 1989, after additional water samples showed the presence of fecal coliform, Mr. Gray ... suspended the [Ensmingers'] restaurant permit.
36. On the same day, October 10, 1989, Mr. Gray also conducted the fourth quarter inspection of the premises and recorded a score of 88, or "B" grade.
37. The points deducted for the contaminated water supply from the inspection of the kitchen ... were the difference between an "A" grade and a "B" grade.
38. Mr. Gray had the discretion to conduct this fourth quarter inspection at any time before December 31, 1989.
39. The Ensmingers did not receive an adequate explanation from Mr. Gray or from any representative of the Health Department justifying Mr. Gray's decision to inspect their facility while their restaurant permit was suspended and their business closed.
40. On December 10 19, the suspension was lifted, but no inspection was performed by Mr. Gray. This resulted in the "B" grade ... remain[ing] in effect.... As testified to by Mr. Ensminger, the receipt of anything lower than an "A" grade is very damaging to the business of a caterer and a restauranteur [sic].
41. Some time after December 10, 1989, Mr. Ensminger met with Mr. Laws and complained of several items relevant to Mr. Gray's conduct, including: 1) the fact that an inspection was conducted by Mr. Gray while their operating permit was suspended, and 2) the fact that he did not like Mr. Gray being around his wife....
....
....
47. ... [Later,] Mr. Laws contacted Ms. Rollins and asked her if she would be willing to speak with Mr. Reimer concerning Mr. Gray's conduct. She agreed to do so, as she was no longer operating as a regulated party in Orange County.
....
II. CONCLUSIONS OF LAW
....
2. The allegations made by Ms. Rollins and Mrs. Ensminger to the Health Department concerning the behavior of Mr. Gray while acting in his professional capacity as an inspector...
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