North Carolina Dept. of Correction v. Gibson

• Decision Date: 20 July 1982
• Docket Number: No. 8110SC582,8110SC582
• Citation: 58 N.C.App. 241,293 S.E.2d 664
• Parties: NORTH CAROLINA DEPARTMENT OF CORRECTION v. Earl GIBSON.
• Court: North Carolina Court of Appeals

Page 664

293 S.E.2d 664

58 N.C.App. 241

NORTH CAROLINA DEPARTMENT OF CORRECTION v. Earl GIBSON.

No. 8110SC582.

Court of Appeals of North Carolina.

July 20, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Richard L. Kucharski, Raleigh, for petitioner.

Lumbee River Legal Services, Inc. by Phillip Wright and Julian T. Pierce, Pembroke, for respondent-appellant.

BECTON, Judge.

FACTS

Gibson was dismissed from employment at Sandhills Youth Center (SYC) following

an investigation into the escape of two inmates during April 1979 from the segregation area at SYC. The evidence, as it relates to Mr. Gibson, SYC, the escape, and the disciplinary action taken, follows.

Earl Gibson

Gibson, a black male, had been employed as a CPA-I at SYC for fourteen months prior to his dismissal. Superintendent F. D. Hubbard had initially recommended Gibson for employment and described him as an excellent candidate. Prior to his dismissal Gibson had made steady progress in his performance with the Department of Corrections (DOC). He had, in fact, been evaluated on 3 June 1978 and 18 April 1979 and was found to be a satisfactory employee both times.

On 23 April 1979 Gibson was assigned to work the segregation area of SYC. He began work at approximately 11:00 p. m. and worked until approximately 7:00 a. m. on 24 April. His responsibilities included checking each cell once an hour in the segregation area. Prison policy required Gibson to "see flesh" of each inmate at these hourly checks. Gibson was allegedly dismissed based on his failure to assure the presence of two inmates during his shift.

SYC

Sandhills Youth Center is a minimum security prison ¹ which houses youthful offenders ages 18 to 21; it does not normally house dangerous inmates. The segregation area of SYC houses inmates who are assigned to either administrative or disciplinary segregation. Inmates are placed in "segregation" in order to house them in a secure facility and in order to remove them from the general population. Although there have been 119 escapes from SYC in the five-year period preceeding the escape from the segregation area in April 1979, no person testifying had personal knowledge of an escape similar to the one made in April 1979 from a segregation cell. ²

The Escape

Two inmates, Crumpler and Dunlap, who had been placed in segregation for "being in an unauthorized area" escaped, and this led to Gibson's termination. The escape most likely occurred during the evening of 23 April 1979; it was discovered during the morning of 24 April 1979. Crumpler and Dunlap escaped by making a hole in the ceiling of their cell, going through a heating duct, and thence into the attic and over the roof.

When Gibson reported for segregation duty at 11:00 p. m. on 23 April 1979 he saw, in the segregation cell occupied by Crumpler and Dunlap, that a bed was turned over in the corner with the mattress lying on the floor. The figure of a body was lying on the mattress. On the other side of the cell, Gibson could see part of another bed in the corner although he could not see who was lying on it because the bed was located in a blind spot. Specifically he testified:

You can't really see all of the corner through the hole in the door. You can peep far enough to see something like the mattress, but you can't really see all the way up the corner. If a man is in the corner, then you won't be able to see him. There were no changes in these circumstances throughout my shift.

Gibson further testified that Gerhard Kunert, the guard who preceeded him on duty on the 3:00 p. m. to 11:00 p. m. shift, told Gibson that the cell had been like that for a while and that nothing was wrong. Kunert himself testified that when he came on duty at three o'clock that afternoon, the cell was in the same condition as it was at 11:00 p. m. Kunert testified: "I made my first check around 3:15. The bed was turned over in the cell at that time. I inquired about the bed and was told by the inmate that he wanted to sleep on the floor because it was cooler and better for his back."

Throughout his shift, Gibson saw no change in the cell and assumed that Crumpler and Dunlap were asleep in their beds. He did not see "living, breathing flesh" as he was required.

Gibson served breakfast to the inmates in segregation at the end of his shift the following morning. When he came to the cell of Crumpler and Dunlap, he received no response from either man. He threw a milk carton toward one of the beds, but still no one responded. Gibson then assumed that Crumpler and Dunlap did not want breakfast. He went home at the end of his shift without reporting this incident to his supervisor. Gibson testified: "On previous occasions when I was serving breakfast in segregation, it had been refused quite a few times, at least four or five times."

Carl Smith, the first shift guard on duty in the segregation area who took over for Gibson on the morning of 24 April 1979, did not personally check all of the segregation cells on his 7:30 a. m. check. Rather, he had another employee, Dennis Deese, check a portion of the segregation area, including the area that housed Crumpler and Dunlap. Deese did not see Crumpler or Dunlap and said nothing to Smith about Crumpler's and Dunlap's cell. Smith personally checked all of the cells at 8:30 a. m., but received no response at the cell. After talking to another inmate across the hall from Crumpler's and Dunlap's cell, Smith "bent [his] chest slightly and looked in the hole [in the door and] that is when I saw the bed had fallen over and hit the stool. There was a big hole in the ceiling.... Mr. Deese and I went in and he pulled the covers back and it was pillows or blue jeans or some stuff like that."

Disciplinary Action

For his failure to count physical bodies once each hour as required by prison rules throughout his entire eight-hour shift and for his failure to report that he was unable to awake Crumpler and Dunlap for breakfast, Gibson, who is black, was terminated. Angus Currie, the acting supervisor on Gibson's shift, was required to conduct at least one check of the segregation area during Gibson's shift. Currie, who is white, failed to make any checks. He has not been disciplined. ³ For his failure to perform a proper check of segregation cells by assuring the physical presence of inmates at his 10:30 p. m. check on 23 April 1979, Mr. Kunert, who is white, was given an oral warning with a follow-up letter. For his failure to insure the presence of the two inmates at the 7:30 a. m. check on 24 April 1979, Mr. Deese, who is white, was given an oral warning with a follow-up letter. Carl Smith, who is white and who had Dennis Deese make Smith's 7:30 check, was not disciplined.

Angus Currie also testified about an earlier escape when he and another white guard, O'Neal, were on duty. Currie made one floor check for O'Neal, who was to count inmates hourly, then O'Neal took over. At wake-up time, approximately 6:30 the following morning, O'Neal discovered that an inmate had escaped and found a dummy in the inmate's bed. No disciplinary action was taken against Currie, who is white. O'Neal, a white guard, received a reprimand.

ANALYSIS

Finding no North Carolina case stating the evidentiary standard to be used in the case of a State employee who alleges that he was terminated from his employment because of his race, the Commission used the evidentiary standards developed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The trial court, while not challenging the use of Title VII evidentiary standards, reversed the Commission and affirmed DOC's decision to dismiss Gibson after concluding that the Commission's decision was made upon unlawful procedure, was affected by error of law, was unsupported by substantial evidence, and was arbitrary and capricious, all in violation of G.S. 150A-51.

For the reasons that follow, we believe (a) that the evidentiary standards developed under Title VII are the appropriate evidentiary standards to be used in employment discrimination cases brought pursuant to G.S. 126-36; (b) that the Commission properly applied the Title VII evidentiary standards to this case and did not shift the burden of proof from Gibson to DOC; (c) that the Commission's decision was not made upon unlawful procedure; and (d) that the Commission's decision was supported by substantial evidence and was not arbitrary or capricious or otherwise affected by error of law.

I

A. Use of Title VII Evidentiary Standards

G.S. 126-36 states in relevant part: "Any State Employee or former State Employee who has reason to believe that ... termination of employment was forced upon him ... because of his ... race ... shall have the right to appeal directly to the State Personnel Commission." North Carolina's Equal Employment Practices Act, G.S. 143-422.1, et seq., contains the following specific legislative declaration:

It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race ....

It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment forments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and development, and substantially and adversely affects the interests of employees, employers, and the public in general.

G.S. 143-422.2. The relevant part of Title VII states: "It shall be an unlawful employment practice for an employer (1) ... to discharge any individual ... because of such individual's race ...."

Given the similarity of the language of the State and federal statutes and the underlying policy of these statutes, it was eminently reasonable for the Commission to use Title VII standards in this case. The use of federal standards by our courts, whether developed pursuant to federal statu...