North Carolina Dept. of Correction v. Hodge

• Decision Date: 07 August 1990
• Docket Number: No. 8910SC655,8910SC655
• Citation: 394 S.E.2d 285,99 N.C.App. 602
• Court: North Carolina Court of Appeals
• Parties: NORTH CAROLINA DEPARTMENT OF CORRECTION v. Edward Earl HODGE.

Page 285

394 S.E.2d 285

99 N.C.App. 602

NORTH CAROLINA DEPARTMENT OF CORRECTION v. Edward Earl HODGE.

No. 8910SC655.

Court of Appeals of North Carolina.

Aug. 7, 1990.

Lacy H. Thornburg, Atty. Gen. by Valerie L. Bateman, Associate Atty. Gen., Raleigh, for State.

Adams, McCullough & Beard by Abraham Penn Jones, Raleigh, for respondent-appellee.

GREENE, Judge.

The State appeals the superior court's order affirming the award of the State Personnel Commission ("Commission") in favor of employee Edward Earl Hodge ("Hodge") for racial discrimination in a Central Prison correctional officer employment promotion decision.

The record shows that the North Carolina Department of Correction, Division of Prisons, employed Hodge, who is black, as a lieutenant correctional officer at Central Prison. In March, 1987, a black correctional officer transferred from his captain's position, leaving a vacancy, for which Hodge applied. At the time Hodge applied for the position, he had been a Central Prison correctional officer for eighteen years, occupying the rank of lieutenant for eleven of the years. Six other lieutenants also applied for the promotion, of whom two were black. A three-member prison employment commission, appointed by the prison warden, interviewed Hodge for the position, but recommended that the warden promote another correctional lieutenant, who is white. The three commission members included the deputy warden, personnel director and chief of prison operations, all of whom are white. The record shows that each of the three interviewers rated the candidates in five categories: interview behavior, job knowledge, policy and procedures, leadership ability, and judgment. The interview evaluation provided each candidate with fifteen individual scores of up to five points each, for a possible total of 75 points. The interviewers scored the promoted employee with a cumulative total of 71 points and Hodge with a cumulative total of 60 points. Based on the commission's recommendation derived from the interview scores, the Central Prison warden promoted the white lieutenant to the position. Hodge filed a grievance, alleging racial discrimination and requesting review of the promotion by a Commission Administrative Law Judge (ALJ).

At the ALJ hearing, Hodge offered evidence showing that he had been tested for promotion to captain, achieving a score of 96 of 100 points, the highest applicant score on the correctional captain permanent-employment eligibility list. Hodge also introduced evidence that he had more experience as acting temporary shift commander than any other applicant, and that his employment performance appraisal for the two years preceding his application included excellent ratings and high recommendations. Hodge had taught prison policy, procedure and operations to other correctional officers for approximately 10 years. Upon the former correctional captain's departure, the outgoing captain appointed Hodge temporary acting captain during the interim period preceding selection of the permanent appointee. He also offered evidence showing that of the six current Central Prison captains, only one was a member of a racial minority. At the hearing, Hodge questioned and the personnel director on the interview board testified as follows:

Q. As far as seniority goes and rank as a lieutenant, is there any preference that is given to people that have seniority and rank?

A. It is explained to the candidate before the interview that we take all of these things into consideration, but no one item will carry more weight than the other.

. . . . .

A. We [Central Prison staff] have made a good attempt to promote those people [minorities]. We often are criticized. I have personally been criticized by the majority in that the next person promoted is going to be black.

. . . . .

[ALJ] Q. But that would influence you to make sure that it was white, then, right, if they criticized you to that extent?

A. I think they were criticizing me to the fact that they say we promote minorities.

. . . . .

Q. You stated that you had been criticized by the majority--and I would assume that whites are the majority--to the fact that the next promotion would probably be a black one?

A. That is true.

. . . . .

Q. If there were to be a promotion tomorrow to captain, would the number two person automatically get it, or would there be a whole new interview?

A. For correctional captain, we would probably hold another interview.

Q. So, in essence, if you came in second, you have profited none?

A. You have to put them in priority order.

At the hearing, the prison warden who promoted the white lieutenant testified that he would have promoted a black if the promotee could not serve.

The State put on no evidence, contending that "although he [Hodge] is an eminently qualified correctional lieutenant, [he] was not as qualified for the position of correctional captain as the person who was selected for the position." The ALJ determined in favor of Hodge that the State's decision was racially discriminatory. The State appealed the ALJ's recommendations and opinion to the full Commission, pursuant to N.C.G.S. § 150B-36(a).

The Commission made the following Conclusions:

1. Mr. Edward Earl Hodge ... is a permanent State employee who has worked at Central Prison since 1969 and served as Lieutenant for more than twelve years. Because [Hodge] has alleged racial discrimination as the reason he was not promoted to Captain, the Office of Administrative Hearings has jurisdiction to hear the matter and submit a recommendation to the State Personnel Commission which shall make a final decision in the matter. North Carolina General Statutes 126-16, 126-36, 126-37 and 150B-23.

2. Whe[n] discrimination is an issue, [Hodge] bears the ultimate burden of proof and must establish a prima facie case of discrimination by providing sufficient facts in order to raise an inference of discrimination. In his effort to establish a prima facie case of discrimination, [Hodge] has shown the following: That he is a member of a protected class/group (minority); that he applied for a position which he qualified for; that the position was previously held by a Black; that the three persons who interviewed applicants and recommended a White employee for the position were White; that one member of his interviewing committee is not sure he understands affirmative action; that shortly before his interview, he was the subject of an unusual counseling session involving two committee members; that a member of the committee penalized him for allegedly making statements about Central employees involved in executions and later posed for a newspaper photo in the gas chamber; that the majority of other personnel interviewing committees at his institution included a minority member; that the person who appointed the interviewing committee and followed its recommendation was White; that all three committee members gave him 20 of 25 points[,] which gives the appearance of being prearranged; that at least two members of the committee based their decisions partly on hearsay or uncorroborated allegations from two White Males; that the decision resulted in Central Prison having five White Captains and one Black Captain with 44% of the custody staff and 50% or more of inmates being Black; that he scored much higher on the Captain's Eligibility Exam than the successful applicant; that his 1985 and 1986 job performance evaluations had been excellent, but he received negative comments from a committee member in his 1987 evaluation which followed his appeal of this matter; and that he had several more years of service as a Lieutenant and more experience as acting shift commander than the successful applicant.

Thus, [Hodge] has established a prima facie case of racial discrimination.

3. [The State], on the other hand, has given non-discriminatory reasons for its decision to promote Lieutenant Sherwood McCabe rather than [Hodge]. McCabe received the highest ranking by the interviewing committee; he met the minimum qualifications for the position; he is well respected by inmates and staff; he has a reputation for fairness, maturity, self-control, deliberation and evaluation before acting. The members of the committee, while recognizing [Hodge]'s capabilities, were concerned by allegations that his manner at times had intimidated those under his supervision. [Hodge]'s outspokenness on issues such as smoking and executions at Central Prison has also aggravated some of his fellow employees and superiors. Thus, [the State] has rebutted [Hodge]'s prima facie case of racial discrimination.

4. While [the State] has advanced what it contends to be non-discriminatory reasons for not selecting [Hodge], [Hodge] has rebutted this evidence and has shown that [the State]'s reasons were in fact a pretext for intentional discrimination. [Hodge]'s evidence has shown that in addition to having more general experience than the successful applicant, [Hodge] specifically had more first shift experience. [Hodge] had been placed in charge of the first shift in an acting supervisory capacity by the previous Captain. Additionally, [Hodge] scored the highest score of all applicants on the objective test and had previously received the rating of "Exceeds Expectations" on his WPPRs.

Absent a direct admission by [the State] that the decision not to select [Hodge] was based, even in part on the impermissible consideration of his race, evidence of discrimination must be gleaned from the existing facts and circumstances. In the present case, [Hodge]'s 18 years experience with [the State] during which he received high ratings on his performance evaluations, had been apparently incident free. Yet, this service and unusually high performance ratings were not considered; based on the evidence, it appears that the scores derived from the interviews were the sole ranking factors used in making a recommendation for the promotion....