Smith v. N.C. Dep't of Pub. Instruction

• Decision Date: 18 September 2018
• Docket Number: No. COA17-1361,COA17-1361
• Citation: 820 S.E.2d 561,261 N.C.App. 430
• Parties: Daniel SMITH, Petitioner, v. N.C. DEPARTMENT OF PUBLIC INSTRUCTION, Respondent.
• Court: North Carolina Court of Appeals

261 N.C.App. 430

820 S.E.2d 561

Daniel SMITH, Petitioner,

v.N.C. DEPARTMENT OF PUBLIC INSTRUCTION, Respondent.

No. COA17-1361

Court of Appeals of North Carolina.

Filed: September 18, 2018

Schiller & Schiller, PLLC, Raleigh, by David G. Schiller, for petitioner-appellant.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Tiffany Y. Lucas, for respondent-appellee.

DAVIS, Judge.

In this case, a State agency dismissed a career status employee following a pattern of insubordinate and inappropriate conduct on the part of the employee that occurred over a period of years. The employee challenged his discharge in the North Carolina Office of Administrative Hearings, and an administrative law judge upheld the dismissal. Because we conclude that his discharge did not violate North Carolina law, we affirm.

Factual and Procedural Background

Daniel Smith was employed by the North Carolina Department of Public Instruction ("DPI") as a section chief in the Student Certification and Credentialing Section beginning on 18 January 2011. Throughout the time period relevant to this litigation, Smith was supervised by Jo Honeycutt, the director of DPI's Career and Technical Education ("CTE") Division. One of Honeycutt's duties as Smith's supervisor was to complete annual evaluations of his performance as an employee.

For the 1 July 2013 through 30 June 2014 review period, although Honeycutt gave Smith an overall rating of "Very Good" on his evaluation, she rated his performance on the "Client Focus" standard as "Below Acceptable." Honeycutt further noted on the evaluation that Smith needed to place "additional focus" on "improved communication with stakeholders and respect for others in the agency."

During that time period, Smith sent multiple inflammatory emails to employees of DPI partner organizations. In June 2013, Smith emailed a representative of the Association for Career and Technical Education ("ACTE") to inquire when an article Smith had submitted would be published in ACTE's trade publication. After the ACTE representative informed Smith that his article might not be published until the following year and asked him whether this was acceptable, Smith responded, "NO, I'm not good at all with the information nor your tone." In the same email, Smith wrote the following: "I'm not going away! Print the truth about credentialing or I'll take it down the street .... Threat, no. Promise, yes."

In November 2013, a vice-president of the National Institute for Automotive Service Excellence circulated information in an email that Smith read regarding a meeting about automotive programs and credentialing that was to take place at an upcoming ACTE conference. Smith replied to the email as follows: "Not a single member of the NC CTE staff will be attending this conference headed by corrupt persons out to enrich themseleves [sic] at the expense of our children!"

He copied two DPI employees from his section on this email.

In July of 2014, Smith wore a tank top and shorts to a social event that took place during a professional conference. Honeycutt met with Smith after the conference to discuss DPI's expectations regarding appropriate attire for its employees both in the workplace and at work-related events. The following month, Smith expressed his opinion to Claire Miller, DPI's Assistant Human Resources Director, that DPI's dress code was discriminatory against men in that women were permitted to wear open-toed shoes while men were not. In response to Smith's concerns, DPI's existing dress code guidelines were withdrawn on 4 September 2014 while DPI leadership considered whether to issue new guidelines.

On 22 September 2014, Smith was scheduled to be a presenter during morning and afternoon sessions of a conference hosted by DPI at Wrightsville Beach. Although Smith was prepared to present at the beginning of the morning session, he left the conference after a few minutes because no conference attendees had yet come to his session. Because he failed to return to the conference that day, Smith did not give his scheduled presentation during the afternoon session even though conference attendees were, in fact, present at that session.

In October 2014, DPI staff learned from employees at the North Carolina Department of Labor ("DOL") that Smith had provided a reference to DOL staff for a former DPI employee whom he did not supervise during that individual’s employment at DPI. Upon investigating the matter, Honeycutt determined that Smith had "misled another state supervisor" through his actions and issued him a written warning for misconduct.

Smith filed a complaint against DPI with the Equal Employment Opportunity Commission ("EEOC") on 30 September 2015. In his complaint, he alleged that DPI had retaliated against him for voicing his concerns about its dress code guidelines by, among other things, falsely accusing him of not attending the September 2014 Wrightsville Beach conference, giving him a written warning for misconduct, and moving his work cubicle to a new location.¹ Thereafter, Smith openly discussed with colleagues at DPI the fact that he had filed an EEOC complaint.

Revised dress code guidelines were made available to DPI employees on 9 October 2015. Smith subsequently printed the new guidelines on colorful paper and posted them in several places throughout his division. Upon discovering that the guidelines he posted had been taken down and thrown away, Smith retrieved them from the trash can and hung them up again.

On 8 December 2015, Smith became involved in an argument with Carol Short, a female colleague at DPI, about an "Ugly Christmas Sweater" contest that was scheduled to take place at DPI's upcoming holiday party. During the exchange, which was overheard by several colleagues, Smith spoke in a loud and argumentative voice while making disparaging remarks about the contest and calling it discriminatory against men. He cited the contest as another example of how women "made all the decisions" at DPI.

Short was very upset by this exchange and reported to DPI Human Resources staff her concerns about the 8 December incident and her belief that Smith's behavior created a hostile work environment for female employees. From January to April 2016, a DPI review team (the "Review Team") comprised of Human Resources personnel and internal audit staff conducted an investigation into Short's allegations against Smith. As part of its investigation, the Review Team interviewed approximately 21 DPI employees, including Smith. During his interview with the Review Team, Smith repeatedly responded to questions about the 8 December 2015 incident by giving answers such as "I do not wish to discuss [it] with you at this time" and "I don't care to share."

On 1 February 2016, Christy Cheek, the CTE director for the Buncombe County Schools System, forwarded an email to Honeycutt that Cheek had received from an individual named Sharon Verdu. In her email, Verdu stated that she had applied for a health science consultant position with DPI in September 2015 and that Smith behaved unprofessionally toward her during the interview process. Specifically, Smith told Verdu that he and Honeycutt "did not get along well and that [Honeycutt] discriminated against him because he was male." Smith further informed Verdu that he might be filing a lawsuit for discrimination against DPI. In her email, Verdu wrote that she believed Smith was attempting to encourage her to remove her name from consideration for the position given his statement to her that "the first candidate hit it out of the ballpark in her interview" and the fact that Smith gave Verdu his personal cell phone number so that she could call and inform him if she decided to withdraw her application. Ultimately, Verdu did, in fact, withdraw her application from consideration for the health science consultant position.

On 29 March 2016, Honeycutt received an email from Trina Williams, the CTE coordinator for the Hickory Public Schools System, regarding two postings that Smith had "liked" on his LinkedIn account. The first post was by an author of "erotic and paranormal romance." The caption for the post read, "Let's Talk Sex ..." and the post contained a picture of a woman's breasts in a bra. The second post contained a picture of multiple scantily clad women.

Upon concluding its investigation into Short's allegations against Smith, the Review Team submitted a report to DPI's director of Human Resources on 11 May 2016. In its report, the Review Team found that Smith's behavior toward Short on 8 December 2015 was "intimidating to her" and that Smith "frequently engaged in a pattern of unwelcome behavior toward women, including ... humiliating treatment of women in public professional settings. This behavior is especially egregious from a person in a leadership position." The report further stated that Smith's conduct in the workplace "had a detrimental impact on CTE staff and performance and disrupted the work of the division, even negatively impacting the brand of the division with its clients." The Review Team recommended that DPI leadership take "appropriate action" with regard to Smith.

On 18 May 2016, Smith received a pre-disciplinary conference notification letter from Honeycutt. Smith, Miller, and Honeycutt were present at the conference, which was held later that same day. During the conference, Smith was given an opportunity to respond to the issues set out in the notice, which included his (1) confrontation with Short; (2) accusations that DPI was discriminatory toward men and conduct in posting the revised dress code guidelines; (3) handling of Verdu's interview for the health science consultant position; and (4) LinkedIn account activity. Smith told Honeycutt and Miller that he believed his actions in posting the dress code guidelines were "beneficial to CTE staff" and denied the allegations concerning Verdu's interview with him. He further stated that he thought it was appropriate for...