Gray v. Orange County Health Department

457 S.E.2d 892, 119 N.C. App. 62, 1995 N.C. App. LEXIS 401
CourtCourt of Appeals of North Carolina
DecidedJune 6, 1995
Docket9310SC27
StatusPublished
Cited by11 cases

This text of 457 S.E.2d 892 (Gray v. Orange County Health Department) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gray v. Orange County Health Department, 457 S.E.2d 892, 119 N.C. App. 62, 1995 N.C. App. LEXIS 401 (N.C. Ct. App. 1995).

Opinions

JOHN, Judge.

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 [64]*64(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
A. Complaint of Lynn Rollins
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.
[65]*653. At this June 2[8], 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.
[66]*6615. 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.
B. Complaint of Hillary Ensminger
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.
[67]*6726. 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.

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Bluebook (online)
457 S.E.2d 892, 119 N.C. App. 62, 1995 N.C. App. LEXIS 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-orange-county-health-department-ncctapp-1995.