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Souther v. New River Area Mental Health Development Disabilities and Substance Abuse Program2/6/2001
he was never informed by anyone at New River that her complaints had been investigated, and was instead only informed that her allegations were deemed unfounded and she was not believed.
In the hearing before the Administrative Law Judge, when asked whether she felt that her complaint had been properly investigated, Souther responded, "to this day, if they've investigated it, I don't know it." No one ever conveyed to Souther that Lester Jenkins, in the 13 September 1993 meeting with Johnson, had offered to apologize to Souther. Souther testified that if she had been informed of the investigation and of Lester Jenkins' offer to apologize, she would have returned to work as requested. There was also testimony that Johnson suggested to Souther the option of working with another family instead of the Jenkins. However, when Souther requested that this option be pursued, Johnson informed her that no other families were available.
At the 20 September 1993 meeting, Souther was given the ultimatum of either returning to the Jenkins' home to provide in-house care for Robinette or losing her job. See N.C. Gen. Stat. § 143-422.2 (1996) and Section 703(a)(1) of Title VII (as amended, 42 U.S.C.A. § 2000e-2(a)(1) (1994)). See 29 C.F.R. § 1604.11(a) (1999) ("Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, . . . or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.") Souther testified that she did not feel safe in the Jenkins' home. Under these circumstances, unaware that her complaints had been investigated and given no alternative to returning to what she considered to be an unacceptable working environment, Souther's refusal to comply with New River's directive to return to the Jenkins' home was reasonable.
As noted above, petitioner has the burden of proving that her termination was not for "just cause." Based on all of the testimony and following a de novo review of the proceedings, we believe that Souther's refusal to attend the 15 September 1993 meeting and to return to work in the Jenkins' home was reasonable and did not constitute insubordination. As Souther's conduct did not amount to insubordination, New River lacked just cause to fire her. The order entered by the trial court, reversing the decision of the Commission, is therefore,
Affirmed.
Judge MARTIN concurs.
Judge EDMUNDS dissents in a separate opinion written prior to 31 December 2000.
EDMUNDS, Judge, dissenting.
Because I believe petitioner failed to meet her burden of proving that respondent's decision was improper, see Peace v. Employment Sec. Comm'n, 349 N.C. 315, 328, 507 S.E.2d 272, 281 (1998), I respectfully dissent.
The majority correctly points out that petitioner's dismissal was based upon her insubordination in failing to attend the 15 September 1993 meeting with her supervisors and in refusing to re-establish services to her client. Accordingly, in conducting a de novo review of this case, see Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 678, 443 S.E.2d 114, 118 (1994), this Court must review the entire record, see id., to determine whether petitioner has proven either (1) that the instructions given by her supervisors were improper or unreasonable or (2) that her refusal to comply with the instructions was neither willful nor intentional, see Mendenhall v. N.C. Dept. of Human
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