STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CRAVEN 00 OSP 0936

)

BARTOLO J. SPANO, Ph.D. )

Petitioner, )

)

v. ) RECOMMENDED DECISION

)

NEUSE CENTER FOR MD/DD/SAS )

Respondent. )

THIS MATTER came on for hearing before the undersigned Administrative Law Judge, Beryl E. Wade on the cross Motions for Summary Judgment filed by both the petitioner and the respondent in this case. Both parties submitted extensive affidavits and arguments to the Court, and the Court considered all of the affidavits and arguments in making the decision in this case. Based upon all of the pleadings, affidavits submitted, and the arguments of counsel, the Court finds that there are no material issues of fact in this case and that the petitioner be entitled to Summary Judgment as a matter of law. In accordance therewith, this Recommended Decision is submitted by the Administrative Law Judge.

APPEARANCES

Petitioner David P. Voerman

Voerman Law Firm, PLLC

50 Shoreline Drive

Post Office Box 12485

New Bern, North Carolina 28561-2485

Respondent Bradley A. Coxe

Anderson, Daniel & Coxe

Post Office Box 1309

Wrightsville Beach, North Carolina 28480

PROCEDURAL BACKGROUND

1. On June 30, 2000, the Petitioner herein filed a Petition for Contested Case Hearing in the Office of Administrative Hearings alleging that he had been improperly demoted under the provisions of N.C.G.S. §126-25, without just cause. He sought reinstatement to his position, attorney’s fees, costs, and other relief in his petition.

2. Prehearing Statements were submitted by both parties, with the Petitioner filing his Prehearing Statement on August 7, 2000. The Respondents filed their Prehearing Statement on September 1, 2000.

3. On February 15, 2001, Chief Administrative Law Judge Julian Mann, III entered an Order of Reassignment assigning the undersigned to preside in any further proceedings in the case. On May 17, 2001, the Petitioner filed a Motion for Summary Judgment, Memorandum of Law in Support of the Motion for Summary Judgment, and the deposition and affidavit of the Petitioner in support of their Motion for Summary Judgment. On or about June 4, 2001, the Respondent filed a response to the Petitioner’s Motion for Summary Judgment and a Motion for Summary Judgment of their own. On June 11, 2001, the Petitioner filed a response to the Respondent’s Motion for Summary Judgment and an additional affidavit from the Petitioner.

4. The matter was originally scheduled for trial during the week of June 26-27, 2001 at the Craven County Courthouse in New Bern, North Carolina. Just before trial, the undersigned reviewed the Motions for Summary Judgment, all of the affidavits that had been submitted along with the legal arguments in respect thereto, and advised both parties that she was filing a Recommended Decision granting Summary Judgment to the Petitioner on the basis that there was no material issues of fact as to the operative facts in respect to the Summary Judgment matter and that the Petitioner was entitled to judgment as a matter of law.

ISSUES

1. Did the Respondent demote the Petitioner when they removed him from his position as Director of Psychological Services and placed him in another position as a Clinical Psychologist?

2. If Respondent’s action constituted a demotion, then did the Respondent have just cause to demote the Petitioner?

3. Did the Respondent discriminate against Petitioner based upon age or sex?

FINDINGS OF FACT

Based upon the record presented in this case, including all affidavits and submissions made to the Court, the Court makes the following recommended Findings of Fact which constitute the undisputed material facts relevant to the determination of Summary Judgment in this case:

1. The Petitioner herein, Bartolo J. Spano, Ph.D., is a Clinical Psychologist. He received a Bachelor’s degree from Maryland College in 1956 and Master’s degree in counseling from the University of Illinois in 1960. He graduated from the University of Florida and obtained his Ph.D. in psychology in 1965.

2. The Petitioner has held various positions in the past, including teaching at Pennsylvania State University, Director of the Mental Health Center in Buffalo, New York, Director of the Counseling Center at Wright State University, Director of the Mental Health Center in upstate New York, Director of Mental Health at the Mental Health Center in Bangor, Maine, Director of a Mental Health Center in Key West, Florida, and Director of psychological services at the School for the Deaf and Blind in St. Augustine, Florida.

3. In addition to holding numerous positions as Director of Mental Health Centers, Petitioner has been in private practice for many years.

4. In 1992, Petitioner became employed by the Neuse Center in New Bern, North Carolina as the Director of Psychological Services for that organization. His position was located in New Bern, North Carolina and he continued to serve in that position until the matters complained of in the petition.

5. In 1996, in addition to his duties as Director of Psychological Services, he was promoted to the Director of the Neuse/New Bern Family Service Center. This position was also located in New Bern, North Carolina.

6. As the Director of Psychological Services, Dr. Spano worked between 40 and 60 hours per week, and his duties consisted of both clinical and supervisory work. He supervised other Clinical Psychologists, held staff meetings, negotiated with universities in the area to recruit interns, attended interagency meetings involving other agencies in the community and carried an active case load by seeing patients. He provided and did evaluations of staff that worked for him including at least six (6) Clinical Psychologists and his supervisory work and evaluations were passed on to his Director, Millard Godwin, who was the Director of the New Family Service Center at that time.

7. In 1996, Dr. Spano took over Dr. Godwin’s duties in addition to his duties as Director of Psychological Services. He continued to operate in both positions from 1996 until approximately May of 2000, when he was advised he would no longer be the Director of the New Bern Family Service Center. When he was relieved of his duties as Director of the New Bern Family Services Center, he was advised that relief was necessary because the administrative duties of that position had expanded in light of the growth of the center and the center felt that he would be overwhelmed by continuing to operate in both positions.

8. Spano conceded to this request although he did not agree with it.

9. Shortly after he was advised that he was being relieved of his duties as Director of the Family Services Center, Spano was advised that he was being “transferred” to a Clinical Psychologist position in Morehead City. This position had been vacant for a period of time, and the position was a “staff psychologist” position which did not require the occupant to hold a doctorate degree, or have any supervisory role in the operation of the Center.

10. Spano was replaced in his position as Director of Family Services by Denise Brinkley. At the time he was “transferred”, he was the only Ph.D. level psychologist to be serving in a Master’s level psychologist position in either New Bern or Morehead City.

11. At the time of Spano’s “transfer” to the Morehead City location, the Master’s level psychologists located in New Bern and in Morehead City were left without a Ph.D. level psychologist to supervise them in the manner in which Spano had supervised them as Director of Psychological Services in the past.

12. When Spano was “transferred” to Morehead City, he no longer performed the supervisory functions that he had performed as the Director of Psycological Services and specifically did not perform any functions in respect to supervising the staff Master’s level psychologists who he had evaluated and supervised in the past. His duties were changed from the duties set forth hereinabove in Finding of Fact No. 6 to basically serving as a Clinical Psychologist and providing clinical services to patients at the Morehead City facility of the Respondent.

13. When Spano was transferred, he approached the Director for the Respondent, Mr. Roy Wilson to inquire as to why he was being relocated to the Morehead City office. On May 15, 2000, he was advised by Roy P. Wilson, Jr., Area Director of the confirmation of the “change in your responsibilities effective May 12, 2000 to enable you to provide direct clinical services”.

14. On June 5, 2000, he submitted a written “appeal” regarding the decision to transfer one hundred percent (100%) of his time to Morehead City to Roy P. Wilson.

15. On June 7, 2000, he was advised in writing by Wilson that he was to report on a “full-time basis” in Morehead City effective June 8, 2000.

16. The Respondent has job descriptions for various positions in their organization. As of March 8, 2000, the Respondent had a job description for the “Director of Psychological Services” which was the position occupied by Bartolo Spano. That job description required, among other things, “supervision of the program for treatment of assigned complex problematical cases; legal and technical supervision for a small number of graduate level psychologist (not to exceed six); and community representation as assigned to interagency groups and committees in the community”. According to the job description, approximately thirty percent (30%) of the normal work week was devoted to these supervisory functions. A minimum of a Doctorate degree in psychology, five (5) years experience in a behavioral health care environment, and at least two (2) years of experience at the supervisory level were required to fulfill the job description as it existed in March of 2000, approximately two (2) months before the petitioner was “transferred” to Morehead City.

17. In their pre-trial submissions to the Court, Respondent asserted that Spano engaged in several activities which “interfered” with Neuse Center’s management operation of its facility or were “insubordination”. These activities, as alleged in the pre-trial submissions, included the following alleged incidents:

(a) failing and refusing to implement two (2) management directed Board organizational changes concerning the providing of group services as opposed to individual therapy;

(b) having a “very low attendance rate” at organizational meetings he had been directed to attend;

(c) appearing for organizational meetings but leaving with objection during the meeting;

(d) refusing to inform his clinical staff of changes in organizational focuses directed by management;

(e) refusing to relay information provided to him by administrators;

(f) refusing to distribute copies of the Minutes of management meetings for staff to review;

(g) refusing to implement the changes directed by management;

(h) refusing to provide staff who wanted to support the changes with authority or his permission to implement such changes;

(i) refusing to provide staff with keys to enter the building and denying access codes to staff for agency office supplies; and,

(j) having “seriously dysfunctional supervisor/supervisee work relations” with several individuals under his supervision.

18. After the removal of his Director of the New Bern Family Service Center responsibilities, in addition, Respondent alleges in their pre-trial submissions that Spano refused to cooperate with the new Family Service Center Director by exhibiting “disruptive and insubordinate behavior at staff meetings conducted by Ms. Brinkley”. They allege that “Dr. Spano’s presence at the New Bern Family Service Center disrupted Ms. Brinkley and interfered with the treatment of its patients”.

19. Dr. Spano has never received an unsatisfactory evaluation, a written warning, nor any notice whatsoever of any of the matters alleged in the pre-hearing submission submitted by the Respondent herein concerning any unprofessional performance of his position nor concerning any incident of “insubordination” which would be cause for disciplinary action or which would give him reasonable notice and an opportunity to respond to any proposed disciplinary action.

20. Dr. Spano did not agree to his “transfer” to Respondent’s Morehead City facility and did not voluntarily accept a position as a Clinical Psychologist at that facility.

21. Dr. Spano did not agree to any reduction in his supervisory functions that he performed as Director of Psychological Services or the removal of those functions from his job description.

22. The position of Clinical Psychologist within the Neuse Center is a position which carries with it a lower classification than the state system and a lower salary. Dr. Spano’s position as Director of Psychological Services is the second highest paid position at the Neuse Center, and the highest paid position available for a Ph.D. Psychologist.

23. The Clinical Psychologist position in the Morehead City office did not require, as a condition of filling that position, a Ph.D. in psychology nor did it require five (5) years of prior experience in the clinical setting or two (2) years of supervisory experience in order for the person to fill the position.

24. Dr. Spano’s salary has not been reduced as a result of his “transfer” to the Morehead City facility.

25. Dr. Spano, however, has been forced, as a result of his “transfer” to drive approximately 80 to 90 miles extra per day and to spend an additional two (2) hours worth of commuting time to fill the position that he did not experience while he was working as the Director of Psychological Services at the Neuse Mental Health Center facility in New Bern, North Carolina.