STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF FORSYTH 01 OSP 2385
02 OSP 0110
ANGEL J. MIYARES )
Petitioner, )
) DECISION
v. ) (to the State Personnel Commission)
)
FORSYTH COUNTY DEPARTMENT OF ) RECOMMENDED DECISION
PUBLIC HEALTH and the FORSYTH ) (to the local appointing authority
COUNTY BOARD OF HEALTH ) without requirement to comment)
Respondents. )
THIS MATTER came on for hearing before the undersigned Augustus B. Elkins II, Administrative Law Judge. The matter was heard in High Point, North Carolina on April 23, 2002, May 6, 2002 and May 7, 2002, and in Greensboro, North Carolina on May 15, 2002.
APPEARANCES
For the Petitioner: A. J. Miyares, Pro Se
3665-H High Meadows Drive
Winston-Salem, NC 27106
For the Respondents: Lori S. D’Alessio
Assistant County Attorney
704 Hall of Justice
Winston-Salem, NC 27101
PRELIMINARY MATTERS
CASE NO. 01 OSP 2385
1. On December 28, 2001, Petitioner filed a “Petition for Contested Case Hearing” against “Forsyth County, Board of Health” alleging discharge without just cause and termination due to discrimination and/or retaliation for opposition to alleged discrimination. On January 2, 2002, based upon this Petition, the Office of Administrative Hearings issued a Notice of Contested Case and Assignment (01 OSP 2385) which named Respondent as “Forsyth County Board of Health.” This case was assigned to the undersigned.
2. On January 31, 2002, Respondent Forsyth County Board of Health (“Board of Health”) filed a Motion to Dismiss Contested Case and Memorandum in Support Thereof along with its Prehearing Statement and related documents. The Board of Health alleged that the Petition was not timely filed and did not state a claim against the Board of Health. On February 25, 2002, the undersigned issued an Order ruling that the Petition was timely filed, stated a claim upon which relief could be granted and properly named Forsyth County as Respondent. The Order removed the Board of Health as a Respondent.
CASE NO. 02 OSP 0110
1. On January 20, 2002, Petitioner filed a second Petition for Contested Case Hearing against “Forsyth County Department of Public Health and Forsyth County Board of Health”, alleging discharge without just cause and termination due to discrimination and/or retaliation for opposition to alleged discrimination. On January 22, 2002, based upon this Petition, the Office of Administrative Hearings issued a Notice of Contested Case and Assignment (02 OSP 0110). This case was assigned to the Honorable Sammie Chess Jr.
2. On February 21, 2002, Respondent Health Department filed a Motion to Dismiss Contested Case and Memorandum in Support Thereof along with its Prehearing Statement and related documents. The Health Department alleged that the Petition failed to state a claim upon which relief could be granted because the Health Department did not take the agency action complained of by Petitioner. After being granted an extension of time, Petitioner filed a response to this Motion on March 26, 2002.
3. On March 26, 2002, the Honorable Julian Mann, III, Chief Administrative Law Judge, entered an Order of Consolidation of Cases 01 OSP 2385 and 02 OSP 0110 and an Order of Reassignment of the consolidated cases to the Undersigned.
4. As no ruling had been made on Respondent Health Department’s Motion to Dismiss in Case No. 02 OSP 0110 at the time the aforementioned cases were consolidated, a ruling on said Motion was deferred until the hearing of the cases.
MOTIONS HEARING
1. At the commencement of the hearing on the consolidated cases, arguments on Respondent Health Department’s Motion to Dismiss filed in Case No. 02 OSP 0110 were heard. The Undersigned granted the Motion to Dismiss leaving the Board of Health as the sole respondent in that case. The Undersigned further ruled that the allegation of discharge without just cause in the Petition in Case No. 02 OSP 0110 would be stricken, leaving only the allegation against the Board of Health that Petitioner was terminated due to discrimination and/or retaliation for opposition to alleged discrimination by the Board.
2. Also at the commencement of the hearing, Respondents Health Department and Board of Health filed a Motion for Summary Judgment in both Case No. 01 OSP 2385 and 02 OSP 0110 as to Petitioner’s claims of disability discrimination. After hearing arguments on the motion, the Undersigned denied the motion based upon Petitioner’s allegation that Dr. Timothy Monroe made statements to him about his alleged hearing loss, so that Petitioner could conceivably set forth a prima facie case of disability discrimination that Respondent regarded him as disabled.
ISSUES FOR HEARING
1. As to the Health Department (01 OSP 2385), was the termination of the Petitioner’s employment by a reduction-in-force action (“RIF”):
a. proper, i.e., based upon just cause and/or;
b. proper as based on just cause but improper procedurally for failure to act according to applicable procedural requirements; and/or,
c. improper because it was a pretext for discrimination and/or retaliation for opposition to discrimination.
2. As to the Board of Health (02 OSP 0110), did the Board of Health discriminate against Petitioner in its investigation and determination of his internal grievance alleging harassment and retaliation against the Director of the Health Department?
EXHIBITS
The following exhibits offered by the Petitioner were received in evidence:
P1A Petitioner’s Prehearing Statement in Case No. 01 OSP 2385
P2 Respondent Forsyth County’s Responses to Petitioner’s First Request for Admissions
P3 Respondent Forsyth County’s Responses to Petitioner’s First Set of Interrogatories and Requests for Production of Documents to Respondent
P4A Excerpts of State Personnel Act
P4B Health Department vacancy posting
P4C Health Department’s September 10, 2001 Department Policy and Procedure # 14 for Reduction-in-Force Actions
P4D Dr. Timothy Monroe’s October 26, 2001 email message re: Health Department Appeal and Grievance Policy
P4E Dr. Timothy Monroe’s November 20, 2001 email message re: Reorganization and Staffing Change
P5A Performance Evaluations and various correspondence regarding job performance of Petitioner dated: 11/3/87; 11/17/87; 2/21/90; 10/31/89; 11/3/89; 10/26/90; 11/5/94; 4/8/96; 11/2/96; 11/4/97; 10/30/98; 10/30/99; 10/26/99; 10/23/00; 5/6/95; 5/10/95; 12/8/00
P5B Performance Evaluations and various correspondence regarding job performance of Petitioner dated: 11/4/86; 6/27/87; 11/17/87
P6B Petitioner’s Job Description Questionnaire completed by Petitioner on December 19, 2000
P6C Petitioner’s May 1, 2000 “FCDPH Administration – Financial Positions”
P6H Division of Administrative Services Organizational Chart
P7A-J Petitioner’s Notes of Meetings with Dr. Timothy Monroe
P8 Petitioner’s October 30, 2001 Employee Grievance to Dr. Robert G. Dillard
P 9 Statement of Timothy Monroe
P10 Petitioner’s December 13, 2001 Response to Statements of Dr. Timothy Monroe and Management Team
P11 Board of Health’s December 21, 2001 Response to Petitioner’s Grievance
P12 Dr. Timothy Monroe’s August 8, 2001 Documentation of Oral Warning to A.J. Miyares Regarding Work Performance
P13A Dr. Timothy Monroe’s November 1, 2001 Evaluation and Written Warning to Petitioner
P13B Dr. Timothy Monroe’s notes of interviews with employees and other individuals
P14A Dr. Timothy Monroe’s November 7, 2001 Termination of Employment by Reduction-in-Force Action
P14B Dr. Timothy Monroe’s November 7, 2001 Documentation of Rationale and Procedure for Reduction-in-Force Action
P14C Dixon Odom’s January 8, 2001 Forsyth County Department of Public Health Finance Operations Review
P14D Petitioner’s Job Description Questionnaire completed by Petitioner on December 19, 2000
P14E Health Department Organizational Chart
P15 Petitioner’s November 28, 2001 Memorandum titled Appeal of Reduction in Force (RIF) Causing Termination of my Employment and addressed to Office of Administrative Hearings
The following Exhibits offered by the Respondents were received in evidence:
R1 Dennis Harrington’s September 7, 2001 Letter to Dr. Timothy Monroe
R2 Petitioner’s Job Description Questionnaire completed by Petitioner on December 19, 2000
R3 Dr. Timothy Monroe’s August 8, 2001 Documentation of Oral Warning to A.J. Miyares Regarding Work Performance
R4 Dr. Timothy Monroe’s November 7, 2001 Termination of Employment by Reduction-in-Force Action
R5 Dr. Timothy Monroe’s November 7, 2001 Documentation of Rationale and Procedure for Reduction-in-Force Action
R6 Health Department’s September 10, 2001 Department Policy and Procedure # 14 for Reduction-in-Force Actions
R7 Health Department’s October 26, 2001 Department Policy and Procedure #15 for Employee Grievances
R8 Dr. Timothy Monroe’s November 1, 2001 Evaluation and Written Warning to Petitioner
R9 Dr. Sherman Kahn’s December 8, 2000 Written Warning re: Bank Deposits of Daily Cash Receipts to Petitioner
R10 Peggy Lemon’s February 20, 2001 Memorandum to Management Team re: Realignment of Financial and Budgetary Duties and Responsibilities
R11 Graham Pervier’s February 20, 2001 Memorandum to Peggy Lemon re: assumption of responsibility for Health Department financial and budgetary matters
R12 Dixon Odom’s January 8, 2001 Forsyth County Department of Public Health Finance Operations Review
R13 Forsyth County Internal Audit Department’s Public Health Finance Administration Opportunities for Improvement Highlighted in Prior Audits
R14 Affidavit of Dr. Charles Woods
R15 Statement of Timothy Monroe
R16 Statements of Health Department Management Team (Lynn Hale, Lynne Mitchell, Abdul Natour, Fred Overstreet, Peggy Lemon)
R17 Petitioner’s December 13, 2001 Response to Statements of Dr. Timothy Monroe and Health Department Management Team
R18 Board of Health’s Draft Statement of A.J. Miyares (unsigned)
WITNESSES
Petitioner presented the following witnesses:
A.J. Miyares
Dr. Thomas Dundon
Ward Miller
Sam Howard
Jan Hicks
Patti Frye
Rita Cook
Carol Gearhart
Dr. Timothy Monroe
Dr. Louis Serrano
Respondents presented the following witnesses:
Dennis Harrington
Dr. Timothy Monroe
Peggy Lemon
Mayte Grundseth
Kevin Beauchamp
Elena Lopez
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. From official documents in the file, sworn testimony of the witnesses, and other competent and admissible evidence, it is found as a fact that:
FINDINGS OF FACT
The Reduction-in-Force Action by the Health Department
1. Angel J. Miyares, Petitioner, was born in and is a native of Cuba, the country of his national origin, immigrated to the United States of America, and became a naturalized USA citizen on or about June 5, 1970. Mr. Miyares speaks English with an accent related to the language of his country of national origin. Mr. Miyares was employed by Forsyth County on or about November 1981, and continued in the employment of the County until December 7, 2001, when his employment was terminated by a reduction-in-force action (“RIF”) initiated and implemented by C. Timothy Monroe, M.D., Director of the Forsyth County Department of Public Health (Health Department). Petitioner began working for Respondent Health Department in March of 1986 and at the time of the employment actions complained of, Petitioner was over 62 years old, had 20 years of service to Forsyth County and was earning an annual salary of $64,834, being one of the highest paid County employees working in the Health Department.
2. On June 1, 2001, Dr. Timothy Monroe began employment as the Director of the Health Department.
3. For approximately the last 15 years of his employment by the County, Mr. Miyares worked in the Health Department, holding at various times the positions of Administrative Officer II, Assistant Health Director, Local Public Health Administrator I, and Director of Administrative Services. During Mr. Miyares’ tenure as Director of Administrative Services until approximately February 2001, Mr. Miyares’ duties included responsibility for finance and for administrative services of the Health Department, including the computer center, computer systems, medical records, vital records and statistics, the Forsyth County immunization tracking system, surveillance and statistical unit, building and grounds, and security.
4. As of January 1, 2001, Petitioner held the position of Administrative Officer I. In this position, Petitioner was a member of the Health Department’s management team and reported directly to Dr. Monroe. Also as of this date, according to Petitioner’s job description and Petitioner’s deposition and hearing testimony, Petitioner’s job duties and responsibilities included:
a. overall responsibility for all financial affairs of the Health Department on the local, State and Federal level, including all reporting requirements, internal control of financial and billing systems, Medicaid reimbursement reporting and Medicaid cost settlement activities;
b. overall responsibility for computer systems of the Health Department;
c. acting as Director of the County-Wide Immunization Tracking System; and
d. supervising Administrative Assistant, Reimbursement Officer, Forsyth County Immunization Tracking System Coordinator, Computer Office Manager and Medical Records Manager positions.
5. Respondent Health Department is a public agency which provides preventive health services and medical treatment in the Forsyth County area. Respondent Health Department is a county health department as defined in North Carolina General Statutes (N.C.G.S.) § 130A-34.
6. Employees of Respondent Health Department are subject to the State Personnel Act pursuant to N.C.G.S. § 126-5(a)(2)(c). Respondent Health Department is subject to the State Personnel Act as codified in N.C.G.S. § 126-1 et seq. and regulations thereto at 25 N.C.A.C. 01I.1700 et seq. Neither Respondent Health Department nor the board of county commissioners for Forsyth County has applied for “substantial equivalency” designation from the State of North Carolina’s Office of State Personnel as to its employment policies and specifically its reduction-in-force policy and they have not otherwise received “substantial equivalency” exemption pursuant to N.C. Gen. Stat. § 126-11. 25 N.C.A.C. 01I.1701 (Local Government Employment Policies-Applicability) regarding local employees being paid entirely or in part from federal funds, states that “local governing boards are authorized by GS. 126 to establish personnel systems which will fully comply with the applicable federal standards and then may remove such employees from the state system to their own.” Respondent failed to show that it complied in accordance with substantial equivalency requirements and thus employees are not removed from the state system. Respondent Health Department is therefore not exempt from the provisions of Chapter 126 and is subject to guidelines and/or policies established by the North Carolina Office of State Personnel.