FORSYTH COUNTY / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
06 OSP 0211
LELIA J. BAILEY,
Petitioner,
v.
WINSTON-SALEM STATE UNIVERSITY,
Respondent. / DECISION
The above-captioned case was heard before Sammie Chess, Jr., Administrative Law Judge, on 26 July 2006, in High Point, North Carolina.
APPEARANCES
For Petitioner: Lelia J. Bailey, Pro Se
901 Gray Avenue
Winston Salem, N.C. 27101
For Respondent: John P. Scherer, II
Assistant Attorney General
Education Section
N.C. Department of Justice
P. O. Box 629
Raleigh, North Carolina 27602
EXHIBITS
Admitted for Respondent
1. Performance Evaluation for 2002-2003, dated May 28, 2003.
2. Memo Re: Office matters - extended office hours dated September 26, 2005.
3. Final Written Warning - Dated: Sept. 28, 2005
4. Pre-Disciplinary Conference Letter dated: October 3, 2005
5. Letter of Dismissal Dated: October 5, 2005
6. Final Agency Decision - SPA Grievance Letter - Dated January 19, 2006
7. State Personnel Manual, Section 7, Page 3 (Disciplinary Action, Suspension and Dismissal
8. Letter to Ms. Bailey from Freeman Chiropractic Center dated November 16, 2005.
WITNESSES
Called by Petitioner
Lelia Bailey
Called by Respondent
Dr. Ike Okonta
Wanda Parker
Sharon Warren-Cook
STATEMENT OF THE CASE
The issue for consideration at this hearing is whether Respondent had just cause for dismissing Petitioner for unacceptable personal conduct, i.e., insubordination?
FINDINGS OF FACT
On the basis of careful consideration of the testimony presented at the hearing, the documents and exhibits received into evidence, and the entire record in this proceeding, the undersigned finds the following:
1. The Office of Administrative Hearings has personal and subject matter jurisdiction of this contested case pursuant to Chapters 126 and 150B of the North Carolina General Statutes.
2. At the time of his discharge, Petitioner was a permanent State employee subject to Chapter 126 of the General Statutes of North Carolina (the State Personnel Act) and is a citizen and resident of Forsyth County, North Carolina.
3. Respondent, Winston-Salem State University (WSSU), is subject to Chapter 126 and was Petitioner’s employer.
4. Petitioner had approximately four years of service as an Administrative Assistant with the Respondent in the Department of Social Sciences at the time of her dismissal.
5. On 5 October 2005, WSSU discharged Petitioner. According to Petitioner's dismissal letter dated 5 October 2005, Respondent dismissed her due to unacceptable personal conduct, specifically insubordination and failure to perform legitimately assigned duties. [Respondent Exhibit 5]
6. On 23 February 2006, Petitioner filed a document entitled “Petition for Contested Case Hearing,” requesting a contested case hearing with respect to her termination from Respondent University.
7. Dr. Ike Okonta, Chair of the Social Sciences Department at WSSU, was Petitioner’s direct supervisor. In late May 2003, Dr. Okonta conducted a performance review with Petitioner and noted that she needed to improve her arrival time to the office and her courtesy toward faculty, students, and the public. [Resp. Exh. 1]
8. In 2004, Respondent initiated discussions about an evening and weekend program. For the next year, Dr. Okonta apprised Petitioner and other employees of the future potential need for occasional evening work hours to support this possible program. Sometime in 2005, Respondent began an evening and weekend program. At first, Dr. Okonta provided administrative and clerical support, such as keeping the department office open and checking out audio/visual equipment to adjunct night faculty. Due to the birth of his children, Dr. Okonta needed additional administrative support, since he could no longer stay in the evening.
9. On 26 September 2006, Dr. Okonta met with Petitioner and Ms. Wanda Parker (hereinafter “the staff”), a program assistant for social work. Ms. Parker was relatively new to this department and had been hired to support the social work program. This program was a subset in the Social Sciences department. Ms. Parker’s job description included approximately seventy-five percent (75%) of her time allotted to the social work program and twenty-five percent (25%) of her time allotted to general administrative support for the department.
10. In the meeting Dr. Okonta explained that he would need the staff to keep the office open on Tuesdays and Thursdays until 6:00 P.M. On the days that a staff member had to stay until 6:00 P.M., that person could come in later than the normal report time of 8:00 A.M. or come in later on the following day. Further, Dr. Okonta asked Petitioner and Ms. Parker to begin the coverage on Tuesday 27 September 2005 and Thursday 29 September 2005. Dr. Okonta left the decision of who was to cover these days up to Petitioner and Ms. Parker.
11. Ms. Parker did not comment during the meeting because she had no problem with Dr. Okonta’s request. Petitioner, however, interrupted Dr. Okonta and said in a loud voice that she would not change her hours. She further stated that Dr. Okonta could not make her change her hours because she had been an assistant before he was a department chair.
12. Dr. Okonta responded in a calm manner and asked her if she knew what she was saying. He reiterated that he was only asking her to stay until 6:00 P.M. Petitioner still responded that she was not going to do it and no one could make her do it.
13. After the meeting ended, Ms. Parker asked Petitioner who should cover that week, and Petitioner responded that she was not going to stay until 6:00 P.M. Dr. Okonta sought advice from WSSU Human Resources (HR). Based on their advice, he drafted a written memorandum to Petitioner and Ms. Parker setting forth his request for them to cover the office until 6:00 P.M. on Tuesdays and Thursdays. [Resp. Exh. 2]
14. Dr. Okonta presented the memo to Ms. Parker, who signed it and returned it to him. After Dr. Okonta left the memo on Petitioner’s desk, she grabbed the memo, walked to Dr. Okonta’s office door, announced in a loud voice that she was not going to sign it, and tossed the memo at Dr. Okonta’s desk.
15. Later that day on 26 September 2005, Dr. Okonta told the staff that Petitioner could stay until 6:00 P.M. on Tuesday 27 September 2005 and Thursday 29 September 2005, and Ms. Parker could stay until 6:00 P.M. the following week.
16. The next day, Tuesday 27 September 2005, Petitioner left the office at 5:00 P.M. rather than follow Dr. Okonta’s request to cover the office until 6:00PM.
17. On 28 September 2005, Dr. Okonta consulted with WSSU HR and issued a final written warning to Petitioner for her conduct on 26 September 2005 and for her insubordination and attitude toward Dr. Okonta on 27 September 2005. He repeated his order that Petitioner work until 6:00 P.M. on 29 September 2005. In the written warning conference, which was also attended by Ms. Sharon Warren-Cook, Petitioner offered no justification for her failure to stay till 6:00 P.M. on Tues. 27 September 2005 and refused to sign the memo. [Resp. Exh. 3]
18. On 29 September 2005, Petitioner left at 5:00 P.M. and did not stay until 6:00 P.M. as ordered by Dr. Okonta.
19. After discussing the situation further with WSSU HR and his supervisors, Dr. Okonta issued a Pre-Dismissal Conference Notice to Petitioner on 3 October 2005. This notice was issued due to Petitioner’s continued refusal to follow his request. [Resp. Exh. 4] At the conference, Petitioner gave three explanations for her conduct. First, she thought Dr. Okonta’s request was too short of notice. Second, she refused to comply because Dr. Okonta seemed demanding. Third she said she could not stay until 6:00 P.M. because she had plans to do volunteer work and exercise at the YMCA.
20. Dr. Okonta found her excuses unconvincing and unacceptable. He testified that he had kept her notified of the impending schedule change for months prior to the actual date of change. Second, he made the schedule change as a request and issued it in a non-demanding tone. Third, he believed that Petitioner could alter her time for exercise and volunteer work as needed to coordinate with her work schedule. Thus, Dr. Okonta issued a letter of dismissal on 5 October 2005 for insubordination. [Resp. Exh. 5]
21. Dr. Okonta testified that he decided to dismiss Petitioner because of her repeated acts of insubordination and rudeness. He had repeatedly provided her oral warnings for her behavior and a written warning for insubordination on 28 September 2005 (as listed above in paragraph 17.) Petitioner continued to refuse to accede to his orders forcing him to terminate her for misconduct.
22. On 5 October 2005, WSSU sent a letter to the Petitioner. This letter was formal notice that she was dismissed from her position due to failure to perform legitimately assigned duties and for unacceptable personal conduct - insubordination. [Resp. Exh. 5]
23. On 4 January 2006, a Grievance Hearing was held. The Committee’s recommendation was forwarded to the Chancellor for the Final Agency Decision on 11 January 2006.
24. Chancellor Martin notified Petitioner that he was upholding her termination in a letter dated 19 January 2006. This letter also contained the required appeals process information. [Resp. Exh. 6]
25. In her hearing testimony, Petitioner claimed that she had a doctor’s appointment and commitments to a guardian ad litem program that prevented her from staying until 6:00 P.M. She denied that she had made the statements attributed to her by Ms. Parker and Dr. Okonta on 26 September 2005.
26. This court finds that Petitioner’s version of the events is not credible. Under cross examination, Petitioner admitted her guardian ad litem commitments started in October, not September 2005. Additionally, Petitioner admitted that she did not have a doctor’s appointment on the evenings of 27 or 29 September 2005. [Resp. Exh. 8] Ms. Parker and Dr. Okonta provided credible testimony of Petitioner’s rude and disrespectful comments when asked to simply alternate staying one (1) hour late two (2) days a week. Finally, Dr. Okonta, Ms. Parker, and Ms. Warren-Cook provided credible testimony and evidence of Petitioner’s repeated failure to follow Dr. Okonta’s requests.
27. Petitioner’s rude demeanor and disrespectful conduct and attitude toward Dr. Okonta persisted even at the hearing.
CONCLUSIONS OF LAW
1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case pursuant to Chapter 126 and 150B of the North Carolina General Statutes
2. Section 7, page 3 of the State Personnel Manual defines insubordination as the willful failure or refusal to carry out a reasonable order for an authorized supervisor. This Court finds that Dr. Okonta issued reasonable requests to Petitioner regarding her work schedule. This Court further finds that Petitioner’s disrespectful conduct and comments and blatant unwillingness to change her work schedule and her failure to stay for one (1) hour on 27 and 29 September 2005 constituted insubordination.
3. Insubordination is unacceptable personal conduct as defined by the State Personnel Manual. This Court finds that Petitioner’s insubordination was unacceptable personal conduct.
4. Pursuant to N.C.G.S. § 150B-35(d), the Respondent has the burden of proving that it had just cause for discharging the Petitioner from employment.
5. As established in the foregoing Findings of Fact and Conclusions of Law, Respondent showed by a preponderance of the evidence that Petitioner was insubordinate and had engaged in unacceptable personal conduct.
6. Respondent has proven that it had just cause to dismiss Petitioner.
On the basis of the above Conclusions of Law, the undersigned issues the following:
DECISION
It is hereby ordered that the Respondent’s decision to terminate Petitioner for insubordination from the position of Administrative Assistant I is AFFIRMED.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Services Center, Raleigh, N.C. 27699-6714, in accordance with N.C.G.S. § 150B-36(b).
NOTICE AND ORDER
The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to Decision and to present written arguments to those in the agency who will consider this Decision. N.C.G.S. § 150B-36(a).
The agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.
The agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.
This the 6th day of September, 2006.
______
Sammie Chess, Jr.
Administrative Law Judge
CERTIFICATE OF SERVICE
I certify that the foregoing Proposed Decision was served on Petitioner by depositing copies in the United States mail, first-class postage prepaid, addressed to:
Lelia J. Bailey
901 Gray Avenue
Winston-Salem, NC 27101
This day of August 2006.
______
John P. Scherer II
Assistant Attorney General