STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 06 OSP 0768
Katrina Pittman )
Petitioner, )
)
v. ) ) DECISION
N.C. Department of Health and )
Human Services, Division of Vocational )
Rehabilitation Services )
Respondent. )
______
This matter came before Administrative Law Judge Beryl Wade, on September 14, 2006 in Raleigh, North Carolina.
APPEARANCES
For Petitioner: David G. Schiller
Schiller & Schiller, PLLC
5540 Munford Road, Suite 101
Raleigh, NC 27612
For Respondent: Dorothy Powers
Special Deputy Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602
ISSUE
Whether Respondent had just cause to dismiss Petitioner from her employment as a
Rehabilitation Counselor I for unacceptable personal conduct consisting of insubordination based on her repeated, willful failure/refusal to carry out reasonable work requests from her supervisor including:
1. Assisting with telephone coverage on November 30, 2005;
2. Placing a box of client files on top of the mail slots after having been instructed not to do so; and
3. Failing to carry out a specific request from her supervisor to find a client eligible for services after having received a written warning on September 22, 2005 for unsatisfactory job performance and unacceptable personal conduct and a written document dated November 23, 2005 relating to Petitioner’s unsatisfactory performance and unacceptable personal conduct?
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. § 126-34.1
N.C. Gen. Stat. § 126-35
N.C. Gen. Stat. § 150B-23, et. seq.
25 N.C.A.C. 1J .0604
25 N.C.A.C. 1J .0608
25 N.C.A.C. 1J .0613
25 N.C.A.C. 1J .0614
WITNESSES
For Respondent: For Petitioner:
Shirley Young Katrina Pittman, Petitioner
Stephanie Hanes
Katrina Pittman, Petitioner
Lenore Guidoni
Kenneth Gibbs
ExhibitS
Exhibits admitted on behalf of Respondent:
1. Communications - Customer Service Communications Guidelines Policy
2. 11/1/05 Staff meeting minutes
3. 11/30/05 Stephanie Hanes’ e-mail re phones
4. 12/8/05, 12/14/05 Note on mailbox
5. Photo re Note on mailbox
7. 11/23/05 Memo re 11/15/05 meeting
8a. Medical Consultant Summary Sheet re: client CD
8b. Case Notes re: client CD
8c. Agreement to Extend Eligibility re: client CD
8d. 11/28/05 letter to Dr. re: client CD
8e. Eligibility Decision re: client CD
9. 1/9/06 Placement on Investigatory Leave With Pay letter
10. 1/9/06 Pre-disciplinary conference letter
11. 1/10/06 Letter re Pre-disciplinary conference decision
12. 1/12/06 Dismissal Letter
13. 9/22/05 Written Warning (re: client SB)
15. 11/14/05 Linda Harrington’s re: Step 2 Appeal of WW
16. Kenneth Gibbs’ 9/1/05 “Summary of meeting on 8/31/05"
17. 1/30/05 (sic) Linda Harrington’s letter re: Step 2 Appeal re: dismissal
18. 4/3/06 Carmen Odom’s letter upholding dismissal
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Exhibits admitted on behalf of Petitioner:
2 through 7: Photographs of the Vocational Rehabilitation/ Independent Office.
FINDINGS OF FACT
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 Administrative Law Judge (“ALJ”) makes the following Findings of Fact. In making these Findings of Fact, the ALJ 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 witnesses, 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.
1. The parties received notice of the scheduled hearing at least 15 days in advance of
the hearing.
2. At all times material, Petitioner Katrina Pittman (“Petitioner”) was a career state
employee and was subject to the provisions of the State Personnel Act.
3. On April 27, 2006, Petitioner filed a Petition for Contested Case Hearing with the
Office of Administrative Hearings (“OAH”) claiming she was unlawfully dismissed from her position as a Rehabilitation Counselor I without just cause in contravention of N.C. Gen. Stat. §§ 126-34.1 and 126-35.
Parties/Witnesses/History
4. Petitioner Katrina Pittman (“Petitioner”), was an employee of the N.C. Department of Health and Human Services as a Rehabilitation Counselor I with the Division of Vocational Rehabilitation Services(“VR”), Independent Living Program (“IL”), located at 436 North Harrington Street, Raleigh, N.C. Petitioner has a Bachelor of Arts Degree in Sociology and Social Welfare from Saint Augustine College and a Master’s Degree in Agency Counseling from North Carolina Central University. Petitioner has been a Rehabilitation Counselor I since 1997. Her supervisor was Kenneth (Kenny) Gibbs (“Gibbs”). Gibbs reviewed and approved all of Petitioner’s work. (T pp 99, 147, 205, 282-283)
5. The Division of Vocational Rehabilitation (“VR”) assists individuals with disabilities in obtaining competitive employment. (T p 277)
6. The Independent Living Program (“IL”), which is a program within VR helps
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individuals with significant disabilities become independent in their home or community. The IL program focuses on transitioning clients out of nursing homes or providing services that prevent them from having to go into a nursing home. The IL program is designed to assist persons with disabilities with maintaining or regaining their independence. One of the goals of the IL Program is to prevent institutionalization or to deinstitutionalize any persons that may be in a skilled facility, or elsewhere. (T pp 15,16, 206-207, 278)
7. Both the VR and IL programs deal with clients that are in very vulnerable positions. As such, VR and IL are challenging programs which require soft skills that are necessary to work with clients who may be difficult or in challenging situations. A rehabilitation counselor must have the ability to work through the difficult issues of their clients. It requires a great deal of counseling and expertise to do this effectively. Because of the difficult and challenging mission of the programs, it is important that a counselor develop negotiation and communications skills. (T pp 279, 284-285)
8. Petitioner was dismissed from her position as a Rehabilitation Counselor I effective January 12, 2006. She was dismissed because of three incidents that Gibbs deemed to be insubordination. The first was Petitioner’s failure to assist with phone coverage on November 30, 2005 after being instructed to do so several times. The second incident that Gibbs deemed insubordinate was Petitioner placing a box of files needing clerical support on top of the mailbox slots after being advised on a previous occasion not to place the box there. The third incident was Petitioner’s failure to follow through on Gibbs’ reasonable request to find client CD eligible for services after Gibbs told her that upon his review of the case and conversation with the medical consultant that the client was eligible for services. In addition, the dismissal letter specifically refers to a November 23, 2005 document issued to Petitioner related to Petitioner’s unsatisfactory performance and unacceptable personal conduct and a September 22, 2005 Written Warning issued to Petitioner for unacceptable personal conduct. (T pp 289-290; Respondent’s Exhibit 12)
9. Petitioner’s job responsibilities as a Rehabilitation Counselor included conducting home visits and taking applications to assess what the “consumers’” or “clients’” needs are. She also was responsible to request medical data and interpret medical documentation that would determine if the clients are eligible for services based on their medical disability. (T pp 206-207)
10. Kenneth (Kenny) Gibbs (“Gibbs”) has a Bachelors Degree in Social Work and a Masters Degree in Rehabilitation Counseling. He is a Certified Rehabilitation Counselor. He has been employed by the Division of Vocational Rehabilitation since 1988 and moved into a supervisory position in 1992. In 1997, he became the VR Unit Manager in the Raleigh Office. In February 2004, the IL unit of the Raleigh office also came under Gibbs’ management at the request of Lenore Guidoni (“Guidoni”). (T pp 241-244, 273)
11. As the Unit Manager for the VR and IL programs, Gibbs is responsible for oversight of the programs including eligibility decisions, policies, decisions as to what services are or are not provided, and personnel matters. (T p 275)
12. Lenore Guidoni (“Guidoni”) is the Regional Director for the central region of the North Carolina Division of Vocational Rehabilitation. She has held this position since December 2003. As such, she is the director of field operations for the central region of the state. She is responsible for ensuring that the delivery of services to clients is effective. She works with the unit managers in that regard. She handles all personnel decisions in conjunction with the managers, including hiring decisions, salary decisions, and problematic decisions. Guidoni oversees twelve VR field offices and five IL offices. She supervises approximately 360 people directly or indirectly. (T pp 237-239, 241)
13. Guidoni has been a Certified Rehabilitation Counselor since 1977 and has a Masters
Degree in Counseling from UNC-Chapel Hill. She has an extensive amount of management training. (T p 239)
14. When Guidoni took over as the Regional Director in December 2003, the then Unit
Manager of the Raleigh IL office had already submitted her resignation. Guidoni was aware that there were issues in that office. Guidoni proposed that since Gibbs was already the Unit Manager in the VR office (which shares space with the IL office), that the IL program also be put under his supervision. (T pp 241-244, 274)
15. Guidoni had known Gibbs since she hired him, and worked with him as his manager.
Gibbs was then promoted to a first line supervisor. Guidoni and Gibbs continued to have contact. Gibbs was promoted again to a manager’s position, where he and Guidoni continued to have contact as colleagues. They also served on the same management team. (T pp 240)
16. Guidoni was very familiar with Gibbs’ work from both a supervisory and collegial
standpoint. Guidoni recommended Gibbs to manage both the VR and IL units because she knew him to be a strong manager and someone who had already demonstrated his ability to effectively guide staff to perform more effectively. Guidoni noted that Gibbs had demonstrated reputation for excellence in management. (T p 242)
17. Gibbs reports directly to Guidoni. Gibbs discussed any issues that came up with
Guidoni and Guidoni gave him guidance and assistance in making improvements. Almost immediately after Gibbs took over as the IL Unit Manager, he discussed Petitioner’s casework delivery and service to clients’ problems with Guidoni. Gibbs discussed Petitioner with Guidoni at least weekly. It was more frequent than most managers discussed their staff with Guidoni. (T pp 239- 241, 244, 246-247).
18. Petitioner was employed as a first level Rehabilitation Counselor. As such, Gibbs
as her manager had to sign off on all her decisions. When Gibbs became the IL Unit Manager, he immediately became involved in Petitioner’s casework. Gibbs was concerned about Petitioner’s casework and set up review of some of her cases with the quality assurance personnel so that he could get a better understanding of the issues regarding Petitioner’s casework and so that he could provide some guidance to improve her performance. (T pp 244-245)
19. Petitioner inputs the client information into the computer (the CAT system). The
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Unit Manager, Gibbs reviews the documents and puts his approval in the system. Once Gibbs approves it, the case goes back to Petitioner to let her know that it has been approved. (T pp 209-210)
20. After determining client eligibility for the IL program, Petitioner then develops an
Independent Living Goal Plan and proceeds in providing services to the client including home modifications, vehicle modifications, lift chairs, and any other modification or equipment that would enable that person to maintain and achieve the highest level of function within their home, family, and community. (T p 207)
21. Gibbs makes the ultimate decision in determining that someone is eligible for IL
services. (T p 208)
22. Shirley Young (“Young”) is employed with the Respondent, VR’s IL Program as a
Casework Technician. Young has a four year degree in Behavioral Science and is currently working towards her Masters Degree in Rehabilitation Counseling. She has been employed with Respondent for nine years. The responsibilities of a Casework Technician are to support the Rehabilitation Counselors and provide services to persons with disabilities. This entails developing plans, activations, closures, taking applications, taking referrals, and conducting home visits and follow-ups. (T pp 12-13)
23. Stephanie Hanes (“Hanes) is employed with VR as a Counselor in Charge (“CIC”).
She has a Bachelor’s of Science in Psychology degree and a Masters in Science in Rehabilitation Psychology and Counseling. She completed an internship in the IL program while pursing her Masters degree. She became employed with VR in 2002 as a Rehabilitation Counselor I and was promoted to a CIC in April 2005. (T pp 56-58)
24. As a CIC, Hanes reports directly to Gibbs, however she works out of a different
location. Hanes is part of the management team of the Raleigh unit office. Hanes attends staff meetings in the Harrington St. office twice a month and frequently goes there to meet with Gibbs regarding personnel or management issues. In Gibbs’ absence, Hanes provides supervision and clarifications regarding expectations to staff members. She supervises her own staff of seven, including three Rehabilitation Counselors. Additionally, she carries a case load. ( T pp 58-59.)
25. Gibbs approached Guidoni repeatedly regarding his attempts to make positive
changes in Petitioner’s performance. Gibbs and Guidoni met with the personnel director several times in attempt to figure out how Gibbs could communicate in a way that would make Petitioner focus on making the changes that were needed in order to improve her performance. (T p 251)
26. Gibbs suggested to Guidoni that they transfer Petitioner to another office. Guidoni
did not approve that suggestion because VR has a policy that they do not transfer employees who are Exhibiting problems to other offices. (T p 252)
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27. Prior to Petitioner’s dismissal, Gibbs and Petitioner meet with Guidoni three times.
During these meetings, Petitioner did not communicate effectively. Petitioner brought copious notes from which she completely read. It was difficult to engage her in conversation and she did not make eye contact. When Guidoni and Gibbs tried to engage Petitioner in conversation as opposed to reading, Petitioner addressed them in a very condescending, sarcastic, and disrespectful manner. It was impossible for Guidoni and Gibbs to make any headway with Petitioner because of her argumentativeness, hostility and sarcasm. Petitioner constantly said “you’re harassing me.” (T pp 247, 249-251)