STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD 10 OSP 2956

Cynthia W. Cole,
Petitioner,
vs.
NC Agricultural and Technical State University,
Respondent / )
))
)
)) / DECISION

The above-captioned case was heard before the Honorable Selina M. Brooks, Administrative Law Judge, on November 23, 2010, in Greensboro, North Carolina.

APPEARANCES

FOR PETITIONER: Cynthia W. Cole, pro se

P.O. Box 714

Greensboro, N.C. 27402

FOR RESPONDENT: Katherine A. Murphy

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, N.C. 27602

EXHIBITS

Admitted for Petitioner:

Exhibit No. / Date / Document
1 / 12/11/09 / E-mail from Cole to Martin
2 / 11/19/09 / Handwritten Statement
4 / various / Performance Evaluations
5 / 1/26/10 / Documentation to Sylvia Anderson
6 / 12/01/09 / E-mail from Cole to Kulii
7 / 12/03/09 / E-mail forwarded by student to Cole
8 / 12/22/09 / E-mail from Kulii to Cole, et al.
9 / 1/28/10 / E-mail forwarded by Cole to Anderson

Admitted for Respondent:

Exhibit No. / Date / Document
1 / 12/07/09 / Letter from Kulii re: transfer of Cole
2 / 12/08/09 / Letter from Kulii to Cole (First Written Warning)
3 / 12/14/09 / Revised Letter from Kulii to Cole
4 / 12/21/09 / Letter from Kulii to Cole (Second Written Warning)
5 / 1/04/10 / E-mail from Kulii to Cole
6 / 1/12/10 / E-mail from Cole to Kulii
7 / 1/19/10 / Memo from Kulii to Butler
8 / 1/21/10 / Notification of Pre-Disciplinary Conference
9 / 1/25/10 / E-mail from Kulii to Cole
10 / 1/28/10 / Dismissal Letter

WITNESSES

Called by Petitioner:

Shelby Jean Hunt

Jocelyn White

G. Sitrena McLendon

Velma Speight-Buford

Cynthia W. Cole

Called by Respondent:

Elon Kulii

ISSUES

(1) Whether Respondent had just cause to dismiss Petitioner.

(2) Whether Petitioner was dismissed in violation of N.C. Gen. Stat. § 126-85.

ON THE BASIS of careful consideration of the sworn testimony of witnesses presented at the hearing, documents received and admitted into evidence, and the entire record in this proceeding, the undersigned makes the following findings of fact. In making these findings, 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 interest, bias or prejudice the witness may have; the opportunity of the witness to see, hear, know and remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether such testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case pursuant to Chapters 126 and 150B of the North Carolina General Statutes.

2. Petitioner Cynthia W. Cole was a permanent State employee subject to Chapter 126 of the North Carolina General Statutes.

3. Respondent North Carolina Agricultural and Technical State University (“NCA&T”) is subject to Chapter 126 and was Petitioner’s employer.

4. Petitioner was dismissed from her employment at NCA&T on January 28, 2010. At the time of her dismissal, Petitioner was an Administrative Assistant in the English Department. Resp. Ex. 10

5. Dr. Elon Kulii is currently the Interim Chair of the English Department at NCA&T, and was the Interim Chair at the time of Petitioner’s dismissal. T p. 11

6. As the department chair, Dr. Kulii was Petitioner’s direct supervisor. T pp. 11-12

7. Petitioner was transferred to the English Department in 2008. Prior to her transfer to English, she had been an Administrative Assistant in the Physics Department. T pp. 12-13

8. At the time of Petitioner’s transfer to English, Dr. Kulii was not yet the Interim Chair, and he and Petitioner got along well. When Dr. Kulii became Interim Chair in July of 2009 and began to supervise Ms. Cole, things changed. By about October of 2009, Dr. Kulii felt that their relationship had begun to deteriorate. T pp. 13-14, 55-56

9. There were occasions when Petitioner would be away from her desk and faculty would ask Dr. Kulii when she would be back. Dr. Kulii was not able to tell them, because he did not know where Petitioner had gone. Petitioner would leave without saying anything to Dr. Kulii and might be gone anywhere from fifteen minutes to an hour. Dr. Kulii asked Petitioner to let him know when she was taking a break and to forward the telephones to his office. He also requested that she take her lunch breaks at the same time each day. T pp. 16-17

10. Petitioner would sometimes arrive late to work without calling to let Dr. Kulii know she would be late. Dr. Kulii asked that she call to let him know if she was going to be more than thirty minutes late. T pp. 17-18

11. Petitioner would sometimes comply with Dr. Kulii’s requests, but he sensed that she resented his attempts to set rules for her. Dr. Kulii found that Petitioner insisted on doing things her way on her time schedule. For example, Petitioner would bring papers for Dr. Kulii to sign when he had not had a chance to review them and was busy talking with a student. Dr. Kulii asked her to bring him a copy when she brought the original for signature. Petitioner would provide a copy, but often not until days later. In addition, Dr. Kulii would ask Petitioner to enter course scheduling information into Banner, and Petitioner would not do it until several hours, days, or even a month, later. T pp. 18, 21-22; Resp. Ex. 7

12. Dr. Kulii testified to the following incident. There was a room located between two corridors of faculty offices which Petitioner had turned into a lounge. Two faculty members suggested that the room should be made into a student resource room instead. Petitioner and the faculty members both tried to convince Dr. Kulii of their positions. Ultimately, Dr. Kulii decided to move the lounge and convert the room to a student resource room. Petitioner became upset and belligerent with Dr. Kulii. T pp. 19-21

13. Petitioner had several other angry outbursts. After one such outburst, on December 7, 2009, Dr. Kulii wrote a letter to the Dean, requesting that Petitioner be transferred to another department. In fact, this was not the first time Dr. Kulii had asked that Petitioner be transferred, because he realized their relationship had deteriorated so much. T pp. 14-15, 23-27; Resp. Ex. 1

14. The Dean refused to transfer Petitioner. Instead, he told Dr. Kulii to document any problems he was having with Petitioner. T pp. 27-28

15. Dr. Kulii gave Petitioner a written warning for unacceptable personal conduct based on the December 7 incident. T pp. 14-15, 23-24; Resp. Ex. 2

16. Although the written warning was based on personal conduct, the letter was mistakenly captioned “Written Warning for Job Performance.” In response to Petitioner’s complaint to Human Resources about the incorrect caption, Dr. Kulii revised the letter but did not change the substance of the warning. The written warning states, “You entered my office and began to speak in an extremely loud and argumentative tone of voice regarding several issues. The demeanor that you displayed was both unprofessional and belligerent, and was not an appropriate manner in which to address your supervisor. I have counseled you on several occasions regarding this behavior, and it continues to occur.” T pp. 24-25; Resp. Ex. 3

17. Concerning December 7, Petitioner testified that in response to Dr. Kulii’s directives, “I said to him that if he were present more, I would have time to do my job.” T p. 108

18. Following another incident during which Petitioner screamed and shouted at Dr. Kulii, he gave her a second written warning for unacceptable personal conduct, dated December 21, 2009. T pp. 28-30; Resp. Ex. 4 Petitioner testified concerning this second written warning that “none of the meetings that [Dr. Kulii] talks about ever took place.” T p. 130

19. According to Petitioner, Dr. Kulii came to Petitioner’s office on December 17, 2009, and handed her an envelope, which she assumed contained the amended version of the first written warning. Much later, Petitioner discovered that there were two envelopes, one of which contained the second written warning. T pp. 128-30

20. Despite the problems he was having with Petitioner, Dr. Kulii did not want to dismiss her. He continued to try to convince the Dean and Human Resources to transfer her to another department. T p. 31

21. Following the advice of the Dean and Human Resources, on January 4, 2010, Dr. Kulii sent Petitioner an e-mail making clear his expectations for her. All of the items in the e-mail had been discussed with Petitioner prior to this e-mail, yet she had continued to ignore his directives. In particular, the January 4 e-mail stated: “When you are asked to modify the class schedule in Banner . . . , please do so immediately. This is a top priority.” T pp. 31-35; Resp. Ex. 5

22. The events leading up to Petitioner’s termination occurred on January 12 and 13, 2010. Dr. Kulii explained that as department chair, he might have as many as thirty courses listed under his name, because the chair is used as a placeholder in the course scheduling until the faculty assignments are finalized. It happened that at the beginning of the Spring 2010 semester, one course was left in Dr. Kulii’s name that he was not supposed to teach. On January 12, a student reported to Petitioner that on two occasions no instructor had shown up to teach this particular class; Dr. Kulii was still listed as the instructor of record for the course. Without speaking to Dr. Kulii first, Petitioner sent an e-mail to Dr. Kulii, copying David Aldridge, the Assistant Dean. The e-mail stated that students had twice attended a class for which no instructor had appeared and that the class was assigned to Dr. Kulii. T pp. 36-38; Resp. Ex. 6 In relationship to this incident, Petitioner testified that she assumed that if Dr. Kulii was not in his office that he was not on campus working and chose not to call him on his cellphone. T. 137-38

23. Dr. Kulii believed that Petitioner was trying to embarrass him. In fact, Petitioner admitted that she knew that Dr. Kulii was not going to teach the course and that the students would show up a second time to a class with no instructor. Petitioner testified that although she had Dr. Kulii’s cell phone number, she did not call him instead of going to Dean Aldridge because she was angry that Dr. Kulii spent so much time out of the office. T pp. 41, 68-69, 138-40

24. When Dr. Kulii discussed the situation with Petitioner, she was unprofessional and spoke to him in a sarcastic manner. Dr. Kulii lined up an instructor to teach the course, and directed Petitioner to enter that instructor into Banner. Dr. Kulii made the request at about 2:00 p.m. on January 12, but Petitioner still had not done it the next morning. Even though Dr. Kulii had recently reminded Petitioner in the January 4 e-mail that entering course information into Banner was a top priority and should be done immediately, Petitioner did not enter the instructor assignment into Banner until Dr. Kulii asked her a second time on January 13. T pp. 38-41; Resp. Ex. 8

25. Petitioner testified that she had not entered the instructor into Banner as Dr. Kulii requested because “I was so busy.” However, given that it would only have taken her a matter of seconds to do it, this testimony is not credible. T pp. 135, 141

26. Dr. Kulii made one last effort to have Petitioner transferred. On January 19, 2010, he wrote a memorandum to Linc Butler in Human Resources, in which he outlined all the difficulties he was having with Petitioner, culminating with the events of January 12 and 13. T pp. 42-43; Resp. Ex. 7

27. Neither the Dean nor Human Resources would allow Petitioner to be transferred, so Dr. Kulii scheduled a pre-disciplinary conference for Petitioner. T pp. 42-43; Resp. Ex. 8

28. The Notice of Pre-Disciplinary Conference informed Petitioner that the purpose of the conference was to determine what disciplinary action, up to and including dismissal, was appropriate due to her unacceptable personal conduct on January 12, 2010, specifically the manner in which she spoke to Dr. Kulii and her insubordination in not entering the information regarding the course assignment into Banner. The conference was originally scheduled for January 21, but at Petitioner’s request, the conference was rescheduled and held on January 26, 2010. T pp. 43-44; Resp. Ex. 8 & 9

29. Dr. Kulii did not want to dismiss Petitioner, but he felt he had no choice. Because of her angry outbursts and insubordination, he could no longer work with her. Convinced that her behavior would not change and that she would not be transferred to another department, Dr. Kulii dismissed Petitioner on January 28, 2010, for unacceptable personal conduct. T pp. 42-45; Resp. Ex. 10

30. Petitioner testified that she is “not repentant” about her conduct with Dr. Kulii, and when she disagreed with some of Dr. Kulii’s decisions she would take action on her own. T pp. 111, 113-117 She testified that she disagreed with his handling of a sexual harassment allegation, his attendance in his office, his processing of a procurement card, and that she did not like to call his cell phone when he was not present in the office. T pp 121, 126, 127 & 137-40