STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF BURKE 07 OSP 2186
EDWARD ALAN ROPER, )
Petitioner, )
v. )
) DECISION
BROUGHTON HOSPITAL, )
DEPARTMENT OF HEALTH AND )
HUMAN SERVICES, )
Respondent. )
THIS MATTER came before the undersigned Administrative Law Judge for hearing on January 12, 2009 at 9:00 a.m. at Broughton Hospital in Morganton, North Carolina.
APPEARANCES
Petitioner: Edward Alan Roper, pro se
331 Pete Brittain Road
Morganton, NC 28655
Respondent: Elizabeth Guzman
Assistant Attorney General
Broughton Hospital
P. O. Box 121
Morganton, NC 28655
STATEMENT OF THE CASE
Petitioner, a career state employee, applied for the position of Networking Technician but was not selected for the position. Petitioner filed a petition with the Office of Administrative Hearings, alleging failure to receive priority consideration for a promotion to the position of Networking Technician.
ISSUE
Was the Petitioner entitled to receive priority consideration, pursuant to N.C.G.S. sec. 126-7.1(c), over the non-state employee applicant who was selected for the position in question and, if so, has Petitioner met his burden of establishing that Respondent wrongfully denied him a promotion to the position of Networking Technician?
WITNESSES
The following people testified for the Petitioner: Lisa Yow, Twila Philyaw, Phil Shirley, Darin Kiracofe, Mary Ragsdale, Emmett Massey.
EXHIBITS
Petitioner offered exhibits 1 through 5, which were received in evidence at the hearing;
Respondent offered exhibit 1.
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 Petitioner has been continuously employed with the State since 1981 and currently serves as a Correctional Officer with the Department of Corrections.
2. On September 3, 2007 he applied for a position as a Networking Technician position that was advertised at Broughton Hospital.
3. The job posting for the position indicated a requirement of “graduation from a two-year technical school with a degree in electronics, networking or a closely related degree.” The requirements allowed, however, for substitution of “experience in the field of work related to the position’s role.”
4. There were ten applicants for the position who were screened and all were interviewed by the manager of Information Technology (IT), Phil Shirley, and the Network manager, Darin Kiracofe. Each applicant was asked an identical set of questions.
5. A non-State employee, Emmett Massey, was selected for the position. Mr. Shirley informed Petitioner that he was not selected by letter dated November 19, 2007.
6. On December 6, 2007, Petitioner filed a Petition for a Contested Case Hearing, alleging he was denied priority consideration.
7. Petitioner indicated in his opening statement that he intended to show that the Respondent had violated promotional priority consideration law and policy in hiring the non-State employee applicant because Petitioner had education related to the field of information technology while the selected applicant did not. Petitioner called as a witness Twila Philyaw, the former administrative services manager at Foothills Correctional Institution where Petitioner is employed, who established his status as a career State employee entitled to promotional priority consideration.
8. Mr. Massey’s former supervisor and the IT director at Caldwell Freight Lines, Lisa Yow, testified about Mr. Massey’s training and experience while employed at Caldwell Freight. Ms. Yow testified that Mr. Massey had worked at Caldwell Freight for over two and a half years in the IT department in a variety of non-programming IT functions, including some networking-related tasks. Caldwell Freight Lines was comprised of three companies with over one hundred personal computer (PC) users and Mr. Massey assisted in installing, repairing, troubleshooting, and establishing network connections. Ms. Yow testified that all of his training was administered on the job and that he was a good employee who performed well. She also testified that one learned more in the PC and networking field by working in it on the job than by sitting in the classroom.
9. Mr. Shirley testified that he had been the IT manager at Broughton for twelve and a half years. He has a bachelor’s degree in computer information systems and has been employed with the state in IT for twenty-three years. With Mr. Kiracofe’s input, he developed a set of questions for applicant interviews in order to standardize the process, allow the applicants to demonstrate their knowledge and vision of the networking field, and test how the applicant would respond to technical emergency situations.
10. Mr. Shirley testified that the interview responses Petitioner gave demonstrated a lack of currency in the IT field. He pointed out that Petitioner’s degrees and certifications were five to six years old and Petitioner had never worked in the IT field. Some of Petitioner’s responses to questions regarding current knowledge of troubleshooting and disaster recovery were of concern to Mr. Shirley because of their possible detrimental effect on patient care. By contrast, Mr. Massey’s interview responses showed recent experience which Mr. Shirley referred to as “having his hand in the craft.” Shirley stressed the importance of staying current in IT because of the rapid pace of change in technology. Despite Massey’s lack of formal education in the form of degrees or certification, Mr. Shirley’s assessment of Mr. Massey’s qualifications were that they were superior to those of the Petitioner because of the recency of his experience.
11. Darin Kiracofe, the Network Manager at Broughton Hospital testified he had been employed in that capacity for over nine years. He assisted Mr. Shirley in conducting interviews of all applicants. Mr. Kiracofe testified that another applicant, a State employee, was originally selected for the position of Networking Technician because of his listed degree. It was later discovered, however, that the applicant had misrepresented his degree and was disqualified. Mr. Kiracofe testified that real-world experience in IT was more important than coursework and certifications. The Petitioner inquired of Mr. Kiracofe the importance of training in Cisco. Mr. Kiracofe responded that at Broughton Hospital it was not essential because of its narrow application as a firewall.
12. Mary Ragsdale, the Human Resources director at Broughton Hospital, testified that experience can be substituted for education in a job posting on a year-to-year basis if it is related to the position posted. A hiring manager can factor in additional information gained from the application or interview process in evaluating an applicant. She testified that promotional priority consideration means that preference is given to a career state employee applicant over a non-State employee applicant if the two are substantially equally qualified. Ms. Ragsdale testified that once minimum qualifications are met by each applicant, there is no violation of promotional priority consideration if the hiring manager determines that the non-State employee is more qualified than the State employee.
13. Mr. Massey testified that his prior related experience consisted of some limited industrial programming for the City of Hickory before going to work for Caldwell Freight Lines. At Caldwell Freight, Mr. Massey assisted in managing switching devices, routers, firewalls, and various servers and related server platforms. He also managed security patches, did some technical writing, and established new user connections to the network. Mr. Massey testified that some of his work was independent and some collaborative. He indicated that his transition from his work at Caldwell Freight to Broughton Hospital, a system roughly twelve times larger and far more sophisticated, had been seamless.
14. Petitioner did not testify.
CONCLUSIONS OF LAW
1. At the time of his application for a promotion to Network Technician, Petitioner was a career employee as defined by N.C.G.S. sec. 126-1.1 and N.C.G.S. sec. 126-7.1(c) at Foothills Correctional Facility. Petitioner is entitled to State employee preference in the hiring decision under N.C.G.S. sec. 126-7.1.
2. The position of Network Technician, which is the focus of this action, is superior to that of Corrections Officer and would have been a promotion for Petitioner.
3. Petitioner has the burden of proof.
4. Petitioner is entitled to receive priority consideration in the hiring decision under N.C.G.S. sec.126- 7.1(c); however, Petitioner must show by the greater weight of the evidence that the Petitioner’s qualifications were substantially equal to the applicant who was selected. “Qualifications” consists of training or education, years of experience, and other skills, knowledge, and abilities that bear a reasonable functional relationship to the abilities and skills required in the applied for job vacancy.
5. Petitioner has not met his burden of proof that he has substantially equal qualifications as the selected applicant. Because of the rapidly changing nature of the field of information technology, the hiring manager properly considered the currency of the selected candidate’s work experience in evaluating and weighing his qualifications, and did not violate promotional priority consideration in selecting him over the Petitioner.
RECOMMENDED DECISION
It is recommended that the State Personnel Commission AFFIRM the Department of State Treasurer's hiring decision in this matter.
ORDER
It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with the North Carolina General Statutes Section 150B-36(6).
NOTICE
Before the agency makes the FINAL DECISION, it is required by North Carolina General Statute Section 150B-36(a) to give each party an opportunity to file exceptions to this RECOMMEND DECISION, and to present written arguments to those in the agency who will make the final decision. The agency is required by North Carolina General Statues Section 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.
This the 18th day of May, 2009
______/s/______
The Honorable Selina M. Brooks
Administrative Law Judge
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