STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF GUILFORD NO. 09 OSP 4432

PAMELA D. SHOFFNER
Petitioner,
v.
NORTH CAROLINA AGRICULTURAL AND TECHNICAL STATE UNIVERSITY, MR. LINC BUTLER, ASSISTANT VICE CHANCELLOR FOR HUMAN RESOURCES,
Respondent. / DECISION

The above-captioned case was heard before the Honorable Selina M. Brooks, Administrative Law Judge, on 16 December 2009.

APPEARANCES

FOR PETITIONER: Richard J. Rutledge, Jr., Esq.

301 North Main Street, Suite 2503

Winston-Salem, N.C. 27101

FOR RESPONDENT: Kimberly D. Potter

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, N.C. 27602

EXHIBITS

Admitted for Respondent:

Exhibit / Document
1 / Letter from Karen Guy to Petitioner, Re: Work Performance - Warning
2 / 2001-2002 Performance Management Program for Petitioner
3 / 2006-2007 Performance Management Program for Petitioner
4 / Interim Performance Management Program for Petitioner from May 1, 2007 through December 31, 2007
5 / Letter from Karen Guy to Petitioner, Re: Written Warning
6 / Letter from Karen Guy to Petitioner, Re: Second Written Warning
7 / Time Sheet for Petitioner February 26, 2008 through May 1, 2008
8 / Emails between Karen Guy and Petitioner from February 26, 2008 through March 28, 2008
9 / Emails between Karen Guy and Petitioner from March 31, 2008 through May 1, 2008
10 / Letter from Karen Guy to Petitioner, Re: Pre-Disciplinary Conference
11 / Letter from Karen Guy to Petitioner, Re: Letter of Dismissal
12 / 2002-2003 Performance Management Program for Petitioner

Admitted for Petitioner:

Exhibit # / Document
1 / 2003-2004 Performance Management Program for Petitioner
2 / 2004-2005 Performance Management Program for Petitioner
3 / 2005-2006 Performance Management Program for Petitioner
4 / Excerpts from State Personnel Manual
8 / Petitioner’s handwritten Time sheets for December 2, 2007 through April 5, 2008
9 / Petitioner’s finalized Time sheets for December 2, 2007 through April 5, 2008

WITNESSES

Called by Petitioner: Pamela Shoffner

Called by Respondent: Karen Guy

ISSUES

Whether Petitioner was discharged without just cause?

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 the issues in this contested case pursuant to Chapters 126 and 150B of the North Carolina General Statutes.
  1. At the time of his discharge, Petitioner Pamela Shoffner was a permanent State employee subject to Chapter 126 of the General Statutes of North Carolina (the State Personnel Act) and was a citizen and resident of North Carolina.
  1. Respondent North Carolina State Agricultural and Technical State University (NCA&T) is subject to Chapter 126 and was Petitioner’s employer.
  1. Petitioner was employed with NCA&T for more than 7 years. At the time of her discharge on May 14, 2008, Petitioner was employed in the School of Education as an Administrative Support Associate. Petition p. 1
  1. Petitioner reported to Dr. Karen Guy who served as the Director of Student Teaching, Internships, Partnerships, and School Services in the NCA&T School of Education. Dr. Guy became Petitioner’s supervisor in late 2002 when Dr. Fred Wood retired and Dr. Guy assumed Dr. Wood’s former responsibilities. Previously, Petitioner had reported to Dr. Wood.
  1. Both Dr. Wood and Dr. Guy at various times addressed with Petitioner the need for improved punctuality.
  1. Specifically, in Petitioner’s interim 2001-2002 performance review, Dr. Wood rated Petitioner as “unsatisfactory” in one key dimension of her job based on her failure to report to work on time. Dr. Wood noted that Petitioner’s reporting to work on time was unsatisfactory even thought she had been “given more than adequate notice and assistance to correct the problem.” Resp. Ex. 2, p. 5
  1. Similarly, in Petitioner’s 2001-2002 annual performance review, Dr. Wood rated Petitioner a “below good” as to Petitioner’s reporting to work on time. Resp. Ex. 2
  2. After becoming Petitioner’s supervisor in late 2002, Dr. Guy observed that Petitioner repeatedly failed to report to work at her scheduled start time of 8 a.m. Dr. Guy met with Petitioner several times in early 2003 to discuss issues with Petitioner’s work performance, including Petitioner’s failure to report to work on time. Resp. Ex. 1
  1. As part of her essential job functions, Petitioner was required to contact elementary and secondary schools to coordinate internships and student teaching experiences. Due to the nature of the school day, Dr. Guy believed it easier to contact the necessary individuals at the elementary and secondary schools in the morning. As a result, Dr. Guy determined it was extremely important for Petitioner to report to work on time in order to efficiently perform her job.
  1. Despite repeatedly being instructed to report to work at her scheduled start time, Petitioner did not report to work at 8 a.m. but frequently came to work 15 to 20 minutes late. Resp. Ex. 1
  1. On February 10, 2003, Dr. Guy issued Petitioner a written warning for several issues, including reporting to work 15 to 20 minutes late and departing and arriving from lunch late. Resp. Ex. 1
  1. In order to assist Petitioner in arriving to work on time, Dr. Guy agreed to modify Petitioner’s start time to 8:30 a.m. In the February 10, 2003 written warning, Dr. Guy instructed Petitioner that her one hour lunch period would be taken from 1 p.m. to 2 p.m. daily. Resp. Ex. 2
  1. While Petitioner at times showed improvement in reporting to work on time, Dr. Guy testified that it continued to be an issue over a period of years which she had to address with Petitioner. Ultimately, Petitioner’s start time was returned to 8 a.m. Resp. Ex. 12
  1. In Petitioner’s 2002-2003 annual performance review, Dr. Guy again noted that Petitioner was “[f]requently late for work and returning from lunch” and ranked Petitioner a “Below Good” on a key dimension of her job based on her tardiness. Resp. Ex. 12
  1. Additionally, in the 2002-2003 annual performance review, Petitioner agreed to: 1) arrive at work at 8 a.m. effective June 16, 2003; 2) to take lunch at 1 p.m. to 2 p.m.; and 3) restate assignments for clarity and deadline. Resp. Ex. 12
  1. In Petitioner’s 2006-2007 annual performance review, Dr. Guy noted that Petitioner “needs to be more timely” and “needs to improve punctuality.” Resp. Ex. 3
  1. In Petitioner’s interim performance review for May 1, 2007 through December 31, 2007, Dr. Guy ranked Petitioner “Below Good” in a key dimension based on her tardiness and detailed in the review that Petitioner was “frequently late for work” and “need[ed] to get to work on time and manage her time better.” Resp. Ex. 4
  1. Dr. Guy provided Petitioner her interim review in January 2008 which detailed these issues. Petitioner recognized that she was often late to work and indicated she would try to improve. Resp. Ex. 4
  1. Despite the previous performance reviews and the most recent interim review for May 1, 2007 through December 31, 2007 which contained concerns about Petitioner’s tardiness, Petitioner continued to fail to report to work on time in the spring 2008. Resp. Ex. 5
  1. From 2006 until spring 2008, Dr. Guy had discussions with Petitioner repeatedly about the need to be on time and the requirement that if she were going to be tardy or absent to call into the office first thing in the morning. Despite Dr. Guy’s efforts to work with Petitioner, Petitioner continued to be tardy to work and failed to take her lunch hour at the scheduled time. Resp. Ex. 5
  1. Dr. Guy testified that Petitioner’s continued tardiness impacted the office. Petitioner was not able to get all of her work done and Dr. Guy redistributed some of it. Moreover, the repeated tardiness began to influence morale in the office.
  1. On 26 February 2008, Dr. Guy issued Petitioner a written warning for repeatedly failing to report to work on time and failing to take her lunch hour at the scheduled time. Specifically, on February 25, 2008, Petitioner was expected to report to work at 8 a.m. but did not report until 8:30 a.m. Moreover, on February 25, 2008, Petitioner did not indicate that she would be late to work. Also during the period for December 2, 2007 through January 5, 2008, Petitioner reported to work 30 minutes late on four dates as shown by her time sheets. The time sheets for the same period indicate that fourteen times out of fourteen lunch hours Petitioner did not take her lunch at the scheduled time. Resp. Ex. 5
  1. Dr. Guy in the written warning of February 26, 2008 notified Petitioner that she was expected to report to work by 8 a.m. every day and that if she would be absent or tardy in the future, Petitioner must call Dr. Guy by 8:15 a.m. Dr. Guy further instructed Petitioner that she was required to send an e-mail to Dr. Guy upon arrival and departure from the office. Resp. Ex. 5
  1. Dr. Guy also stated in the February 2008 written warning that “[a]ny further occurrences

of tardiness or failure to follow the lunch hour schedule may result in additional disciplinary action.” Resp. Ex. 5

  1. Dr. Guy testified that she asked Petitioner to send her e-mails at her arrival and departures from work so that Petitioner could see in a concrete manner what Dr. Guy was observing.
  1. Even after the February 26, 2008 written warning, Petitioner continued to report to work late and did not take her lunch hour at the scheduled time. Resp. Exs. 7 and 8
  1. On March 31, 2008, Dr. Guy issued Petitioner a written warning for “unsatisfactory performance due to excessive tardiness and failure to notify” Dr. Guy in advance of Petitioner’s tardiness. In the March 31, 2008 written warning, Dr. Guy detailed that since Petitioner’s written warning of February 26, 2008, Petitioner reported to work late 16 out of 17 days. In addition, Dr. Guy stated that even though Petitioner was instructed to call if she were going to be more than 15 minutes late, Petitioner reported 13 times since February 26, 2008, of being late more than 15 minutes and failed to call in during those times. Finally, Dr. Guy provided that while Petitioner had improved in leaving for lunch at 1 p.m., Petitioner reported from lunch 6 times more than 15 minutes late without calling. Resp. Ex. 6
  1. In the March 31, 2008 written warning, Dr. Guy informed Petitioner that she was expected to immediately correct her tardiness and report to work on time. Further, Dr. Guy instructed Petitioner that if she should be absent or tardy in the future, Petitioner must call Dr. Guy by 8:15 a.m. on that morning. Dr. Guy instructed Petitioner to continue emailing Dr. Guy upon arrival and departure from the office. Resp. Ex. 6
  1. In the March 31, 2008 written warning, Dr. Guy notified Petitioner that “[a]ny further occurrences of tardiness may result in additional disciplinary action up to and including termination.” Resp. Ex. 6,
  1. Despite the written warnings, Petitioner continued to report to work late and failed to take her lunch at the prescribed time for the one hour limit. Resp. Exs. 7 and 9
  1. Petitioner testified that she had no physical limitation preventing her from being to work on time. Petitioner admitted that she simply was a “piddler.” T pp. 51 - 52
  1. On May 2, 2008, Dr. Guy provided to Petitioner a pre-disciplinary conference notice setting a pre-disciplinary conference for May 6, 2008 at 2 p.m. Dr. Guy notified Petitioner that the conference was scheduled because since the last written warning, Petitioner had reported to work on time 0 days and noted that 23 out of 23 days Petitioner failed to send an e-mail Dr. Guy upon arrival. Resp. Ex. 10
  1. Petitioner in her e-mail notes from March 31, 2008 to May 1, 2008 had indicated she had been at work for a time period prior to her e-mail or there had been a problem with the e-mail system. However, Dr. Guy stated in the pre-disciplinary conference notice that even based on these notes, Petitioner would have been on time only 4 days out of 23. In addition, Dr. Guy stated in the notice that Petitioner sent e-mails in from lunch 16 times and was tardy during those times. Resp. Ex. 10
  1. Petitioner attended the pre-disciplinary conference on May 6, 2008 and was provided an opportunity to respond to the issues detailed in the May 2, 2008 notice. Petitioner admitted to being late but indicated that it was simply in her nature. T pp. 50, 52

36. Based on Petitioner’s conduct and her response during the pre-disciplinary conference, Dr. Guy determined that Petitioner should be discharged. Specifically, Dr. Guy determined, based on a review of all available information, Petitioner’s record of excessive tardiness, her failure to comply with procedures communicated to her regarding tardiness, and her comments during the pre-disciplinary conference, that Petitioner should be discharged. T pp. 52 - 54; Resp. Ex. 11