COUNTY OF GUILFORD / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
NO. 10 OSP 4323
CAROLYN SUE JENKINS,
Petitioner,
v.
NC A&T STATE UNIVERSITY,
Respondent. / PROPOSED DECISION
The above-captioned case was heard before the Honorable Donald W. Overby, Administrative Law Judge on 29 November 2010.
APPEARANCES
For Petitioner: Jennifer Reutter and Amiel J. Rossabi
Forman Rossabi Black, PA
P.O. Box 41027
Greensboro, NC 27404
For Respondent: Kimberly D. Potter
Assistant Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602
EXHIBITS
Admitted for Respondent:
Exhibit / Document1 / Letter from Lester Lugo to Carolyn S. Jenkins, Re: Placed on investigatory status with pay
2 / Memorandum from Kelly Meris and Crystal Jackson, Re: Statement of Ms. Tiffany Jones’ Termination
3 / Memorandum from Lester Lugo to Dr. Judy Rashid, Re: Violation of Academic Integrity
4 / Grade change audit trail for Tiffany Jones
5 / Course maintenance report for Tiffany Jones
6 / Transcript request for Tiffany Jones
7 / Transcript request for Tiffany Jones
8 / NCA&T Banner User Account Request Form for Carolyn Jenkins
9 / NCA&T Information Security Plan
10 / Letter from Lester Lugo to Carolyn Jenkins, Re: Pre-disciplinary conference
11 / Letter from Lester Lugo to Carolyn Jenkins, Re: Follow-up pre-disciplinary conference
13 / Letter from Lester Lugo to Carolyn Jenkins, Re: Letter of recommendation for disciplinary action due to unacceptable personal conduct
14 / NCA&T Technical Procedures Manual - Processing a Change of Grade
15 / Email from Kelly Meris to Carolyn Jenkins and others, Re: Banner Account Security
16 / Letter from Harold Martin to Carolyn Jenkins, Re: Decision in her appeal under the State Personnel Act
17 / NCA&T SPA Employee Grievance Form for Carolyn Jenkins dated 4/29/10
18 / NCA&T SPA Employee Grievance Form for Carolyn Jenkins dated 4/4/10
19 / Photos of the registrar’s office and cashier’s office
Admitted for Petitioner:
20 Screenshot of doit.ncat.edu
21 Screenshot of doit.ncat.edu/index.php?option=com_content&view=article&id=7&Iternid=12
WITNESSES
Called by Petitioner
Carolyn Jenkins
Called by Respondent
Lester Lugo
Kelly Meris
Debra Mayhand
Cynthia W. Graham
ISSUES
Whether NCA&T had just cause to discharge Petitioner?
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.
2. At the time of her discharge, Petitioner Carolyn S. Jenkins 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.
3. Respondent North Carolina Agricultural and Technical State University (NCA&T) is subject to Chapter 126 and was Petitioner’s employer.
4. Petitioner was employed by NCA&T for 12 years. By all accounts, Petitioner has been an excellent employee, having received “very good” and “outstanding” performance evaluations. At the time of her discharge on March 29, 2010, Petitioner was employed as the Graduation Clerk in NCA&T’s Registrar’s Office.
5. Petitioner’s job involved clearing students for graduation and doing grade changes as appropriate. Petitioner also had specialized training which was required in order to know how to change grades using the university’s Banner system. Tp. 25
6. Petitioner was assigned a personal computer that was password protected. Petitioner’s Banner account was solely for her use and she was not to share her Banner account information with anyone in the office including the student workers.
7. Employees with access to the university’s computerized records through Banner agreed that they would abide by the Computer and Network Usage policy. Although prior to coming to the Registrar’s Office, Petitioner specifically signed a form on July 25, 2006, attesting that she “would not perform an illegal or unauthorized activity that would cause harm directly or indirectly to the University network and/or computer technology”. She was not required to sign another such policy statement when she transferred to the Registrar’s Office because the policy remained the same for the entire University. Tp. 31; Resp. Ex. 8
8. On October 29, 2009, while working at the Registrar’s Office, Petitioner received an office wide email reminding employees of the importance of keeping their Banner accounts secure and warning them that a violation could result in disciplinary action. Tp. 15, 33, 80; Resp. Ex. 15
9. In spring 2010, Dr. Highsmith-Quick, an advisor for one of the sorority’s on campus, brought to the attention of the Registrar’s Office that the grades for Tiffany Jones in the Banner system did not correspond to the transcript Dr. Highsmith-Quick had received for Jones. At the time, Jones was a student who worked in the Registrar’s Office and was applying to a sorority. Tp. 16
10 After being informed of the grade irregularities, Lester Lugo, the Registrar at NCA&T, immediately began an investigation. Mr. Lugo contacted IT security and determined that grade changes had in fact been made using Petitioner’s Banner account. Tpp. 16-17
11. Mr. Lugo questioned Petitioner about the grade changes. Petitioner admitted that she changed one grade in the Banner system in order to see what grades Jones would need in order to have the 3.0 required to apply to the sorority. Initially Mr. Lugo indicated to Petitioner that he did not think that this was a serious infraction. Tpp. 18, 22
12. After speaking with Petitioner, Mr. Lugo initiated formal disciplinary proceedings. On March 3, 2010, Petitioner received a letter informing her that she was being placed on Investigatory Status with pay. Tpp. 19-20; Resp. Ex. 1
13. Debra Mayhand, an employee in NCA&T’s Registrar’s Office and Petitioner’s former co-worker, testified that in early March of 2010, Petitioner admitted to her that she changed two grades for Jones but claimed she only did so to see what Jones’ GPA would be with the changed grades. Later that week, Petitioner changed her story and told Ms. Mayhand that she only changed one grade. Tp. 90-91
14. Prior to this incident, Jones asked Ms. Mayhand to change her grades so she could see how her overall GPA would look. Ms. Mayhand refused because she knew changing the grades without going through the proper process would be a violation of university policy. Ms. Mayhand did not report this to any supervisor because she is often asked to change grades and assumed that others in the office were likewise solicited. Tpp. 87-89
15. Kelly Meris, the Assistant Registrar at NCA&T and Petitioner’s direct supervisor, testified that Petitioner admitted to her that she changed three or four grades for Jones to see what grades she would need to increase her GPA so that she would be able to apply to a sorority. Petitioner told Ms. Meris that she had immediately changed the grades back to the original grade; however, only one grade was changed back to the original grade on January 7, 2010. Tp. 76
16. After conducting an investigation, it was found that a total of nine grades were changed for Jones, and all of those changes were made under Petitioner’s Banner account. Tp. 17
17. The nine grades were changed under Petitioner’s Banner account on January 7, 2010. Only one grade was changed back to its original grade on January 7, 2010---the same day the grade was initially changed. The remaining eight grades were changed back four days later on January 11, 2010—also using Petitioner’s Banner account. Tpp. 20-22
18. Transcripts were requested at two separate occasions on January 7, 2010; one request for one copy by Carolyn Graham and a request for three copies by Petitioner. Petitioner denies that she requested a transcript for the student Jones. It is not known whether or not either of the transcripts printed had the incorrect grades on them.
19. Ms. Graham stated that Petitioner and Jones approached her work station and asked for the transcript, that she printed the transcript and gave it to the Petitioner, and that Petitioner and Jones then went to Petitioner’s office.
20. Petitioner contends that she only changed one grade and that Jones was responsible for all other changes. Jones would have had her own work space and computer. Jones would have been knowledgeable of the grades computer system and how to “negotiate” around the system. Jones had access to the Banner system in that working with transcripts was a part of her duties, but she did not have access to change grades which required a method of access different from the transcripts.
21. Petitioner contends that Jones would have been left unattended in Petitioner’s for approximately 30 minutes at a time and that was not uncommon. Petitioner also stated that her computer “goes to sleep” after 30 minutes when not in use. It is Petitioner’s duty to protect the computer access. Such unlimited access to Jones which would have of necessity occurred on both January 7 and January 11, 2010, is unreasonable at best and incredible at worse.
22. The University has a grade calculator on its website. Petitioner admits that she knew that the grade calculator existed but that she did not know how to use it. As a student Jones would have had access to the grade calculator as well.
23. Petitioner was notified of a pre-disciplinary conference by letter dated March 16, 2010. The pre-disciplinary conference was held on March 19, 2010. Petitioner attended and was given the opportunity to provide information about her conduct. Tpp. 33-35; Resp. Ex. 10
24. Petitioner was notified of a follow up pre-disciplinary conference by letter dated March 23, 2010. The follow up pre-disciplinary conference was held March 25. Petitioner was also present for this conference and was given the opportunity to provide any information she desired. Tpp. 33-35; Resp. Ex. 11
25. On March 29, 2010, Petitioner was terminated for unacceptable personal conduct in that she “altered the academic history of a currently enrolled student” in violation of University policy. The dismissal does not specify the number of times the history was altered. It also does not cite that Petitioner failed to protect the integrity of the computer system and safeguard its access from unauthorized use. Resp. Ex. 13
CONCLUSIONS OF LAW
1, To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.
2. The Office of Administrative Hearings has personal and subject matter jurisdiction over the just cause issue in this contested case pursuant to Chapter 126 and Chapter 150B of the North Carolina General Statutes.
3. NCA&T established just cause to discharge petitioner. Petitioner’s arguments to the contrary are without merit. Petitioner’s testimony was not credible. Petitioner admitted to changing grades for student Jones, but she changed her version of events several times when talking with other university employees. Even her version of events makes Petitioner responsible for the changed grades by allowing an unauthorized person access to the Banner system in order to change grades, which constituted a clear violation of policy. Her contentions that she was not aware of the policies concerning computer use and protection are not consistent with the evidence.
4. N.C. Gen. Stat. § 126-35(a) provides that “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” “‘Just cause’ is a legal basis, set forth by statute, for the termination of a State employee . . . “ Skinner v. N.C. Dept. of Correction, 154 N.C. App. 270, 280, 572 S.E.2d 184, 191 (2002).
5. Unacceptable Personal Conduct” is defined by 25 N.C.A.C. 1J.0614 (i) as “conduct for which no reasonable person should expect to receive a prior warning; . . . or conduct unbecoming a state employee that is detrimental to state service . . . “
6. The State Personnel Manual provides that before an employee can be discharged for unacceptable personal conduct the employee must have: “a current unresolved incident of unsatisfactory job performance . . . and a pre-disciplinary conference.” State Personnel Manual, section 7, page 9
7. Petitioner received notification of two separate pre-disciplinary conferences by letter dated March 16, 2010 and by letter dated March 23, 2010.
8. Petitioner attended both of the pre-disciplinary conference and was allowed an opportunity to respond and to provide information.
9. Ultimately, Mr. Lugo determined that Petitioner’s changing of any grade for any reason constituted a clear violation of the University’s Computer and Network Usage Policy, and that Petitioner should not continue in her employment at NC A&T.
10. Petitioner’s conduct, summarized in the discharge letter of March 29, 2010 detailed in the above Findings of Fact, constituted unacceptable personal conduct. Resp. Ex. 13
11. As a result, NCA&T had just cause for discharging Petitioner.
On the basis of the above Conclusions of Law, the undersigned issues the following:
DECISION
It is hereby ordered that NCA&T’s decision to discharge Petitioner 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 Service Center, Raleigh, N.C. 27699-6714, in accordance with N.C.G.S. § 150B-36(b).
NOTICE
The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to the 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 12th day of April 2011.
______
Donald W. Overby
Administrative Law Judge
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