STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 07 OSP 0317
Divina P ShieldsPetitioner
vs.
North Carolina State University
Respondent / )
))
)))) / DECISION
This contested case was heard before Administrative Law Judge Melissa Owens Lassiter on January 16 and 18, 2008, in Raleigh, North Carolina. On March 31, 2008, Petitioner filed her proposed Decision and accompanying Brief. Respondent filed its proposed Decision and Closing Argument on April 1, 2008. On April 4, 2008, Respondent filed a Motion to Strike portions of Petitioner’s Brief and Exhibit 1 attached thereto. On April 9, 2008, Petitioner filed a Response to Respondent’s Motion to Strike. The undersigned hereby DENIES the Motion pursuant to Rule 201 of N.C. Rules of Evidence.
APPEARANCES
For Petitioner: Janet I. Pueschel
Pueschel Law Firm
308 Millbrook Rd., Suite D-100
Raleigh, N.C. 27609
For Respondent: Katherine A. Murphy
Assistant Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, N.C. 27602
EXHIBITS ADMITTED INTO EVIDENCE
For Petitioner:
Exhibit No. / Date / Document1 / 06/07/06 / SPA Work Plan and Appraisal
2 / 08/21/06 / Dismissal Memorandum
3 / 01/29/07 / Letter from Charles Leffler to Petitioner
4 / 08/01/06 / Employment eligibility verification (Qiao)
5 / 08/02/06 / Employment eligibility verification (Qiao)
6 / 08/02/06 / NCSU hiring credential checklist (Qiao)
7 / 05/19/06 / Email from H.T. Banks to Kimberly Morton
8 / 08/23/06 / Email from Ralph Smith to Chastity Buehring
9 / 08/22/06 / Email from Ralph Smith to H.T. Banks
10 / 06/22/06 / Email from H.T. Banks to Divina Shields
11 / 06/29/06 / Email from H.T. Banks to Divina Shields
12 / 08/28/06 - 09/13/06 / Emails from H.T. Banks to Sandra Matus
13 / 08/16/06 / Email from H.T. Banks to Chastity Buehring
14 / 08/19/06 / Email between Chastity Buehring and H.T. Banks
15 / Expense and Travel Reimbursement forms
16 / 08/19/06 / Email from Chastity Buehring to Divina Shields
For Respondent:
Exhibit No. / Date / Document1 / 08/17/06 / Letter from H.T. Banks to Divina Shields
2 / 08/18/06 / Response to Notice of Investigatory Status
3 / 08/21/06 / Letter from H.T. Banks to Divina Shields
4 / 09/21/06 / Letter from H.T. Banks to Divina Shields
5 / 10/23/06 / Letter from Daniel Solomon to Divina Shields
6 / 01/20/07 / Letter from Charles Leffler to Divina Shields
7 / Typed List
8 / Expense Reimbursement (Luke)
9 / Expense Reimbursement (Kepler)
10 / Expense Reimbursement (Nguyen)
11 / Expense Reimbursement (Banks)
12 / Expense Reimbursement (Banks)
13 / Travel Reimbursement (Shearer)
14 / Travel Reimbursement (Bokil)
15 / Travel Reimbursement (Banks)
16 / Travel Reimbursement (Gibson)
17 / Travel Reimbursement (Banks)
18 / Travel Reimbursement (Banks)
19 / Travel Reimbursement (Smith)
20 / Hiring Forms (Qiao)
21 / 05/31/06 / Buehring/Shields email
22 / 06/06/06 / Buehring/Shields email
23 / 06/27/06 / Buehring/Shields email
24 / 08/07/06 / Buehring/Shields email
25 / 08/08/06 / Buehring/Shields email
26 / 08/08/06 / Buehring/Shields email
27 / 08/08/06 / Buehring/Shields email
28 / 08/15/06 - 08/16/06 / Buehring/Shields email
29 / 08/22/06 / Smith/Banks email
30 / 08/23/06 / Smith/Banks/Buehring email
31 / 08/25/06 / May/Denning email
32 / 08/25/06 / Smith/May email
33 / 08/29/06 / Denning/Qiao/Morrison email
34 / 09/11/06 / Denning/Aitken email
WITNESSES
For Petitioner: Divina P. Shields
For Respondent: H. Thomas Banks, Lesa Denning, Ralph Smith
ISSUE
Whether Respondent had just cause to dismiss Petitioner from employment as an Administrative Assistant I for grossly inefficient job performance in violation of N.C. Gen. Stat. § 126-35?
FINDINGS OF FACT
Procedural Background
1. On August 21 2006, Respondent dismissed Petitioner from employment as an Administrative Assistant for grossly inefficient job performance. (Resp. Exh. 3) Petitioner appealed this decision through Respondent’s internal grievance process. (Resp. Exhs 1, 3, 4, 5).
2. On January 29, 2007, Respondent’s Vice Chancellor for Finance and Business, Charles D. Leffler, notified Petitioner that he was upholding the grievance review panel’s recommendations to dismiss Petitioner from employment. Mr. Leffler informed Petitioner that the grievance panel also recommended that the word “forgery” in the dismissal letter be changed to “potential for forgery,” and that Leffler was forwarding that recommendation to the Dean of Respondent.
3. On March 2, 2007, Petitioner filed a contested case petition with the Office of Administrative Hearings alleging that Respondent failed to act as required by law, failed to use proper procedure, and acted arbitrarily and capriciously by discharging her from employment without just cause. Specifically, Petitioner alleged that she did not commit forgery while performing her job duties, and was not guilty of inefficient job performance let alone grossly inefficient job performance. She contended that Respondent dismissed her based on “fabrications related to her job performance for which she never received any prior warnings.” (Petition, p 2)
Adjudicated Facts
4. 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.
5. Petitioner was a permanent State employee subject to Chapter 126 of the General Statutes of North Carolina (the State Personnel Act) as she had been employed by Respondent since May 1, 2001. From April 24, 2006 until August 21, 2006, Petitioner was employed as an Administrative Assistant (“AA”) at Respondent’s Center for Research in Scientific Computation (“CRSC”). (T. Vol. I, p. 41; Resp. Exh. 3)
6. The CRSC is a research center administered by Respondent that focuses on implementing research projects, supporting students and post-doctoral students, and recruiting visiting faculty members to Respondent. (T. Vol. I, pp. 15-16)
7. The CRSC’s budget is usually between $2.5 to $3 million per year. Most of the money for the CRSC’s budget is raised through government contracts and grants. Only about $100,000 of the CRSC’s budget comes from money from the State of North Carolina. These State funds are used to pay for overhead and the salaries of the Administrative Assistant, the Program Assistant, a part-time computer person and a part-time student. (T. Vol. I, pp. 16-17)
8. The CRSC raises money from various federal agencies, including the Air Force Office of Scientific Research (“AFOSR”). (T. Vol. I, p. 17) The federal funding from the AFOSR is “the lifeblood” of the CRSC. (T. Vol. I, p. 19)
9. H. Thomas Banks (“Banks”) is employed by Respondent as a Professor of Mathematics and Director of the CRSC. (T. Vol. I, p. 14)
10. Ralph Smith (“Smith”) is employed by Respondent as a Professor of Mathematics and Associate Director of the CRSC. (T. Vol. I, p. 285)
11. At all times relevant to this case, Banks was Petitioner’s supervisor. (T. Vol. I, p. 200
12. As Director and Associate Director of the CRSC, Banks and Smith traveled extensively worldwide to maintain the research prestige of the CRSC. As a result, the Administrative Assistant served as the “face of the center to the outside world.” (T. Vol. I, pp. 23-24, 286). In addition, the Administrative Assistant was the only full-time staff position assigned to the CRSC who was actually present in the CRSC on a daily basis. (T. Vol. I, pp. 26-27, 286)
13. Since the Associate Director and Director were traveling, the majority of the work between the Administrative Assistant and the Directors was conducted by telephone. Given the circumstances surrounding the position, Mr. Banks felt it was important that the Administrative Assistant be someone whom he could trust. (T. Vol. I, p. 28)
14. When Director Banks and the interview committee interviewed Petitioner for the Administrative Assistant job, Banks described the duties and hours to Petitioner, explained that it was a demanding and difficult job, and stressed the need for being careful and honest due to the possibility of financial audits. (T. Vol. I, pp. 34-36) Banks asked each applicant about their experience with the specific duties he described, and if that applicant thought she could perform those duties.
15. Petitioner had an excellent interview with the interview committee. During the interview, the committee asked Petitioner about all the job requirements. Petitioner advised the committee that she knew how to do all the jobs relevant to the position such as the payroll and Human Resources systems. Petitioner also listed on her job application that she had Human Resources training and payroll training. Banks hired Petitioner for the Administrative Assistant position based on Petitioner’s representations that she could do all aspects of the job. (T. Vol. I, pp. 40-41, 193)
16. Petitioner’s work directives were written in a copy of the work plan which was also used as an evaluation. All other work directives were given to Petitioner orally.
Banks advised Petitioner to take as much training as she could by enrolling in courses.
17. Banks was initially satisfied with Petitioner’s job performance. On June 7, 2006, Banks gave Petitioner a written evaluation of her job performance, noting that “to date performance has been exemplary.”
18. In late June and early July of 2006, Banks was traveling in Europe, and asked Petitioner draft a budget and e-mail it to him. Banks was dissatisfied with Petitioner’s preparation of that budget. When Banks spoke with Ralph Smith during that same time, Smith informed Banks that there had been some problems with appointments that Petitioner had done, and that some people had not been paid properly. (T. Vol. I, p. 43)
19. Specifically, Semyon Tsynkov (“Tsynkov”), a professor in the Mathematics Department, had informed Smith that one of the students, Huydar Quasimov, had not been paid properly. In addition, Smith learned that one of his own students, Jon Ernstberger, had not been paid properly. Whitney LaBarbara, the part-time student assistant in the CRSC, had also not been paid properly. The problem in payment of Tsynkov’s student turned into a disagreement between Petitioner and Tsynkov. (T. Vol. I, pp. 43-44, 286-88, 300)
20. In late May 2006, Banks gave Petitioner limited authorization to sign travel documents for him while he was traveling. Specifically, Banks authorized Petitioner to sign his name with her initials on certain travel reimbursements for students who would attend a workshop. (Pet. Exh. 2) In June 2006, Banks authorized Petitioner, via an e-mail, to execute an offer letter to a post doctoral fellow student, and sign Banks’ name with her initials. They had to redraft the offer letter because they had to change the post doctoral student’s appointment date. Banks also most likely authorized Petitioner to sign his name with her initials to travel reimbursements submitted to Banks by math professor Ian Tran. (T. Vol. I, pp. 44-51).
21. While traveling in Europe, Banks learned that Petitioner had signed documents that she was not authorized to sign. (T. Vol. I, pp. 44-51, 53).
22. While Petitioner was employed as the Administrative Assistant at the CRSC, Lesa Denning (“Denning”) served as the Program Assistant in the CRSC. (T. Vol. I, pp. 177-78) As Program Assistant, Denning prepared invoices for people needing reimbursements from grants in the CRSC. Denning’s office was located in another part of Respondent’s campus. After preparing the invoices and attaching supporting receipts, Denning sent the documentation to Petitioner for Petitioner to obtain the required approval. (T. Vol. I, pp. 194-95)
23. During the first week of June 2006, Denning sent Petitioner a batch of travel and expense reimbursement forms. (T. Vol. II, pp. 379-89; Pet. Exh. 15) Petitioner signed some of these forms with her own name. The college-level approvers returned these documents to the CRSC for being improperly signed. For example, Petitioner signed her name approving an expense reimbursement form incurred by Banks. (Resp. Exh. 12) Only Dean Solomen could approve a reimbursement to Banks. (T. Vol. I, pp. 57-58, 193-97) Banks never authorized Petitioner to approve and sign this form, because he himself did not have such authority. Petitioner also signed a travel reimbursement form as the approver for Banks. (Resp. Exh. 15) Banks never gave Petitioner authority to sign this form, because he himself did not have such authority. (T. Vol. I, pp. 58-59)
24. Denning saw these forms when they were returned, and recognized that that Petitioner was not authorized to sign the forms. (T. Vol. I, pp. 194-200; Resp. Exh. 8, 9, 11,12.) Denning sent the forms to Petitioner to get the proper signatures. (T. Vol. I, pp. 198-206) Afterwards, Petitioner began signing Banks’ name with her initials. (T. Vol. II, p. 385)
25. Around mid-July 2006, Banks returned home early from his trip so he could investigate negative allegations from staff about Petitioner’s job performance. He spoke with Smith, Denning, and the student assistant in the CRSC. (T. Vol. I, pp. 51-52)
26. On July 18, 2006, Banks met with Ralph Smith and Petitioner. (T. Vol. I, p. 288; T. Vol. II, pp. 389-90) Banks’ purpose for this meeting was to talk with Petitioner about the problems to help her improve her job performance. Banks did not think formal discipline was necessary at that time. (T. Vol. I, pp. 54, 61-62) Therefore, he did not consider the meeting to be disciplinary in nature, but guidance to Petitioner regarding her work performance.