STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

05 OSP 0427

COUNTY OF DURHAM

Peggy ANDERSON, )

)

Petitioner, )

)

v. ) DECISION

)

WHITAKER SCHOOL, )

NC DHHS, )

)

Respondent. )

This contested case was heard before Beecher R. Gray, Administrative Law Judge, in Raleigh, North Carolina on September 26 and 27, 2005.

APPEARANCES

Petitioner: Michael C. Byrne

Law Offices of Michael C. Byrne

5 West Hargett Street, Suite 310

Raleigh, NC 27601

Respondent: Angel E. Gray

Assistant Attorney General

John Umstead Hospital

1003 12th Street

Butner, NC 27509

ISSUE

Whether Respondent violated N.C.G.S. 126-7.1 by failing to grant Petitioner, a career state employee, promotional priority consideration.


APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 126-7.1

N.C. Gen. Stat. § 126-14.3

N.C. Gen. Stat. § 126-34.1

N.C. Gen. Stat. § 126-36.2

N.C. Gen. Stat. §150B-23

25 N.C.A.C. 1H.0606 (2005)

25 N.C.A.C. 1H.801 (2005)

EXHIBITS

For Petitioner: 1-17

For Respondent: 1-31

FINDINGS OF FACT

In making the Findings of Fact, the undersigned has weighed all the evidence and assessed the credibility of the witnesses. The undersigned has taken into account factors for judging credibility of witnesses, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have. Further, the undersigned has carefully considered 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. After careful consideration of the sworn witness testimony presented at the hearing, the documents and exhibits admitted into evidence, and the entire record in this proceeding, the undersigned makes the following FINDINGS OF FACT:

1. Whitaker School (“Whitaker School”) is a state facility located in Butner, North Carolina, serving primarily behaviorally and emotionally handicapped (“BEH”) adolescents ages 13-17 who have one or more secondarily handicapping conditions. Whitaker School is operated by Respondent North Carolina Department of Health and Human Services (“Respondent”).

2. Whitaker School is a locked facility and, at the relevant time, contained 36 beds divided into four nine-student “lodges,” the students are under 24-hour supervision.

3. Whitaker School is the only facility operated by the State of North Carolina that uses the “re-education” model of service to BEH adolescents; Durham’s Wright School used the “re-education” model of service to a younger population. The “re-education” model is a distinct and specific model of resident service derived from the work of Nicholas Hobbs. Respondent Exhibit 5.

4. Petitioner Peggy Anderson (“Petitioner”), an African American female, was employed as a Youth Program Administrator III (“YPA III”) at Whitaker School, serving also as Third Shift Supervisor, in December 2004.

5. As of December 2004, Petitioner had been employed at Whitaker School for approximately ten (10) years, serving as a supervisor for nine (9) years. As Third Shift Supervisor, Petitioner was responsible for supervising all four student “lodges” at Whitaker School and between 15 and 18 YPA personnel. Petitioner also had served in a 24-hour on-call capacity during her time at Whitaker School.

6. Additionally, Petitioner’s experience included four years on the management team at Whitaker School.

7. Petitioner’s annual performance reviews, or performance management plans, consistently received an overall rating of “Outstanding” during her employment at Whitaker School.

8.  Prior to working at Whitaker School, Petitioner had several years of experience working with BEH students in the Cumberland County, North Carolina, school system. Respondent’s personnel records, appearing on OSP Form PD-105, credit her with “9 years and 6 months [sic] experience with mentally/emotionally handicapped clients” as of November 1998, six years before she applied for the MHUD position. Petitioner’s Exhibit 6.

9.  Adding that nine years and six months of experience as of 1998 to Petitioner’s experience from 1998 to late 2004, all of which was at Whitaker School, Petitioner had, as of late 2004, a combined direct experience with BEH children of approximately sixteen (16) years, four of which were on the Whitaker School management team and nine of which were in a supervisor’s position at Whitaker School. Petitioner’s combined state service as of late 2004 was approximately twenty (20) years. She does not have a college degree but undertook college study at the community college level and Fayetteville State University.

10.  In December 2004, Petitioner applied for a promotion to the position of Mental Health Unit Director I (“MHUD”) at Whitaker School (Petitioner/Respondent Exhibit 7).

11.  The MHUD position, pay grade 68, represented a promotion for Petitioner, who was at pay grade 65.

12.  Respondent’s human resources office at John Umstead Hospital (“John Umstead”) in Butner, North Carolina, which serves the human resources function for Whitaker School, rated Petitioner among the “most qualified applicants” for the MHUD position.

13.  The MHUD position, according to the job vacancy posting (Petitioner/Respondent Exhibit 6) states, among other knowledge, skills, and abilities, that the successful applicant “Must have experience and knowledge of working with BEH adolescents and the ability to plan, organize, and supervise comprehensive treatment services … [and] requires thorough understanding of the principles and practices of a residential treatment program... prefer experience in behavioral management preferably with BEH, BED and emotionally disturbed youth that have the potential to be physically or verbally assertive and aggressive.”

14.  The MHUD position job vacancy posting lists as “Training and Experience” the following: “Master’s degree in social work, nursing, education, psychology, rehabilitation, occupational therapy, physical therapy, or related degree and one year of administrative experience in a psychiatric unit program or professional level treatment program with the emotionally disturbed, or a bachelor’s degree as above and three years of the above experience, or an equivalent combination of training and experience.”

15.  Among the other applicants for the MHUD position was a non-state employee, Wanda Williams-Pettiford (“Pettiford”). Ms. Pettiford, an African American female, had an undergraduate degree in Criminal Justice and Sociology.

16.  Ms. Pettiford, at the time she applied for the position, was employed as an independent sales person for Craftmatic Adjustable Beds. (Petitioner/Respondent Exhibit 8) Prior to that job, Ms. Pettiford worked as an independent insurance agent.

17.  Prior to beginning work as an independent insurance agent, Ms. Pettiford worked at the North Carolina Methodist Home for Children between December 2000 and June 2003. At that position, Ms. Pettiford implemented a Duke Endowment Grant to increase the number of foster homes in a six county area. Ms. Pettiford, as her application states, “recruited foster families and support systems using a variety of mediums; trained, licensed [assisted in licensing] and supervised foster families using the state-mandated training; developed and trained in-service skilled based training targeting the needs and concerns of the parents; developed and coordinated community partnerships.” (Exhibit 8) Ms. Pettiford worked primarily out of a home office in Person County; the North Carolina Methodist Home for Children is located in Raleigh. Ms. Pettiford also did work at the Raleigh location.

18.  Prior to the position above, Ms. Pettiford worked for the North Carolina Administrative Office of the Courts’ Guardian Ad Litem program. Her application states that she “Advocated for abused, neglected, and dependent children within the judicial system in a three county jurisdiction; supervised a paid staff of three that included a satellite office; recruited, trained, and supervised community volunteers to serve as Guardian Ad Litems; identified and coordinated community resources.”

19.  Ms. Pettiford’s years of experience at the North Carolina Guardian Ad Litem program were the subject of disputed testimony. Ms. Pettiford claimed seven years of full-time and 9 months of part-time experience in that job starting in March 1993. However, state service records (Petitioner’s Exhibit 3) placed into evidence showed that Ms. Pettiford began work with that agency part-time for 20 hours per week in June 1993, and worked additionally on a part-time basis of 30 hours per week from September 1993 through February 1995. She then began full-time, 40-hour weeks in February 1995 through December 2000. This, according to the state service records, adds up to five years and ten months of full-time experience rather than the seven years claimed by Ms. Pettiford on her application.

20.  Mary LaForgia, a Personnel Analyst in John Umstead HR, examined Ms. Pettiford’s application for the minimum qualifications and found that she met the minimum qualifications. Personnel Analyst LaForgia testified that she previously had corrected the start date of Ms. Pettiford’s employment with the North Carolina Guardian Ad Litem Program from March 1993 to June 1993. Personnel Analyst LaForgia then started that according to the state records, which she had no reason to believe were inaccurate, Ms. Pettiford’s stated qualifying experience on her application regarding this position was overstated by approximately one full year. Personnel Analyst LaForgia testified on cross examination that in some circumstances 30 hours per week was regarded as full-time, but that she had not regarded Ms. Pettiford’s 30 hours of part-time work as full-time employment.

21.  If all of the qualifying experience credited to Ms. Pettiford by Respondent is valid, Ms. Pettiford had two years and seven months of full-time experience at North Carolina Methodist Home for Children and seven years of full-time experience at the North Carolina Guardian Ad Litem Program, for a total of nine (9) years, seven months. If the state service record is used, Ms. Pettiford had approximately eight (8) years, seven months of full-time experience credited to her by Respondent, none of which was at Whitaker School or any DHHS facility.

22.  Two other HR personnel from John Umstead, Deborah Crumpton and Deborah Johnson, testified that they had screened the applications of both Petitioner and Ms. Pettiford and found that both met the minimum qualifications. However, these witnesses, as well as Ms. LaForgia, testified that nowhere in Ms. Pettiford’s application was there any reference to working with BEH children. All the HR personnel testified that they had concluded Ms. Pettiford was qualified, in terms of experience, on the basis of equivalencies; one, Deborah Crumpton, testified that she credited Ms. Pettiford’s experience as applicable to the MHUD position because she “worked with children.”

23.  When asked whether Petitioner’s application contained the phrase “BEH,” or any references to working with emotionally disturbed children in any capacity, all the HR personnel (and in fact all witnesses asked about this issue) testified that it did not, and that they had “inferred” Petitioner’s experience with BEH children as they had with Ms. Pettiford’s. However, these witnesses, in response to questions from Petitioner’s counsel, stated that they had actual knowledge of the fact that Petitioner’s work at Whitaker School, and therefore they did not need to “infer” her experience with BEH populations as they had with Ms. Pettiford.[1]

24.  The HR personnel all testified that their role was limited to screening minimum qualifications and that they were not involved in the hiring decision. With respect to Petitioner’s lack of a college degree, all testified that they had used Petitioner’s years of experience and partial college study as an equivalency.[2] With respect to Ms. Pettiford’s degree, which was not among the degree’s listed in the job vacancy as applicable, the HR personnel testified that Ms. Pettiford’s degree in criminal justice was a “related” degree under OSP policy.

25.  Following establishment of the most qualified applicant pool for the MHUD position, Respondent convened a panel of Whitaker School personnel (“the interview panel”) to conduct interviews. This panel was led by Respondent’s employee Phyllis Timberlake (“Timberlake”), who was Petitioner’s supervisor and works at Whitaker School in the position of Mental Health Unit Director II.

26.  Each member of the interview panel testified for Respondent, and each testified that they rated Ms. Pettiford’s responses to a list of interview questions, which were the same for each candidate, higher than Petitioner’s responses, and that they considered Ms. Pettiford the best candidate for the MHUD position. All but one member of the interview panel gave Ms. Pettiford the highest score in answering the interview questions.

27.  The interview panel thought Ms. Pettiford’s interview responses were superior to Petitioner’s because Petitioner’s responses, in these or similar words, “lacked detail.” Each confirmed, however, that they did not share this conclusion with Petitioner at the time of the interview, nor did any member of the panel ask Petitioner to provide additional detail in her answers.

28.  In response to questions on cross-examination, the members of the interview panel stated that there was little or no discussion, when concluding which candidate was best qualified for the MHUD position of the relevant job applications, with their statements of the relative experience of Petitioner and Ms. Pettiford, compared with the vacancy posting. The interview panel also testified that they understood Petitioner to have about ten years of relevant experience, and that they had not seen the previously referenced PD-105 form crediting Petitioner with nine years, six months of full-time experience as of late 1998.

29.  Several members of the interview panel testified that one of Ms. Pettiford’s strengths was work with community entities with whom Whitaker School had dealings. However, Guy Baker (“Baker”), a member of the interview panel who serves as a MHUD at Whitaker School, testified that social workers at Whitaker School were the main contact with such community entities. Baker testified further that he, at the time Respondent appointed him (without conducting interviews) to the MHUD position, was a YPA III and a shift supervisor – the same supervisory position held by Petitioner. Finally, Baker testified that as a MHUD, he had responsibility for one “lodge” of nine students at Whitaker School, and confirmed that Petitioner, serving as Third Shift supervisor, had responsibility for all four separate “lodges” at Whitaker School during her shift.

30.  Ms. Pettiford, with respect to her past job-related experience, and her experience at North Carolina Methodist Home for Children and the North Carolina Guardian Ad Litem Program, testified:

31.  That she never had worked in an institutional facility prior to being hired at Whitaker School;

32.  That she never had worked in state facility prior to being hired at Whitaker School;