STATE OF NORTH CAROLINA IN THE OFFICE OF

COUNTY OF WAKE ADMINISTRATIVE HEARINGS

00 OSP 0976

SUSAN H. COLE, )

Petitioner, )

)

-vs- )

) RECOMMENDED DECISION

N.C. DEPARTMENT OF )

TRANSPORTATION, DIVISION OF )

MOTOR VEHICLES, )

Respondent. )

This case was heard on December 13 & 14, 2000, in Raleigh, North Carolina, by Senior Administrative Law Judge Fred G. Morrison Jr.

APPEARANCES

Petitioner: Janet I. Pueschel

Counsel for Petitioner

PO Box 2725

Raleigh, NC 27602-2725

Respondent: Gwendolyn W. Burrell

Assistant Attorney General

Counsel for Respondent

NC Dept. of Justice

PO Box 629

Raleigh, NC 27602-0629

ISSUE

Whether Respondent discharged Petitioner without just cause and discriminated against Petitioner based upon her political affiliation.

WITNESSES

Susan H. Cole, Petitioner

Philip M. Snow, Petitioner

James Stewart, Petitioner

Vickey Fields, Petitioner

Deborah Strickland, Petitioner

Cathy Matthews, Petitioner

EXHIBITS

1. Application for Employment dated March 8, 1994.

2. Hearing Officer Position Description.

3. Petitioner’s Performance Management Work Plans (1994 - 2000).

4. Petitioner’s dismissal letter dated February 25, 2000.

5. Grievance dated March 10, 2000.

6. Devane letter to Petitioner dated June 8, 2000.

7. Driver License Hearing Officer Manual.

8. Computer printout to Strickland from Cole dated November 9, 1999.

9. Computer printouts for Frank Lord record.

10. Computer printouts for Elton Peele.

11. N.C. Driver License System Driver Event History Record of Frank Lord.

12. N.C. Driver License System Driver Event History Record of Elton Peele.

Hearing schedule for Susan Cole dated November 9, 2000.

14. Computer printout message from Susan Cole to Debbie Strickland dated

November 9, 1999.

15. North Carolina DMV Motor Vehicle Record of Frank Lord.

16. North Carolina Department of Transportation Disciplinary Action Policy and

Procedures Manual.

17. State Automated Driver License System Adjudication Hearing Officer User Guide.

18. State Automated Driver License System Adjudication Maintenance User Guide.

19. Memorandum regarding Investigatory Placement with Pay to Susan Cole from C.H. Matthews dated November 10, 1999.

20. Letter regarding personnel investigation to Susan Cole from C.H. Matthews dated December 7, 1999.

21. Letter regarding Pre-Disciplinary Conference to Susan Cole from C.H. Matthews dated December 7, 1999.

22. Letter regarding Pre-Disciplinary Conference to Susan Cole from C.H. Matthews dated December 10, 1999.

23. Letter regarding Pre-Disciplinary Conference to Susan Cole from C.H. Matthews dated January 5, 2000.

24. Memorandum regarding Pre-Disciplinary Conference to Susan Cole from C.H. Matthews dated February 9, 2000.

25. Letter regarding Dismissal for Unacceptable Personal Conduct to Susan Cole from C.H. Matthews dated February 25, 2000.

26. Computer printout showing time and date DMV computer records reflected deceased status of Frank Lord.

27. Transcript of administrative investigation of December 1, 1999.

Exhibits 1-10 were offered by Petitioner and admitted into evidence.

Exhibits 11-27 were offered by Respondent and admitted into evidence.

FINDINGS OF FACT

Just Cause Termination Claim

1. Petitioner, Ms. Susan Cole, was an employee of Respondent Department of Motor Vehicle (DMV). Petitioner began employment with Respondent in October 1988.

2. Petitioner’s initial position was abolished and her employment ended in November 1993 as a result of a “reduction in force.” Petitioner appealed this decision and was reinstated as an employee of the DMV on February 28, 1994, as a Field Hearing Officer (hereinafter “Hearing Officer(s)”) within the Driver’s License Section, Hearing and Review Branch. As a Hearing Officer, Petitioner was a permanent State employee subject to the provisions of the State Personnel Act.

3. Hearing Officers began using computers in November 1994 and in addition to computer training, they were issued User Guides with their training manual. This guide along with the training manual, contained instructions on scheduling appointments, scheduling travel time, and how to block off periods of time for personal reasons or to prevent the scheduling of appointments by others.

4. The training manuals do not address the issue of training using active records and marking record as deceased.

5. Hearing Officers were instructed in training classes that whatever is entered into the computer affects the official record because Hearing Officers are in “production,” and the only time when entering information into the database would not affect the true driving record is if a hearing officer was working in a “testing” mode.

6. The driver event history is part of the official record such that everything that is

entered and captured in the driver license or DMV’s database is part of the official record. Some of the components are printed on public documents and some are not. But it is all part of that database, whether on-line or through a batch process. In addition, other agencies have access to the DMV database such as Administrative Office of the Court, insurance companies, Vital Statistics, Social Security Administration, Department of Transportation, and other entities.

7. Any information that is not correct which is entered in the driving event history is misleading to other individuals and entities. Furthermore, it affects the database in multiple ways because it puts information in the database that does not need to be and it takes up valuable needed space in the electronic system.

8. As a Hearing Officer, Petitioner was primarily responsible for conducting various driver license hearings, conferences, interviews, and investigations as requested.

9. Petitioner received in-house and field training as a Hearing Officer with an experienced Hearing Officer upon her placement in the position. Petitioner also received computer training and various other training offered to Hearing Officers.

10. Petitioner’s office was located in the driver license office in Dunn, North Carolina, and she also conducted hearings in the driver license office located in Fayetteville, North Carolina.

11. Petitioner’s computer schedule automatically began at 8:30 a.m. Monday through Friday every week..

12. Petitioner held hearings in Fayetteville on some days. Petitioner testified that it took her forty-five (45) minutes to travel from Dunn to Fayetteville, which led her to conclude that her day should have started at 8:45 a.m. rather than 8:30 a.m. as set on the computer in order to allow her travel time.

13. During an In Service School for Hearing Officers in September 1999, several Hearing Officers informed Petitioner’s supervisor, Chief Hearing Officer Cathy Matthews, that they had observed conferences scheduled by Petitioner on her schedule for a driver by the name of Mr. Frank Lord. He was a former employee of DMV who died on November 2, 1989.

14. The manager of the Driver Assistant Branch, Debbie Register received a telephone call from a concerned Hearing Officer asking her to look at Petitioner’s schedule.

15. Ms. Register looked at Petitioner’s schedule and the record of Mr. Lord. She discovered that Mr. Lord was deceased.

16. Ms. Register approached Petitioner’s supervisor and inquired if she was aware that Petitioner was scheduling hearings for Mr. Lord, a deceased individual. Ms. Matthews informed her that she was aware of the matter.

17. To further investigate this matter regarding conferences scheduled for a deceased individual, Ms. Register discovered a conference scheduled by Petitioner for Mr. Lord on November 9, 1999, at 8:30 a.m. in the Fayetteville office. Ms. Register and Ms. Matthews visited the Fayetteville office to be present for this scheduled hearing.

18. Ms. Register and Ms. Matthews arrived at approximately 8:00 a.m. Petitioner was not there and did not arrive until approximately 8:40 a.m.

19. Ms. Register asked Petitioner if she had an 8:30 a.m. appointment. Petitioner told her that she did, but that the person had called and canceled the appointment. Ms. Register specifically asked Petitioner if that individual, Mr. Lord, wanted to reschedule. Petitioner said that he just called and cancelled his appointment.

20. She did not tell Ms. Register or Ms. Mathews that the appointment was scheduled so that she could look at his record to be sure it was intact or to check the integrity of the record.

21. On November 9, 1999, Ms. Register and Ms. Matthews sat through two hearings held by Petitioner before leaving. Subsequently, Ms. Register called Problem Resolution Officer Debbie Strickland, who deletes or corrects information erroneously entered into the computer system.

22. Ms. Register asked Ms. Strickland if she had received any telephone calls, e-mails or OA’s (computer messages) from the Petitioner. At that time Ms. Strickland had not heard from Petitioner. Ms. Register advised Ms. Strickland to contact her or Ms. Matthews if she received any messages from Petitioner. Ms. Strickland was further asked not to correct or fix any records at Petitioner’s request.

23. Petitioner later contacted Ms. Strickland at the computer help desk and instructed her to “clean up” the conferences and interviews scheduled on Mr. Lord’s record with the exception of the appointment scheduled for November 9, 1999, and the reschedule for January 2000. In this computer message, Petitioner referred to Ms. Strickland as a “life-saver.”

24. Upon returning to Raleigh, Ms. Register was informed by Ms. Strickland that she had received a computer message from Petitioner asking her to “clean up” Mr. Lord’s record.

25. Computer generated records indicated that Petitioner had scheduled appointments, conferences and/or interviews for Mr. Lord over thirty-five (35) times since 1997.

26. Ms. Register and Ms. Matthews met with Assistant Director of Driver License Addie Avery, Director of Driver License Mike Bryant, and informed them of the events that took place with respect to Petitioner.

27. Ms. Register was advised to place Petitioner on Investigatory Suspension With Pay. Ms. Register and Ms. Matthews met Petitioner at the Dunn office on November 10, 1999, at 4:00 p.m., and advised her that she was being placed on Investigatory Placement With Pay until the Division had time to investigate her actions further.

28. Upon further investigation and review of Petitioner’s schedule, it was discovered that Petitioner had scheduled three (3) interviews for an individual by the name of Mr. Elton Ray Peele. Mr. Peele had been a former Commissioner of the DMV and had an active driver license.

29. An investigation conference was scheduled on December 1, 1999. Petitioner was notified and attended the conference. Also present were Mr. Bryant, Ms. Avery, Ms. Register and Ms. Matthews.

30. At the conference on December 1, 1999, although Petitioner denied entering what she knew to be false and misleading drive license information, she said she scheduled the conferences and appointments for Mr. Lord to give herself a fifteen-minute block of time in the mornings because she didn’t have break times.

31. Petitioner later testified that she scheduled the first appointment for Mr. Lord on May 22, 1997, to mark him deceased. She said that the other thirty (30) some entries were made to check the integrity of his driving record periodically, and to give herself a fifteen-minute block of time.

32. Contrary to Petitioner’s statement that she entered deceased on Mr. Lord’s record on May 22, 1997, the driver event history of the DMV File Aid Screen revealed that Mr. Lord was deceased and had been entered into the old DMV computer system prior to November 24, 1994. Keypunch operators or data entry operators would have entered this information.

33. It is standard procedure for Hearing Officers to receive some type of documentation initially notifying them that a person is deceased. Since this information must be investigated by a hearings officer before it is entered into the DMV database; the officer will schedule time for it.

34. The investigation of a deceased individual, however, has become a “non-task” for

Hearing Officers, which means that the hearing officers have access to do them, but they should not be doing them anymore.

35. It is considered falsifying records to enter an appointment on the record in order to do an investigation for someone who is now deceased, if there is no investigation or interview that will really be held.

36. Since Mr. Lord was deceased, there was no legitimate reason for Petitioner to schedule any future conferences or appointments with or for him.

37. When questioned about Mr. Peele’s record at the conference, Petitioner stated that she might have been scheduling appointments under the same kind of circumstances, but that she really was not sure.

38. Petitioner testified at the hearing, however, that she was “testing” when she scheduled the three (3) appointments for Mr. Peele. She stated that she used his driver license because his driver license number is “one” and it was easier to use one digit instead of seven.

39. In the past, in order to get to a point where you could make selections one would have to enter a driver license number such as “one,” “two,” and/or etc. just to get to the selection where a menu choice could be entered, but not to enter anything onto the record.

40. When Hearing Officers enter information into the computer it goes to the mainframe and on to Department (DMV) records. These are no “dummy records” in the office to use as a way of “testing” because everything is basically “live.”

41. The entries to Mr. Peele’s driving record adversely affected him in that he was almost denied a medical review interview when the DMV personnel saw a previous interview scheduled on his driving record.

42. There was no legitimate reason for Petitioner to schedule any appointments, conferences, and/or interviews for Mr. Peele, and a review of the driving record for Mr. Peele revealed that there was no reason that he would have contacted Petitioner to schedule any type of hearing.

44. Hearing schedules for the previous twelve months were run on all Hearing Officers. Any hearings that were scheduled or rescheduled for a driver four (4) or more times were pulled and reviewed.

45. Hearings that had been scheduled by other hearing officers, which had been rescheduled four (4) or more times, were found to have been rescheduled for legitimate reasons.

46. In addition to obtaining hearing schedules of all Hearing Officers, each Hearing Officer was contacted by telephone and asked a series of questions pertaining to whether or not any hearings had ever been rescheduled without a legitimate reason.

47. The training manual contained instructions on scheduling appointments, travel time, and how to block off periods of time for personal reasons or to prevent the scheduling of appointments. Nevertheless, the Petitioner scheduled dummy appointments, conferences, and/or interviews in order to block off periods of time for personal reasons in clear violation of the Respondent’s rules regarding these matters.

48. The departmental investigation of all hearing officers revealed that there were no others who scheduled or rescheduled hearings for deceased individuals.