NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
GUILFORD COUNTY 01 OSP 0229
C. W. McADAMS )
Petitioner, )
)
vs. ) DECISION
)
NORTH CAROLINA DIVISION )
OF MOTOR VEHICLES, )
Respondent. )
This contested case was heard before James L. Conner II, Administrative Law Judge, on May 14, 15, 16 and June 10 & 11, 2002 at the Office of Administrative Hearings in Raleigh, North Carolina. Respondent filed its Proposed Recommended Decision on 3 July 2002 and Petitioner filed his Proposed Findings of Facts and Conclusions of Law on 12 July 2002.
APPEARANCES
For Petitioner: Alan McSurely, Esq.
P. O. Box 1290
Chapel Hill, NC 27514
For Respondent: Tracy Curtner, Esq.
Assistant Attorney General
NC Department of Justice
P.O. Box 629
Raleigh, NC 27602-629
Issues:
1. Did Respondent discriminate against Petitioner because of his race when it failed to promote him to the vacant District Supervisor position in August 2000?
2. Did Respondent discriminate against Petitioner because of his handicap when it failed to promote him to the vacant District Supervisor position in August 2000?
3. Did Respondent discriminate against Petitioner because he was a Vietnam Veteran when it failed to promote him to the vacant District Supervisor position in August 2000?
4. Did Respondent retaliate against Petitioner because of his past objections to race discrimination in the DMV when it failed to promote him to the vacant District Supervisor position in August 2000?
FINDINGS OF FACTS
1. Petitioner is a career State employee with the Division of Motor Vehicles (DMV) Enforcement Section, as defined in N.C. Gen. Stat. 126-1.1. Petitioner is African American.
2. On 24 May 2000 Petitioner applied for a vacant District Supervisor position 73809. A white officer, Steve Hall, applied for the same position.
Education, Experience, and Training Qualifications
3. The District Supervisor Position 73809 Posting stated that the qualifications for this position are: “Graduation from a four year college or university with a criminal justice or related degree and four years of criminal investigative experience as a law enforcement officer to include supervisory and or managerial experience; or an equivalent combination of training and experience.” P. Exh. 2.
4. The vacancy posting also listed the following “Necessary special qualification – certification as a law enforcement officer in accordance with the provisions of the North Carolina Criminal Justice Training Standards Commission.” P.Exh. 2 (emphasis added).
5. At the time of Petitioner’s application, he was a Vietnam War Veteran, having served in Vietnam in l968 and l969. He was honorably discharged with a 40% medical disability.
6. Petitioner’s educational level at the time of his application included a B.A. in Criminal Justice from Shaw University in l985.
7. His experience included serving in the United States Air Force from l967 to l971 where he was promoted to Sergeant and served in Vietnam; over 20 years in the U.S. Army Reserves at the rank of Sergeant First Class from l971 to l993; two years with the Asheville Police Department from 1971 to 1973; serving as one of the first African American troopers in the State Highway Patrol, serving from 6/73 to 11/79; serving as an investigator for the Buncombe County Social Services Department from 9/83 to 8/85 and then serving in several different capacities in the DMV from 9/85 through June of 2000 when the promotion occurred.
8. Depending on whether his four years in the Air Force were counted as job-related experience, Petitioner had accumulated almost 29 years (with Air Force experience) or 25 years (without AF experience) in job related experience.
9. Petitioner had received an Advanced Law Enforcement Certificate.
10. Petitioner submitted a complete application including a listing of every training program and seminar he had participated in or attended in the last five years as well as documentation for certification from these courses as the called for by the application. Petitioner had at least 53 training courses listed that were more than eight hours in length.
11. Petitioner’s nearly 20 years in the Army Reserve included many training opportunities and courses. He was the legal NCO and advised his Commanders on the application of the Uniform Code of Military Justice. He had certificates for training in U.S. Army Schools in such courses as Law for Legal Clerks, Introduction to Administrative and Civil Law and Military Legal Bibliography, Military Criminal Law for Paralegals, Staff Judge Advocate Operations, Advanced NCO Leadership School, Legal Clerks School, Unit Manning Reports, and Record Keeping and Military Personnel Records.
12. Mr. Hall did not have a college education. Mr. Hall’s educational level at the time of his application was that he had graduated from high school in l971. Hall’s job application states that he attended Piedmont Bible College for one year, but did not list any course credits received during that time. P.Exh. 3.
13. Mr. Hall’s experience included unloading milk trucks after high school until 1976 to 1978, when he was employed by DMV. He has continued with DMV until the present. He has no experience with any other law enforcement agency.
14. Mr. Hall submitted one training certificate with his application, an “Effective Interviewing” course he had taken on 10 May 2000. Since he failed to provide evidence of his training, Maj. Charles Carden, the Chair of the interview panel, obtained a DMV printout showing courses Mr. Hall had taken. He also obtained one for Petitioner.
15. Mr. Hall had no law enforcement certificates. See P. Exh. 3.
16. At the time of his applying for this position, Mr. Hall had been serving in the same position in an “acting capacity.”
17. He had been placed in this position by Maj. Mike Sizemore, who was serving in an “acting capacity” as a Lt. Colonel in the Headquarters, taking care of “personnel matters” for the Division.
18. Maj. Sizemore, who is white, selected a panel to interview Petitioner, Mr. Hall, and a third applicant. The Panel included the panel Chair, Maj. Carden, (White) Capt. David Robinson (White) and Capt. J. F. Jones (White), and Capt. Pigford and Capt. Zeigler, both African American.
19. On the morning of 26 June 2000, Maj. Carden convened the five panel members. Two panel members (Capts. Ziegler and Pigford) testified that the panel was convened in the morning and that points were then awarded to all three applicants for position 73809 in regard to their education, experience, training and law enforcement certificates.
20. No panel member who testified (including Carden) knew DMV’s policy governing the interview process or the scoring criteria.
21. Though the Panel awarded points as a group, Major Carden ran the procedure. Major Carden was the only one on the panel who had each candidate’s entire application package in front of him, and he was the only one who had each candidate’s list of training courses in front of him. (Testimony of Capt. Pigford).
22. The Panel awarded Petitioner 186 points for his education, experience, training and certificates; it awarded Mr. Hall 162 points.
23. The Panel awarded Petitioner 10 point for his college degree in criminal justice, 50 points for his 25 years of related work experience (not including military), 106 points for related training, 10 points for his advanced law enforcement certificate, and 10 points for his State employee’s preference.
24. The Panel awarded Mr. Hall 46 points for his twenty-two years, five months of DMV experience (two points more than appropriate), 106 points for related training, and 10 points for his State employee’s preference.
The Oral Interview
25. Each member of the Panel was aware Petitioner was 24 points ahead of Mr. Hall before the oral interview was conducted.
26. Petitioner was the first candidate interviewed. Scores for each candidate were tallied immediately following his interview. Each panel member was aware when interviewing the next candidate, Mr. Hall, of McAdams’ total score.
27. Maj. Carden, whom Sizemore had appointed to be the Chair, wrote to “Acting Lt. Col. Sizemore” with the Panel’s scores and Maj. Carden’s assessment.
28. An analysis of the oral interview scores showed that Petitioner was scored lower than Mr. Hall by the three white panelists for responses that were almost identical. For example, Question 4 asked: “If you were selected as Captain, what would your job responsibility be?” Petitioner and Mr. Hall both responded in similar language and length. The three white interviewers total score was 14 for Hall (out of a maximum of 15 points) and 8 for Petitioner. The two African American interviewers awarded Hall and Petitioner each a total of 8 points. Exhibit 37 Illustrative compared the notes taken by the different interviewers and the scores.
29. In Question 20, which asked whether the applicant was aware of “Any reason why you cannot perform the essential functions of this position with or without a reasonable accommodation?” both candidates replied they were not aware of any reason. Mr. Hall received a total of 25 points from the panelists for his not being aware of any reason, whereas Petitioner received a total of 23. One of the white interviewers penalized Petitioner for his response.
30. The procedure used by the DMV here was to double the scores assigned to the responses of the candidates by five interviewers who conducted 45-minute interviews. The DMV admitted that it had no evidence that this method was “validly related to the duties and responsibilities of the vacancy to be filled” in this case.
31. The DMV Human Resources Director did not know whether this method had ever been validated, but she thought it had not. She did not know whether it had ever been evaluated by the OSP, but she thought it had not. The former Director of the Equal Employment Opportunity Office testified that the DMV promotion procedures had never been reviewed by the OSP Equal Employment Opportunities Office.
32. Ms. Nellie Riley, qualified as an expert in promotion procedures and equal employment opportunity, testified that the type of subjective interviews conducted here were inherently biased against minorities, particularly Black males, and that using the subjective interview scores as two-thirds of the promotion criteria exacerbated the problem.
33. The scores given in the oral interviews were infected with racial bias.
The Decision
34. Acting Deputy Director Sizemore recalled talking with Colonel Richards about the decision to hire Steve Hall over Inspector McAdams for “a minute, maybe two.” Sizemore did not recall whether Col. Richards was working on something else at the time or whether Col. Richards looked at the results of the Panel Interview Results.
35. At the time the promotion decision at issue here was made the Colonel and Lt. Colonel (the final decision makers) enjoyed the option to select any of the top three listed candidates. However, at this time, the decision makers had always “gone with” the candidate who had received the highest overall score.
The DMV Promotion Policy
36. The DMV witnesses testified at the hearing that they did not know what policy was in effect at the time of this promotion. During discovery, DMV provided Petitioner with a policy manual that, at the time, the DMV represented applied to the promotion in question. It is found that the policy that was admitted as Petitioner’s Exhibit 37 was the policy in effect at the time of the promotion at issue here.
37. This policy (Petitioner’s Exhibit 37) provided that the guidelines for “determining a promotional candidate” include:
(1)Application Score: Panel will review Applicant’s PD-
107 and score it as follows:
(A)Education: “Points will be based upon years of college completed and type of degree.” 15 points for Master’s in Criminal Justice; l0 Points for Bachelor’s in Criminal Justice; 5 points for a two year degree in criminal justice; if no degree, 2 points for each year of college or technical school satisfactorily completed.
(B)Experience: “ 2 points for each full year of law enforcement related work experience or other related work field.”
(C)Training: 2 points for each related training class in law enforcement or related field. Training classes must be at least 8 hours, and must be documented and attached to application when submitted.
(D)Each panel member grades the application and the total application score will be multiplied by 5 for a total application score (e.g.) 5 X 80=400
(2) Oral Interview Scores NOTE: The rank of First
Lieutenant and up will have 25 oral questions, no essay
questions.
(A) The [25] oral questions may be scored up to a maximum of 5 points per question, with an overall possible score of [125] points given by the panel member for each promotional candidate.
(C)Each panelist will add their point values to determine a total oral interview score.
(D) The Chair will record each panelist’s total oral interview points, add the five total oral interview scores and multiply by 2 for the “Overall interview Score.”
Overall Total Score: Application Score + “Overall Interview Score”=Total Score
38. This DMV policy means the oral interview score of individual interviewers assessing how an applicant presents himself in a 45 minute interview is worth twice as much as how he had performed over many years in educational and experiential settings related to the position applied for, and whether he had the basic qualifications for the job.
39. Mr. Hall was awarded 106 points for his training. Maj. Carden’s worksheet, P. Exh. 10, shows that a mathematical error was made in Hall’s favor, giving him an extra 10 points, and that he was awarded training points for 25 courses of fewer than eight hours, giving him an extra, undeserved 50 points, for a total of 60 points erroneously granted to Hall. His actual training score should have been 46 instead of 106. R. Exh. 2.
40. Petitioner also received some points for courses of less than eight hours. However, his extra points were limited to a total of 10.
41. Therefore, instead of receiving identical training scores of 106, Hall and Petitioner should have received very different scores: 96 for Petitioner, and 46 for Hall.
42. The credit given for a college degree in criminal justice in DMV’s point system is 10 points. This is the same points that would be given for five eight-hour training sessions. Giving credit for college at the same rate as is given for training would result in roughly 1440 points (36 weeks of full-time instruction per year, times 10 points per week, times four years). Clearly, 1440 points would be unreasonable. However, at a minimum, two weeks’ credit (or 20 points ) per year would be reasonable, for a total credit for a college education of 80 points.