STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
WAKE COUNTY 04 OSP 1230
______
AGNES LOUISE MANKES, )
Petitioner, )
)
v. )
) DECISION
)
NORTH CAROLINA STATE )
EDUCATION ASSISTANCE AGENCY, )
Respondent. )
______
The above-captioned hearing was heard before James Conner, II, Administrative Law Judge, on December 13, 2004, in Raleigh, North Carolina. Though Ms. Mankes proceeded pro se at the hearing, the Office of Administrative Hearings received a letter on January 24, 2005 from attorney David Schiller indicating that he would be representing Ms. Mankes. The transcript was received by the Office of Administrative Hearings on January 18, 2005. Both parties submitted proposed Decisions on February 17, 2005. The participants in the hearing, the exhibits admitted at the hearing and the witnesses presented by each party are listed immediately below.
APPEARANCES
For Petitioner: Agnes Louise Mankes, pro se (with assistance from her husband, Robert Mankes)
For Respondent: Joyce S. Rutledge
Assistant Attorney General
N.C. Department of Justice
P. O. Box 629
Raleigh, North Carolina 27602
EXHIBITS
Admitted for Respondent
1. January 15, 2004 letter from Johnson to Mankes
2. Johnson pre-disciplinary conference notes
3. Email 1/23/04 from Harris to Mankes
4. Borrower Log #4
5. Borrower Log #2
6. Notes on Log File Report re: disability letter
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7. Email reminding Mankes to be careful with disability letters
8. Reorganized Training Manual (Binder)
9. Standard Training Manual (Binder)
10. Typed notes summarizing Step 1 meeting
11. Mankes’ appeal letter dated 3/15/04
12. Mankes’ journal with account numbers/ssn
13. Step I decision letter
1. Letter from Harris to Mankes, 11/12/03
14. Email requesting special chair for Mankes’ leg
15. 1/30/04 letter from Doctor confirming return to work full-time
18. Collections Training Manual
20. Email re: Mankes’ computer problems
21. Email reminding Mankes that IT questions must go through management
22. Email from Harris to Roupe concerning training for Mankes on Galahad
23. Email 2/19/04, Harris to Mankes
24. Email 2/23/04 from Harris to Mankes
25. Email 2/10/04 re: proper logon procedures
26. Borrower log #7, without phone # on main borrower information page
27. Borrower log #1, noting left message at home, but no home # listed
28. Written warning dated 2/5/04
29. Letter of invitation to pre-disciplinary conference
30. Notice of dismissal
31. Step II appeal
32. Step II decision
33. Step III hearing officer recommendation to President Broad
34. Step III decision by President Broad
35. Email confirming 2/5/04 Galahad training
36. Galahad User Tips
37. Student Loan Guaranty Agencies Brochure
Admitted for Petitioner
1. 1/29/04 email questions from Mankes to Harris, with Harris response
WITNESSES
For Respondent
Anthony Bordeaux
Edna Williams
Wayne Johnson
Je’Neise Harris
Steven Brooks
David Roupe
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For Petitioner
Agnes Louise Mankes
ISSUE
Was Petitioner, Agnes Louise Mankes, discharged from her employment with Respondent Authority for just cause?
BURDEN OF PROOF
Pursuant to N.C.G.S. § 126-35(d), Respondent has the burden of proof to show that it had just cause to terminate 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 by 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. Petitioner was hired by Respondent North Carolina State Education Assistance Authority (“the Authority”) in the fall of 2000 and worked initially in the Origination Services department of the Health, Education and Welfare (HEW) Division. Tr 43; 188
2. There are presently thirty-six such agencies around the country, whose programs’ missions related to federal and State college student loans are fulfilled through interaction with higher education officials, student loan officers and borrowers. Tr 154-55; R-Ex. 37
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3. Within the first year, approximately, of Petitioner’s employment at the Authority, she was promoted from a Processing Assistant III to the position of Processing Assistant V, working in Collections for the HEW Division, effective October 2001. Tr 43-44; 45; 188
4. The Authority is subject to Chapter 126; and Petitioner’s positions with the Authority were “SPA,” subject to Chapter 126.
5. As a result of a pre-dismissal conference held on October 17, 2003, however, Petitioner was demoted from her Processing V position to a Processing Assistant IV position. Tr 157; R-Ex. 14 This demotion followed three letters of discipline in her prior division. Tr 31-32
6. From the HEW Division, Petitioner was transferred to the Guaranty Agency Services Division, effective October 24, 2003. Tr 30; 50; 80 This transfer was to effectuate Petitioner’s demotion to a Processing Assistant IV.
7. In a prior Order by Chief Administrative Law Judge Julian Mann in this contested case, dated 15 November 2004, OAH determined that Petitioner had failed to file a timely challenge to her October 2003 demotion. Therefore, her demotion was not at issue during the hearing before the undersigned ALJ.
8. The Processing Assistant IV position in the Guaranty Agency Services Division was an existing vacancy within the Authority, Tr 150, felt by her employer to be suitable for Petitioner, to whom the Authority wished to give “a fresh start” in tasks “somewhat akin” to those she had performed in her prior position. Tr 81; 163
9. The new position was with a department known as “Repayment Services” at the time of Petitioner’s demotion. Tr 92 That department’s primary goal is to recover unpaid loan moneys from borrowers in default. Tr 92-94 Harris, the supervisor of the department, sees her six counselors’ collection activities as a “team effort”. Tr 92-93
10. The Executive Director of the Authority, who was consulted prior to Petitioner’s transfer to Guaranty Agency Services, gauged that the new position would be “a simpler task” for Petitioner “but related to the task she was already doing.” Tr 158 The Executive Director’s testimony on these points was not rebutted at trial.
11. Because of intervening medical leave, it was January 21, 2004 before Petitioner reported for her new Processing Assistant IV position with Repayment Services at the Authority. Tr 51
12. However, both her future supervisors had earlier sent Petitioner correspondence, inviting her to contact them about the new position into which the Authority was transferring her. R-Ex. 14 & R-Ex. 1 Neither supervisor sending introductory correspondence to Petitioner received any response from Petitioner, despite their requests that she contact them before reporting. She did, however, finally show up for work on January 21, as she was informed she needed to do in order for the Authority to continue to hold the position for her. Tr 51-52; 80; 96
13. At trial, Petitioner offered no explanation for failing to contact either Johnson or Harris, in response to their written communications with her prior to her reporting to work on January 21. “[F]rom the period from October [2003] to January [2004], technically she was assigned to my division but was unaccounted for.” Tr 80 The letter to Petitioner from Harris, R-Ex. 14, dated 12 November 2003, described the work in Petitioner’s new department, requested that Petitioner contact Harris “to discuss your start date,” and further indicated that Petitioner “need[ed] to contact me prior to your return to work so that I [Harris] can make arrangements regarding the departmental schedule, access to the building, computer and phone setup, and training.” R-Ex. 14
14. Petitioner simply ignored not only this request from Harris, her new supervisor, but also a similar later request sent by Director Johnson on 15 January 2004, R-Ex.1, “to contact your immediate supervisor, Je’Neise Harris at 919-248-4661, to confirm your return to work and receive further details regarding your duties and schedule.”
15. The Director of the Guaranty Agency Services Division, Wayne Johnson, met with Petitioner first on January 21, and provided her with “a fairly long introduction” to the work of his division and to Petitioner’s particular duties. Tr 52-53; 79 Petitioner’s new direct supervisor, Je’Neise Harris, joined Petitioner during this “long orientation” session with Director Johnson. Id.; 79 & 97
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16. Afterward, Harris proceeded to have an individual orientation with Petitioner, which Petitioner cut short unexpectedly. Petitioner surprised Harris by telling her that she was not cleared for full-time work by her doctor. Tr 97-98 Before the end of that same month, Johnson and Harris obtained further verification that Petitioner was indeed medically cleared for full-time employment. Tr 100; R-Ex. 16
17. During the training period, as indicated to her during the introductory conferences with Johnson and Harris, the Authority provided Petitioner with a number of training manuals. Tr 53; 73-74; 81-82; 88-90; 101-105; 204-05; R-Ex. 8; R-Ex. 9; R-Ex. 18; R-Ex. 36 Every one of the six repayment counsellors has an individual copy of a procedures and policy manual, as well as a copy of the Galahad Letter Book manual in her own cubicle. Tr 217 Such manuals are personally provided to each new counsellor by Harris herself. Id. In fact, the title page of the procedures and policy manual, R-Ex. 9, was still in the binder that Petitioner says she herself had put together, R-Ex. 8; Tr 218, even though Petitioner testified on cross-examination that she was never given any training manuals in this position. Tr 198 & 200
18. Petitioner’s testimony about not having received any training manuals is not credible, as it is contradicted not only by Harris’s description at the hearing of the methods she has consistently used for training her new counsellors but also by the multiple exhibits presented by Respondent at trial containing detailed written information not only useful but crucial to the work of the repayment counselors. R-Exs. 8; 9; 17; 17B; 18; 19; & 36
19. All the repayment counsellors who report to Harris receive identical information, Tr 135 & 136, because all the counsellors are required to master the same federal guidelines and other policies in order to work with borrower accounts. Tr 219 Based on Harris’s credible testimony, the undersigned finds that training manuals were provided to Petitioner, despite Petitioner’s testimony to the contrary. Otherwise, Petitioner would have had nothing to read and study during the three weeks which Harris accorded to Petitioner for training, which training included a large component of reading and studying.
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20. The on-the-job training for Petitioner -- consisting of observations of the work of department colleagues, working under the monitoring of her colleagues, and studying the training manuals and Galahad Letter Book -- in her new position took place from January 21 through approximately mid-February 2004. Tr 73-74; 85-86; 130-32; 143-44; 146 Among the counsellors Harris had Petitioner sit with were Ms. Brannon, Ms. Wright, Ms. Seagraves and Ms. Mitchell. Tr 143-44 Although Harris also asked Petitioner to sit with Ms. Pham, Petitioner did not want to do that and Harris did not push the issue. Tr 143
21. Despite her supervisor’s repeated instructions that Petitioner read the training materials, however, Harris observed that Petitioner “wasn’t doing what I had directed her to do.” Tr 134-35; 144 (“she had not been doing the reading. Instead she was doing more copying and printing.”) Although Petitioner was not doing as Harris directed, Harris asked Petitioner during the training period “to read the information so that she would know about the different programs, that she would understand about the different programs, that she would know the different tools that we are to use.” Tr 134 “I wanted her to read what I asked her to read, read the letters that I asked her to read, and to sit with the counselors and get an idea of how – what we are doing.” Id. “I wanted her to stay on the track that I had her on because this [training method] works.” Tr 135
22. An average amount of time needed for training a new repayment counsellor such as Petitioner is “two to three weeks.” Tr 105-106 Petitioner worked in Repayment Services from 21 January to 1 March 2004. Tr 140 In the view of the Director of Guaranty Services, Petitioner had adequate time and training to be ready to perform her job duties. Tr 84-85; 106 (“if you are paying attention and if you want the job, you can be up to speed within two to three weeks if you are paying attention and you came with the mind-set to work.”)
23. When it appeared to Harris that Petitioner was not catching on, Harris -- as Petitioner’s new direct supervisor -- also made numerous repeated requests to Petitioner regarding using proper office procedures and working more efficiently, as Petitioner was not following normal protocols, meaning that her work was in worse shape than that of fellow employees. Tr 55; 66 One item leading to particular frustration was that Petitioner did not make accurate entries into the history on borrower accounts. Tr 144
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24. Unfortunately, Petitioner did not accept attempted correction of her errors by her colleagues. Tr 147-48; 149 (“It was just hard to show [Petitioner] these errors because she felt like that this was not so, [felt] she was working all these accounts and correctly.”); Tr 145 (“Prior to that [the predismissal conference] I had tried to talk with [Petitioner] and several of her coworkers had tried to talk with her, but they – as one coworker came and told me that she [Petitioner] was unteachable and it was hard to address the issues with her.”); Tr 148 (“when they [the other repayment counsellors] would see errors like this, they would talk to [Petitioner] [a]bout it, but she wouldn’t allow them to show her. So, you know, these things were brought to my attention.”)
25. Petitioner’s resistance to being taught and corrected is unrebutted in the record. See also Tr 145 (“Like I said, this [teaching and correction] had been tried and she [Petitioner] found no errors in what she was doing. She made a statement that she was not making any errors, that she knew what she was doing.”)