STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 01 OSP 0778
MARIANNE E. MOSS )
Petitioner, )
)
v. ) DECISION
)
NORTH CAROLINA DEPARTMENT )
OF HEALTH and HUMAN SERVICES, )
Respondent. )
The above-entitled matter was heard before the Honorable James L. Conner II, Administrative Law Judge, August 30, October 11, October 12, October 22 and October 23, 2001 in Raleigh, North Carolina. The transcript was filed with the Office of Administrative Hearings on November 28, 2001. Respondent filed proposed Findings of Fact and Conclusions of Law on January 2, 2002.
APPEARANCES
Petitioner: Janet I. Pueschel
Attorney at Law
333 Fayetteville Street Mall
Suite 1050
PO Box 1050
Raleigh, North Carolina 27603-2725
Respondent: Dorothy Powers
Assistant Attorney General
NC Department of Justice
PO Box 629
Raleigh, North Carolina 27602-0629
STATEMENT OF THE CASE
Petitioner filed a Petition for Contested Case Hearing with the Office of Administrative Hearings on April 26, 2001 alleging that Respondent, Department of Health and Human Services (“DHHS”), failed to protect her from unlawful workplace harassment by Dr. John Booker. Petitioner further alleged that DHHS ignored the situation despite a previous official complaint by another female, which was settled by the parties.
On or about June 22, 2001, Respondent filed a Motion to Dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. On July 3, 2001 the Motion to Dismiss was denied. The matter proceeded to hearing on August 30, 2001 and Petitioner rested her case on that day. On September 27, 2001, Respondent filed its Second Motion to Dismiss pursuant to Rule 41(b). This motion was denied in open court on October 11, 2001. The matter continued to be heard on October 11, 12, 22, and 23, 2001.
ISSUES
1. Whether the Petitioner was subjected to unlawful harassment by Dr. John Booker because of her sex/gender in violation of G. S. § 126- 34?
2. Whether DHHS failed to protect Petitioner from unlawful harassment by Dr. John Booker?
PETITIONER’S WITNESSES
Rebecca Martin
Marianne E. Moss, Petitioner
Betty Jean Lavendar
Kim Stancil
Andrew R. Finlayson
Alexander (Torrie) McLean
RESPONDENT’S WITNESSES
Diane Tew
Dr. John Booker
Janice (Jan) Routh
John Eley
Deann Rudd
Eleanor Howell
Paul Beuscher
Ellen Zimmerman
Kathleen Jones-Vessey
Marianne E. Moss, Petitioner
Mary Ann Pittman
EXHIBITS
The following exhibits were admitted on behalf of the Petitioner.
1. Attachment to Petition for a Contested Case to the State 10/29/99
Personnel Act - Rebecca D. Martin
2. Memorandum to Marianne Moss from John Booker 01/14/00
4. Department of Health and Human Services Work Plan 06/08/00
6. Mutual Settlement Agreement and Release (Rebecca Martin) 10/00/00
8. Letter from Gov. James B. Hunt to J. Russell Capps 12/01/00
9. Memorandum from Marianne Moss to Steve Cline 12/18/00
10. E-mail to Steve Cline from Marianne Moss 12/19/00
11. E-mail from Steve Cline to Marianne Moss 12/20/00
12. E-mail to Steve Cline from Marianne Moss 01/08/01
13. Memorandum to Mary Ann Pittman from John Booker 01/24/01
14. Memorandum to Paula Taylor from Marianne Moss 01/29/01
15. Letter Sondra C. Panico from Rebecca D. Martin 02/02/01
17. E-mail to Paula Taylor from Marianne Moss 02/16/01
18. Letter to Rebecca D. Martin from Dorothy Powers 02/16/01
19. E-mail to Marianne Moss from Paula Taylor 02/21/01
20. Letter to Dorothy Powers from Rebecca D. Martin 02/27/01
22. E-Mail to Andrew McBride from Paula Taylor 03/23/01
24. Letter to Marianne Moss from A. Dennis McBride 04/06/01
25. Memorandum to Paula F. Taylor from Marianne Moss 04/12/01
26. Petition for a Contested Case Hearing 04/26/01
27. Letter to J. Russell Capps from Carmen Hooker Buell 04/27/01
28. Problem Statement 06/18/01
The following exhibits were admitted on behalf of the Respondent:
1. Moss’s performance appraisal 5/19/99
2. Moss’s grievance 5/26/99
3. Booker’s response 6/18/99
4. Moss’s Interim Review 1999-2000 1/14/00
5. Moss’s performance appraisal 6/8/00
6. Moss’s complaint 6/10/00
7. Booker’s memo to Moss re performance 11/29/00
8. Moss’s performance appraisal 2/23/01
9. Moss’s grievance 2/28/01
10. Moss’s resignation 2/12/01
11. Investigation: (a) interview questions, (b) Paul Buesher, (c) Carol Hanchette, (d) Dale Herman, (e) Vicki Hill, (f) Eleanor Howell, (g) Pat Jones, (h) Kathleen Jones-Vessey, (i) Betty Lavender, (j) Jennifer Maddrey, (k) Torrey McLean, (l) Manjoo Mital, (m) Marianne Moss, (n) Phyllis Rochester, (o) Jan Routh, (p) Kim Stancil, (q)Diane Tew, (r) Rajesh Virker, and (s) Marion White.
12. Booker’s response 3/23/01
13. Investigation Results/Recommendations 3/30/01
14. Resignation letters: (a) Andrew R. Finlayson, (b) Carol Hanchette, (c) Vicki Mason Hill, (d) Michele H. Jarvis, (e) Betty Lavender, (f) Rebecca D. Martin, (g) Marianne E. Moss, (h) Jan Routh, and (i) Kimberly Stancil.
15. McBride’s letter to Moss 4/6/01
16. DHHS Directive Number 33 4/01/00
17. Unlawful Workplace Harassment Policy 3/01/01
18. Email re Personnel Database 12/5/00
19. Moss’s performance appraisal (signed copy) 6/9/00
20. Memo to File from Mary Ann Pittman 4/12/00
21. Complaint from Gustavo Fernandez 5/18/00
22. E-mail from Booker to Deann Rudd 7/12/00
23. Administrative Secretary II Description of Work
24. Position Description Clerk-Typist/Program Assistant V
25. Position Description Administrative Secretary II
The following exhibits provided by the Petitioner were admitted on behalf of the Respondent:
3. Mary Ann Pittman’s Work Plan January 24, 2000
13. Memorandum to Mary Ann Pittman from John Booker January 24, 2000
FINDINGS OF FACT
1. The parties received notice of the scheduled hearing at least 15 days in advance.
2. The parties stipulated that Petitioner has the burden of proof. (T p.9, 1175).
3. Dr. John Booker (“Booker”) became employed as the Director at Respondent’s State Center for Health Statistics (“State Center”) in January 1998. (T p. 443). As the Director, he was ultimately responsible for all employees at the State Center. (T p. 614). The Deputy Director’s position, second in command, was held in succession, by Andy Finlayson (“Finlayson”), Janice Routh (“Routh”) and Mary Ann Pittman (“Pittman”). (T pp. 1170-1171).
4. Booker hired Petitioner as an Administrative Secretary II at the State Center on August 1, 1998. (T p.126). Petitioner’s job included all secretarial duties including letters, memorandums, personnel, computer, and telephone work. (T p. 61).
5. Rebecca Martin (“Martin”) was employed at the State Center for almost three years as the Director of Central Cancer Registry. (T p. 17).
6. Martin testified that she left the State Center because of gender harassment from Bookerand the State’s failure to take any action with regard to it. (T pp.17-18). She testified that Booker singled women out by making them attend budget meetings (T p. 22); that he had different leave policies for her than for the men; that he required her to have a roommate when traveling on State business (T p. 24); and that in meetings whenever she or Petitioner would talk, he would lean back in his chair, roll his eyes, sigh, and do things that were dismissive. She testified that Booker raised his voice to her and the Petitioner. Martin further testified that Booker harassed her about her MPQ (work plan), by taking the measures out and making her re-do it. (T pp. 25, 27). Martin alleged that Booker held up her request to buy computers for months, he made disparaging remarks belittling her in front of others and told others that she was not a team player. (T p. 29).
7. All the program managers, male and female, were required to attend budget meetings including Martin, Torrey McLean (a male), Rajesh Virker (a male), Paul Buescher (a male) and Janice Routh, McLean’s assistant at the time. (T pp. 343, 346, 412, 629, 630, 864).
8. All of the program managers were requested to make changes on their MPQs (work plans), including Paul Buescher, Rajesh Virker, Carol Hanchette and Jim Wilson. (T pp. 426-427). Rebecca Martin’s MPQ was overly complicated and Torrey McLean’s was the worst. (T p. 427).
9. Martin kept an erratic schedule and her staff wouldn’t know where she was much of the time. (T p. 422). Booker told Martin that she should try to keep a more regular schedule because there were some days that she worked 2 hours and other days she worked 10 hours. (T p. 51). Booker’s leave policy was universal for the employees of the State Center. (T p. 423). His policy was that if it was a planned absence, prior notice was required along with an indication of who would cover for the absent employee. If an employee didn’t know they were going to be out, they were required to give notice as soon as they had the opportunity. (T pp. 552-553, 867-868, 1032-1033).
10. In staff meetings, there was friction between Martin and Booker. Martin was outspoken and on some occasions aggressive. She would “buck” Booker in public meetings and resisted some of his ideas. (T pp. 859-860).
11. Booker’s boss, Dr. Ann Wolfe, made a departmental policy that when people were traveling on state money that same sex employees were required to share a room.(T pp. 426, 933, 1034).
12. Booker didn’t approve Martin’s request to buy computers because it was unnecessary as some of her staff’s computers were only a year old and other people sitting within a clear view of Martin’s staff didn’t have computers that amounted to much of anything, to work with. (T p. 429).
13. Prior to Martin’s gender harassment complaint about him, Booker complained about Martin to his superior, Dr. Ann Wolfe and to Human Relations. He complained about her resistance to him as a supervisor and that she dealt directly with the Legislature despite strong policy against it. (T pp. 431-432).
14. Martin testified that Booker had the worst communication skills of any manager she has ever had; he was not communicative; he was hypercritical; had unrealistic expectations; was a micro-manager and he never complimented her. (T pp. 40-41). Torrey McLean (a male) told Martin that Booker never complimented him. (T p. 47).
15. Martin settled her complaint of gender harassment against Booker with the Respondent for $125.00. Pursuant to the terms of the Settlement Agreement, Respondent agreed to “take appropriate action to ensure that all concerns raised by [Ms. Martin] in her meeting ... w[ould] be properly investigated.” The parties acknowledged that the agreement did not constitute an admission of unlawful discrimination, harassment or retaliation against Martin by DHHS. (T pp. 707-708; Petitioner’s Exhibit 6).
16. Mary Ann Pittman testified that she thought Martin was scattered-brained and unable to focus on what was being asked of her; that she was obsessed with giving her opinion on how she hated Booker (Tp p. 931, 932); and that Booker was frustrated in trying to deal with Martin because he could not get her to focus on the budget issues. (T p. 932).
17. John Eley (“Eley”) was the Director of Human Resources for the Division of Public Health, Department of Health and Human Services. His duties included managing the human resources function, position management, employee relations, recruitment, and performance management. Eley left the Department of Health and Human Services in December 2000 to become the Director of Human Resources at North Carolina Central University. (T pp. 702-703).
18. Fairly early after Booker was appointed as Director at the State Center, Martin came to Eley with issues that she had in dealing with Booker as her supervisor. The issues included Booker’s micro-management and inflexibility. It was not until about 6 months after Martin’s initial complaints that she raised differential treatment issues. (T pp. 704-705).
19. Martin was not an impartial witness. She has shown bias, prejudice and interest in this matter. She had her own complaint against Booker for gender harassment, which she made after Booker made complaints about her job performance. (T pp. 431-432).
20. Approximately 8 months after Booker came on, Alexander (Torrie) McLean (“McLean“) raised complaints about Booker to Eley. This was prior to Rebecca Martin’s complaints about gender issues. (T p. 719).
21. In conformance with Martin’s Settlement Agreement, Eley spoke with some of the people that Martin suggested he speak with. (T p. 709). Eighteen months prior to this time, Eley’s assistant Connie Cox had investigated employee relations problems between Martin and Booker. (T p. 743).
22. Eley spoke with Jennipher Maddrey, who told him that Booker treated everyone poorly. Maddrey stated that she never saw one person so negatively affect so many people. (Respondent’s Exhibit 11 j; T pp. 708, 712).
23. Eley also spoke with McLean, a male, upon Martin’s request. McLean told Eley that emotionally, Booker responds differently to strong women, that he micro-manages and has a big ego. McLean also stated that Booker underestimates people reporting to him and is patronizing and condescending. McLean raised the general concerns that he never heard Booker say anything to indicate that he cares about public health, he discards people, he did not support McLean with the Register of Deeds, and he doesn’t take personal interest in his staff. McLean suggested that Eley speak with Andy Finlayson. (Respondent’s Exhibit 11 k; T pp. 715- 718).
24. McLean was supervised by Booker for about 3 years. (T p. 257). McLean testified that Booker had separate standards for Rebecca Martin than the male branch heads and that he treated Martin in a condescending, dismissive manner at staff meetings. (T p. 262).
25. McLean filed a grievance against Booker for placing inaccurate and misleading comments in his annual evaluation. (T pp. 137, 266, 275, 517). His grievance was upheld and management offered to remove the comments. However, McLean did not accept the relief offered to him. (T p. 273).
26. McLean and Martin were very close. (T p. 628).
27. McLean testified that Booker made promises that weren’t kept, he used people, he was obsessed with the control of money, he ignored advice, he blamed other people for things he did and took credit for what other people did. He also testified that Booker has a big ego, micro manages, underestimates the people that report to him, has a condescending attitude towards his staff, is very authoritative, and reacts in a negative way to being challenged. McLean further testified that Booker used his position and the people that worked for him to personally advance himself and is very self centered. (T pp. 262, 276-277, 279, 288).