STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

WAKE COUNTY 01 OSP 1241

DOROTHY WATSON, )

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA DEPARTMENT )

OF TRANSPORTATION, )

Respondent. )

______

This matter was heard before Administrative Law Judge Beecher R. Gray in Raleigh, North Carolina, on June 5-6, 2003. Charles Everett Robinson, Esq., appeared on behalf of Petitioner. Tina A. Krasner, Assistant Attorney General, appeared on behalf of Respondent.

PROCEDURAL BACKGROUND

On July 20, 2001, Petitioner filed a Petition for a Contested Case Hearing in the Office of Administrative Hearings contending that she was denied a promotion on the basis of race, sex, and age discrimination. Petitioner filed her prehearing statement on August 29, 2001. Respondent filed its prehearing statement and document constituting final agency action on September 12, 2001.

ISSUES

Did Respondent intentionally discriminate against Petitioner on account of race by not selecting her for promotion to the position of Information Systems Director II (Position No. 00001)?

Did Respondent intentionally discriminate against Petitioner on account of sex by not selecting her for promotion to the position of Information Systems Director II (Position No. 00001)?

Did Respondent intentionally discriminate against Petitioner on account of age by not selecting her for promotion to the position of Information Systems Director II (Position No. 00001)?

WITNESSES

Petitioner presented testimony from the following witnesses: Petitioner, Mack J. Davenport, and Paul Roberts.

Respondent presented testimony from the following witnesses: Ernest Daniel (“E.D.”) Walker, Jr. and Steven Hulsey.

EXHIBITS

Petitioner’s Exhibit 1 was admitted into evidence.

Respondent’s Exhibits 1-14 were admitted into evidence.

FINDINGS OF FACT

Based upon the official documents in the file, the sworn testimony of the witnesses, and the other competent evidence admitted at the hearing, the undersigned finds the following facts:

1. The Department of Transportation (“DOT”) originally had two separate technology branches—the Information Systems Technology (“IST”) Branch (also formerly known as Management Information Systems (“MIS”)) and the Engineering Technology Systems (“ETS”) Branch. The two branches were located in separate facilities, at least six miles apart. (T Vol. I, pp 23, 170; T Vol. II, p 274)

2. The IST Branch, headed up by Paul Roberts, handled the technological needs for the business sections of the DOT, including personnel, fiscal, and the Division of Motor Vehicles. Mr. Roberts came to the DOT in 1992 from Florida into the position of Director of Safety and Loss Control. In 1997, he became Chief Information Officer of the IST Branch. (T Vol. II, pp 266-267)

3. The ETS Branch, headed up by E.D. Walker, provided technological support statewide for all other groups in the DOT, including the Division of Highways. The Division of Highways is the largest single division, with more than 12,000 of the DOT’s 15,000 employees and is concerned with specialized types of programming relevant to engineering and highway design. Mr. Walker began his career with the DOT in 1964. From 1985 through 1992, Mr. Walker was involved in recruiting and hiring over a hundred minority employees for the DOT’s engineering training program. He took over the ETS Branch in 1993. Mr. Walker retired from state service on March 31, 2003. (T Vol. I, pp 166-168, 170-172, 201-203)

4. After David McCoy was appointed as the Secretary of Transportation in July of 1999, he began an effort to evaluate the structure of the technology branches within the DOT. In June 2000, based in part on a report from the State Auditor, Secretary McCoy merged the DOT’s two existing technology branches to form one Information Technology (“IT”) Division. One of the goals in creating the new IT Division was to place strong emphasis on a project management structure. Therefore, Secretary McCoy established the Enterprise Program Office to achieve common project discipline and provide a central vehicle for monitoring and reporting project status. (T Vol. I, pp 23-24, 77-78, 168-169; T Vol. II, p 325)

5. Secretary McCoy created a Chief Technology Officer (“CTO”) position to head up the IT Division. Both Mr. Roberts and Mr. Walker applied and were interviewed for the position, yet Secretary McCoy selected Mr. Walker as the new CTO. Secretary McCoy also gave Mr. Walker the authority to make significant organizational changes. (T Vol. I, pp 168-171; T Vol. II, pp 285, 326)

6. After he assumed the CTO position, Mr. Walker first talked to all upper-level management regarding the services they were receiving and made changes accordingly. Mr. Walker agreed with Secretary McCoy that he would leave Mr. Roberts’ position intact since it was known that Mr. Roberts planned to leave the DOT after passing the bar exam. Mr. Roberts reported directly to Mr. Walker until he resigned from the DOT in the fall of 2000. (T Vol. II, pp 267-268, 285, 327)

7. Mr. Walker had minority employees on his senior staff when he was the CTO. His opportunity to fill available positions was extremely limited, however, due to a statewide hiring freeze. Despite the constraints on Mr. Walker’s ability to fill some positions, he was responsible for reallocating the positions of three female managers in IT, one of whom was black. (T Vol. I, pp 204-207; Respondent’s Exh. 12)

8. After the merger occurred, Mr. Roberts and Mr. Walker had discussions about all of the managers, including Petitioner. Wayne Stallings, the DOT’s Chief Financial Officer, had expressed concerns about Petitioner’s customer service. Mr. Roberts and Mr. Walker also discussed that the black employees in IST had been e-mailing each other exclusively. In fact, one black female in IST went to Mr. Roberts with complaints about the e-mails. She felt harassed and wanted the communications to stop. Mr. Roberts complained to Mr. Walker that whenever he had conflicts with black employees, they would typically bypass the chain-of-command and complain instead to Deputy Secretary Manny Marbet (a black male), who was Mr. Roberts’ supervisor. Mr. Walker agreed that to bypass the chain-of-command might undermine his authority as well. However, after the merger, Mr. Marbet was no longer Mr. Walker’s supervisor. Mr. Walker began reporting directly to the Secretary of Transportation. (T Vol. II, pp 275-277, 280-282, 286-290, 323-325)

9. Petitioner had not worked with Mr. Walker prior to the merger. After the merger, she met with Mr. Walker and was removed from her job responsibilities because of a “customer service” problem. She then was reassigned to the Project Management Office under Steven Hulsey’s supervision working on quality assurance. Her salary, title, and other benefits were not affected by this change in job duties. There had been four manager positions in the IST Branch under Mr. Roberts’ direct supervision, including Petitioner’s position, and each manager’s job duties were rearranged. Mr. Walker moved Duane Smith, a white male over age 40, to quality assurance. He also removed managerial duties from two other white males. (T Vol. I, pp 24, 28-34, 48, 83-84, 87-88, 110, 198)

10. As CTO, Mr. Walker oversaw 150 permanent employees and between 150-175 temporary and contract employees. He soon realized the need for a position to lead the Enterprise Project Office due to the increasing number of IT projects and to ensure that projects were completed on time and within budget. In addition, Mr. Walker envisioned a Deputy CTO position to provide a strong “number two” figure within the IT Division who could step in and assume the various duties and responsibilities of the CTO when needed. (T Vol. I, pp 169-170, 173)

11. At his management meetings, Mr. Walker discussed his work overload and requested volunteers to help. Mr. Hulsey, who frequently worked overtime, began helping Mr. Walker one evening. Mr. Walker eventually made Mr. Hulsey acting Deputy CTO in August 2000, without any change to Mr. Hulsey’s salary or pay grade. (T Vol. I, pp 176-177)

12. Mr. Walker, in conjunction with the DOT’s Human Resources Division and Position Management Unit, drafted a position description and vacancy posting for the position of Information Systems Director II, commonly known as Deputy CTO. On May 9, 2001, Mr. Walker requested permission to post the position. Becky Keith, the DOT’s Human Resources Director, subsequently approved the posting with the permission of the Secretary of Transportation. Almost one year passed from the time Mr. Walker became CTO until the Deputy CTO position was posted. The delay in approving and posting the position was because the position was newly-created and budgetary problems. Throughout most of that time, Mr. Hulsey executed the duties consistent with the Deputy CTO position. (T Vol. I, pp 173-179; Respondent’s Exhs. 1 & 2).

13. On May 29, 2001, the DOT posted an internal vacancy for the Information Systems Director II position (Position No. 00001). The posting indicated that all qualified/interested persons should submit an application to the DOT between May 29, 2001 and June 4, 2001. The position was described as being the Deputy to the CTO and the Director of the IT Project Management Office. In addition to a degree from a four-year college or university, the position required a minimum of seven years of progressive data experience including at least four years of managerial experience directing information resource management programs that involve applications development and hardware and software operations. In the alternative, the position required an equivalent combination of training and experience. As listed in the job posting, the essential functions of the position included being responsible for ensuring that required IT projects provided the CTO and the Information Resource Management Commission accurate and timely project status reports; managing special projects for the CTO; and planning, staffing, training, directing, and managing assigned state employees and contract personnel. The posting also indicated a preference that the applicant be knowledgeable of all aspects of the DOT’s IT, including Project Management, Engineering Programming, and Database Management. (T Vol. I, pp 35, 177-179; Respondent’s Exh. 3)

14. Petitioner, a black female over 40 years of age, submitted an application dated June 4, 2001 for the Deputy CTO position. (T Vol. I, p 36; Respondent’s Exh. 4) Three other persons applied for the position, two black males (one of whom was under age 40), and Mr. Hulsey, who was a white male under age 40. All applicants had promotional priority for the position and were rated “Highly Qualified” by the DOT’s Qualifications Review Unit, meaning they exceeded the minimum qualifications listed on the posting by at least one year. (T Vol. I, pp 36, 45, 181; Respondent’s Exh. 6)

15. Mr. Walker interviewed all four applicants for the Deputy CTO position. He asked each candidate how his or her experience related to the requirements in the job posting and as otherwise explained by him during the interview. Mr. Walker also reviewed and considered each candidate’s application, credentials, performance during the interview, recent job performance, training, and experience. Mr. Walker completed interview records for all of the applicants, including Petitioner and Mr. Hulsey. (T Vol. I, pp 182-183, 189-195; T Vol. II, pp 310-311; Respondent’s Exhs. 8 & 9)

16. Petitioner’s application for the Deputy CTO position was filled with errors and careless mistakes. Petitioner acknowledged that she had written on her application that the earliest date she could begin work was June 2004, which was an error. She also reversed her employment dates and separation dates for various positions and miscalculated the time she spent in certain positions. (T Vol. I, pp 63-72; Respondent’s Exh. 4)

17. In reviewing the position description for the Deputy CTO, Petitioner agreed that accuracy was an important job factor and that errors could have major consequences. (T Vol. I, pp 74-75; Respondent’s Exh. 2)

18. Petitioner had taken computer programming classes at Wake Technical Community College and N.C. State University. She also was attending Saint Augustine’s College at night, majoring in Organizational Management. Petitioner’s employment background is as follows: She began her career with the State in 1971 as a data entry operator with the Treasurer’s Office. Next, she went to the Department of Administration and completed its training program to become a computer programmer. In 1979, she was a computer programmer with the Department of Human Resources. She later served as an analyst programmer, project manager, and database specialist for the Department of Human Resources. In 1991, Petitioner was hired as a database analyst with the DOT. She became an application development manager in 1996 and holds this title today. (T Vol. I, pp 7-22, 27; Respondent’s Exh. 4)

19. At the time Petitioner was considered for the position, she had experience in DB2 databases, business recovery, computer support, and project management. However, she had no experience in web design or web applications. She did not have any experience or knowledge of engineering programming such as CADD, Microstation, Geopak, ProjectWise, and visualization products used by the Division of Highways. She had no experience with Oracle programs or with Oracle database, even though the DOT adopted Oracle as its standard database in 1995. The majority of Petitioner’s work experience at the DOT was with the IST Branch and involved business applications. Based on Petitioner’s lack of experience in several important areas and functions, Mr. Walker believed that Petitioner would need considerable training to reach the level of technical knowledge to perform the duties and responsibilities of the Deputy CTO. (T Vol. I, pp 78-79, 94-96, 172, 188; Respondent’s Exhs. 8 & 10)

20. Mr. Walker interviewed Petitioner for the Deputy CTO position in his office. The interview lasted 45 minutes to an hour. Mr. Walker asked questions from the job posting and took notes. Petitioner also was also given the opportunity to ask Mr. Walker questions about the job. (T Vol. I, pp 37-38, 43, 99, 102-103; Respondent’s Exhs. 7 & 8)

21. Petitioner stated that she had no knowledge about Mr. Hulsey’s qualifications other than he was in the ETS Branch. Finally, Petitioner conceded that although she was qualified for the position, she was not necessarily the most qualified. (T Vol. I, pp 109, 128-129)

22. Mr. Hulsey earned a Bachelor of Science degree in both Computer Science and Applied Mathematics, as well as a Master’s Degree in Civil Engineering. In addition, Mr. Hulsey had a Professional Engineer license. He was a software engineer with Data General Corp. prior to coming to the DOT in 1994. At the DOT, he worked directly for Mr. Walker, first in the ETS Branch and then in the IT Division. Mr. Hulsey had a working knowledge of many development languages including C, C++, Java, Visual Basic, and Fortran. He helped to establish the Oracle database, which became the standard database for the Division of Highways beginning in 1995. He developed engineering applications for many units in the DOT using the MDL, Microstation, and Geopak programs. He developed the DOT’s first web page in 1996 and worked with the ProjectWise document management system. Mr. Hulsey even had been called upon by the Governor’s Office to do work on that office’s database. (T Vol. I, p 172; T Vol. II, pp 303-307, 314-315; Respondent’s Exhs. 5, 9 & 11)