STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

FORSYTH COUNTY 07 OSP 1514

ALVITA C. BYERS )

Petitioner, )

v. )

)

) DECISION

ELIZABETH COX, THE OFFICE OF )

HUMAN RESOURCES AND THE )

NORTH CAROLINA SCHOOL OF THE )

ARTS, )

Respondent. )

______

The above-captioned case was heard before Selina M. Brooks, Administrative Law Judge, on 23-24 February 2009, in High Point, North Carolina. Prior to the presentation of evidence, the undersigned denied Respondent’s Motion To Dismiss And/Or Motion In Limine. At the conclusion of the hearing, the undersigned asked the parties to each submit a proposed decision within thirty (30) days of receipt of the transcript. Both parties have filed proposed decisions.

APPEARANCES

For Petitioner: Geraldine Sumter, Esq.

Ferguson Stein Chambers Gresham & Sumter

741 Kenilworth Avenue Suite 300

Charlotte, North Carolina 28204

For Respondent: John P. Scherer II

Assistant Attorney General

N.C. Department of Justice

P. O. Box 629

Raleigh, North Carolina 27602

EXHIBITS

Admitted for Petitioner: Exhibits 1-4, 8, 9, 12-18, 20, 21, 25, 26

Admitted for Respondent: Exhibits 1-12, 14-26

WITNESSES

Called by Petitioner: Petitioner

Called by Respondent: George Burnette

Elizabeth Ann (“Beth”) Cox

ISSUES

The issues for consideration as stated in the opening statements at this hearing were:

1. Whether the North Carolina School of the Arts discriminated against Petitioner based on her race when it terminated her based on unsatisfactory job performance?

2. Whether the North Carolina School of the Arts retaliated against Petitioner for using her leave under the Family Medical Leave Act?

3. Whether the North Carolina School of the Arts had just cause to terminate Petitioner for unsatisfactory job performance?

FINDINGS OF FACT

On the basis of careful consideration of the testimony presented at the hearing, the documents and exhibits received into evidence, and the entire record in this proceeding, the undersigned finds the following:

1. At the time of her separation, Petitioner was a permanent State employee subject to Chapter 126 of the General Statutes of North Carolina (the State Personnel Act) and is a citizen and resident of Davidson County, North Carolina.

2. Respondent North Carolina School of the Arts (hereinafter “Respondent” or “NCSA”) is subject to Chapter 126 and was the Petitioner’s employer.

3. The NCSA hired Petitioner as a Personnel Technician in 2003. In December 2004, Beth Cox (Caucasian female) was hired as Director of Human Resources and became Petitioner’s supervisor. Cox described the Human Resources Department (“HR”) as in disarray upon her arrival, because all the employees in the section, except Petitioner and a temporary employee, had been removed in the wake of a negative financial audit of the school. At the time, Petitioner was responsible for handling employee benefits, recruitment, classification, and budget. During 2006-07, Cox supervised four employees (1 African American and 3 Caucasian). Presently, Cox supervises five employees (2 African American and 3 Caucasian), and Cox hired all of them for their present positions.

4. Cox first evaluated Petitioner’s performance as a Personnel Technician II in May 2005 and gave Petitioner an overall rating of “Very Good.” In her comments under the category of “Relationships with Others” Cox noted that Petitioner “struggled from time to time” with her campus relationships. Cox determined, however, that after receiving greater clarity of her expectations, Petitioner would alleviate any problems.

5. In the spring of 2005, Cox decided to establish a benefits coordinator position within the HR department. In consultation with Petitioner and another HR employee, Cox developed a work plan, and subsequently advertised the position of benefits coordinator. This position was responsible for administering all employee benefits programs, including enrolling employees in core benefits programs (health, NC Flex), new employee orientations, Federal Medical Leave Act (“FMLA”), worker’s compensation, unemployment, and voluntary shared leave. Petitioner applied for the position because it would be a promotion. After interviewing candidates, including Petitioner, Cox selected Petitioner for the position. Although Petitioner had not exclusively handled benefits issues, Cox believed that with proper training and effort Petitioner was the best candidate to perform the job.

6. After her hiring, Petitioner regularly attended training several times per year for benefits administrators, including State Health Plan benefit training, NC Flex training, and regular benefits administrators’ meetings. Cox also conducted one-on-one meetings with Petitioner and other employees on nearly a weekly basis. In these meetings, Petitioner would bring questions or issues to Cox’s attention for clarification or action, and Cox would delegate responsibilities, answer any questions, and discuss Petitioner’s performance. During Petitioner’s first year in the position, she had issues with overpayments to employees. Petitioner was responsible for completing a PD-105 form which indicated the vacation payout, and other benefit issues for departing employees. Although there were some errors, Cox did not hold Petitioner responsible because of potential confusion between the role of the payroll department versus Petitioner’s role in the process. Cox hoped that everyone could work through the issues.

7. In May 2006, Cox completed Petitioner’s annual evaluation and gave her an overall rating of “Very Good.” According to Cox and the written evaluation, approximately 75% of Petitioner’s job involved administering the benefits program for NCSA. Despite the overall evaluation, Cox believed that Petitioner sometimes struggled with relationships, especially with payroll, and with time management. Cox and Petitioner discussed possible approaches to these problems.

8. In the fall of 2006, Cox received an anonymous letter which complained about promotions and the lack of diversity at NCSA. Cox did not recall if there were specific complaints about her in the letter. Upon receipt of the letter, Cox held a staff meeting. She informed them of the NCSA discrimination/harassment policy and of what measures NCSA took to ensure equal opportunity. Cox also wanted to get staff input on how to address this complaint and on whether this was a common complaint on campus in their discussions with employees. Petitioner volunteered to take responsibility for promoting diversity on campus and for disseminating this information. To foster this effort, Cox sent Petitioner to diversity training, including conferences on diversity in campus communities. Cox asked Petitioner to present a project plan on the training, so Cox could recommend diversity training and plans for the campus. Since this was not Petitioner’s foremost responsibility, Cox granted Petitioner extensions of any deadlines Petitioner set for the presentation of the plan.

9. In January 2007, Cox issued Petitioner a written warning. Cox issued this warning based on a complaint by an employee that Petitioner had discussed his confidential personnel information aloud in the office and conducted a discussion of his benefits with him outside of her office. When Cox issued the written warning, Petitioner apologized, and Cox agreed to remove the written warning if Petitioner’s performance evaluation was overall “good.” Cox has issued written warnings to two Caucasian employees and has terminated a Caucasian employee. She stated that Petitioner’s race played no role in her decision to issue a written warning.

10. In June 2007, Cox completed Petitioner’s annual evaluation and gave her a “Good” overall performance rating. Cox noted in Principal Function #1 of Petitioner’s work plan (Benefits Administration) several issues. For instance, Cox explained that Petitioner had trouble with disability benefits cases, especially regarding communication of necessary information. In addition, Cox noted that Petitioner continued to have difficulty in providing accurate information regarding vacation pay outs. This caused NCSA to have to review and reaudit the entering of this information. As to Principal Function #3 of Petitioner’s work plan (Teamwork), Cox explained that she gave Petitioner a “good” rating due to the prior written warning, i.e., dealing with customers, and Petitioner’s occasional reluctance to receive feedback. Cox did remove the written warning due to Petitioner’s efforts to improve her customer service.

11. In late June 2007, Petitioner submitted a request for FMLA leave. Petitioner and her husband came into Cox’s office and presented her with a note for the period 29 June 2007 through 6 August 2007. The doctor’s note stated that Petitioner was suffering from stress and anxiety. Cox was surprised and she told Petitioner that she hoped she would take care of herself and asked Petitioner if there was any “hot topic” Cox needed to address during the leave period. Petitioner told her that she had gotten her office fairly well organized. Petitioner handled the administration of FMLA leave. Cox was unfamiliar with the program and its requirements so she consulted with NCSA legal counsel to determine if Petitioner’s request met FMLA and NCSA requirements.

12. In early July 2007, Cox attempted to look through Petitioner’s office to ensure that payroll deadlines and exits were in proper order. Petitioner’s office was disorganized and as Cox reviewed the files she became greatly concerned about Petitioner’s job performance. At the same time, Cox consulted with NCSA legal counsel and received an opinion that Petitioner’s medical documentation was insufficient to approve her FMLA leave. Although she had orally approved of Petitioner’s FMLA leave, Cox sent Petitioner a letter on 31 July 2007 that she would not approve Petitioner’s request to extend FMLA leave to 22 August 2007. Petitioner replied by letter dated 5 August 2007. Petitioner disagreed with NCSA’s review of FMLA policies and accused Cox of approving a Caucasian female’s request with similar documentation. Petitioner also accused Cox of race discrimination and mentioned that she “hoped” she would not return to a “hostile work environment.” Neither Petitioner nor anyone else had accused Cox of race discrimination prior to this letter. In addition, Cox noted that Petitioner approved the Caucasian female’s FMLA leave request, and Cox was not involved in the actual review of her FMLA documents.

13. On 9 August 2007, Cox sent Petitioner another letter approving Petitioner’s FMLA leave until 23 August 2007. Cox requested further medical documentation of a serious health condition. Cox, however, noted concern about Petitioner’s behavior when she came into the office. Based on reports from co-workers, Cox stated that Petitioner had asked campus police for an escort to the office and had made comments to co-workers that Cox was “trying to fire me,” and “your husband will be interested to read this case in two to three years.” Cox considered this behavior unprofessional.

14. At the same time Cox sent the 31 July 2007 FMLA letter, she sent Petitioner another letter notifying her of a pre-disciplinary conference for grossly inefficient job performance. Cox decided to send this letter after reviewing Petitioner’s files and consulting with legal counsel. Cox was concerned about several issues including: (1) the disarray and inaccuracy of short-term disability paperwork; (2) documentation issues with the shared leave program; and (3) improper handling of faculty pay and paperwork. Due to approval of Petitioner’s FMLA leave, Cox delayed holding the pre-disciplinary conference until Petitioner’s return. On 24 August 2007, Cox sent Petitioner a letter notifying her of a pre-disciplinary conference later that day. After her 31 July 2007 letter, Cox’s review of Petitioner’s files had revealed more performance issues.

15. Cox believed that several issues within the following programs constituted potential grossly inefficient job performance: (1) short- and long-term disability paperwork; (2) management of the shared leave program; (3) terminations in HRS and in PMIS of faculty on less than 12-month contracts; (4) administration of the FMLA program; (5) unordered employee appreciation gifts; (6) unfilled PD 105's since May 2007; (7) management of retirement benefits; (8) management of the on-line directory.

16. Regarding short- and long-term disability paperwork, Cox noticed that Petitioner failed to properly complete forms, had improperly made several copies of the same document, and had failed to properly terminate an employee from the PMIS system, preventing him from obtaining long-term disability benefits. R. Ex. 10A

17. Regarding shared leave, the school internal auditor had found errors in the shared leave program in May. Cox asked Petitioner to fix the issues, but Cox’s review of the files revealed at least one employee, Bessie Hairston, had in error received double credit for donated leave from employees. R. Ex. 10B

18. As to terminations in HRS and in PMIS of faculty on less than 12-month contracts, Cox stated that Petitioner failed to accurately update the PMIS system files and had improperly terminated faculty members from the PMIS system, potentially causing no payments to these employees over the summer. R. Ex. 10C

19. Regarding administration of FMLA, Cox’s review with the legal counsel revealed Petitioner may have approved FMLA leave without sufficient documentation. R. Ex. 10D

20. After receiving several employee complaints, Cox also found that Petitioner had failed to order or had ordered incorrect employee appreciation awards. R. Ex. 10E

21. Finally, through employee complaints, Cox learned of various document processing errors by Petitioner that impacted employees’ medical and other benefits. R. Ex. 10F

22. After consulting with legal counsel and George Burnette, Chief Operating Officer of NCSA, Cox issued the 31 July 2007 letter. Burnette agreed with Cox’s decision to issue the letter. Cox and Burnette then met with Petitioner for the pre-disciplinary conference on 24 August 2007. During the conference, Petitioner presented her responses to the issues Cox had raised. In essence, Petitioner admitted that some of the items were due to either mistakes or confusion regarding expectations. Based on their discussion, Cox decided that she would give Petitioner a chance to improve her performance and that she would clarify her expectations for Petitioner in writing and by meeting on a regular basis. Burnette concurred with her decision. Cox notified Petitioner of her decision at the conference. R. Exs. 11 & 14

23. Soon after the conference, the Faculty Council at NCSA asked Petitioner to present an update to the faculty on changes or modifications to the benefit plans, including NC Flex. Although Cox was unsure if Petitioner had proper time to prepare for this presentation, she agreed to allow Petitioner to make the presentation based on Petitioner’s assurances that she would be prepared. R. Ex. 12

24. On 7 September 2007, Cox presented Petitioner with a memorandum containing her performance expectations. Cox and Petitioner went over the expectations in a meeting and clarified any confusion. Cox asked Petitioner to present a timeline for accomplishing the assigned tasks. R. Ex. 14