COUNTY OF GUILFORD / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
09 OSP 3923
Kathleen Kicinski
Petitioner,
v.
NC A&T University
Respondent. / )
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)
) DECISION
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The above-captioned case was heard before the Honorable J. Randall May, Administrative Law Judge, on 18 August 2010, in High Point, North Carolina.
APPEARANCES
For Petitioner: Nancy P. Quinn, Esq.
315 Spring Garden Street, Suite 1D
Greensboro, North Carolina 27401
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 1-25 in Petitioner’s Exhibit Notebook
Admitted for Respondent
Exhibits A-HH in Respondent’s Exhibit Notebook
WITNESSES
Called by Petitioner
Lieutenant Garfield Whitaker
Linc Butler
Petitioner
Dr. Dora Brodie, by stipulated admission of her deposition
Called by Respondent
Nanita Cole
Lieutenant Thomas Carl Bland
Major Cindy S. Poole
Chief Glenn Newell
STATEMENT OF THE CASE
The issues for consideration are:
1. Whether Respondent can prove Petitioner was terminated with just cause for unacceptable personal conduct, to wit -refusal to follow a direct order from her supervisor?
2. Whether Petitioner can prove she was terminated because of her race, age, and/or handicapping condition?
3. Whether Petitioner can prove she was terminated in retaliation for her engaging in protected activity, i.e., filing an EEOC complaint?
FINDINGS OF FACT
Based on 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. The Office of Administrative Hearings has personal and subject matter jurisdiction of this contested case pursuant to Chapters 126 and 150B of the North Carolina General Statutes.
2. At the time of her termination, Petitioner (Caucasian female over 40 years old) was a permanent State employee subject to Chapter 126 of the General Statutes of North Carolina (the State Personnel Act) in the North Carolina A&T State University Police Department (hereinafter “the Department”) and is a citizen and resident of Guilford County, North Carolina.
3. Respondent North Carolina A&T State University (“N.C. A&T” or “the University”) is subject to Chapter 126 and was the Petitioner’s employer.
4. During July 2008, Petitioner sought leave under the Family Medical Leave Act (FMLA) based on a serious medical condition. Nanita Cole, (African American female–over 40 years old) the NC A&T Benefits Manager, notified Petitioner on 21 July 2008 that she had been approved for leave under the FMLA from 21 June 2008 until 1 August 2008. Cole also informed Major Cindy Poole (African American female–over 40 years old) that Petitioner had been approved for FMLA. Transcript (T) pp. 17-18, 75; Respondent (R) Exhibit (Ex.) A
5. Petitioner provided a doctor’s note from Dr. Dora Brodie on 31 July 2008, which stated that she was under Dr. Brodie’s care from 23 July 2008 until 4 September 2008 (the date that Brodie stated Petitioner could return to work). On 25 August 2008, Cole, with the concurrence of Petitioner’s supervisors in the Department, approved an extension of Petitioner’s FMLA until 4 September 2008, the date that Petitioner’s FMLA time expired or ran out. At that time, Poole and the other supervisors did not know of any restrictions that Petitioner would have upon her return to work, since the note listed none. Then, on 3 September 2008, Petitioner submitted a Fitness for Duty certification from Dr. Brodie which called for “limited duty not to exceed 8 hours/day 40 hours/week for 8 weeks ending October 31, 2008. I expect pt. to return to full duty afterwards.” T pp. 18-21, 76; R Exs. B & C
6. The University Police Department operates in shifts containing four patrol officers and at least one supervisor. Each shift lasts for about twelve (12) hours: (1) day shift–7 a.m. to 7 p.m.; (2) night shift–7 p.m. to 7 a.m. Department policy calls for the officers to be rotated from a shift approximately every six months. Shift work is an essential part of an officer’s job. Under prior police chiefs, officers stayed on shifts they preferred and shifts were not consistently rotated. In August 2008, the new chief, Glenn Newell, arrived. After he made several changes in the department, Newell began working on the shift change issue. During her time at the department, Poole noted that Petitioner worked both day and night shifts. T pp. 77-78, 80, 119
7. In mid September 2008, Petitioner submitted another note from Dr. Brodie, which stated that Petitioner was able to work “full duty-undetermined” and “should have office duty-Monday-Friday 8-5 p.m. only”. Cole received this note and determined that it differed from the previous 31 July 2008 note from Dr. Brodie, which had set forth no restrictions. Based on this confusion or conflict in Dr. Brodie’s notes, Cole consulted with Petitioner’s supervisors and the Department asked Cole to seek a second medical opinion regarding Petitioner’s fitness for duty. Cole informed Petitioner of the need for a second opinion on 25 September 2008. T pp. 21-25; R Exs. D & E
8. In mid September 2008, Petitioner also met with Poole and Newell. Petitioner asked that she be able to work only on the day shift. Poole and Newell informed her that at that time they needed her to work on the night shift in dispatch. Prior to Newell’s arrival, if officers brought in a doctor’s note seeking a particular shift, the Department would sometimes honor this request. However, it was not an automatic decision. Further, both black and white officers had been handled in this way. According to Newell, there were twenty-four (24) officers and three (3) reserve officers (6-officers were white and 24 were African-American) Under Newell, both black and white officers worked the day and night shifts. Lieutenant Garfield Whitaker, a witness for Petitioner, agreed that both races worked both shifts. In late September 2008, Cole received correspondence pertaining to problems that Petitioner had with obtaining a second medical opinion. Cole talked with Poole, and Poole indicated that she wanted Petitioner to work a regular schedule. Cole informed Petitioner that she was required to get a second medical opinion by mid October 2008. T pp. 26-28, 79-82, 122-25, 172-73; R Exs. F-H
9. Cole reiterated the requirement to Petitioner in a memorandum dated 28 October 2008, and set a deadline of 31 October 2008 for compliance with the request. Petitioner then provided a 29 October 2008 note from Dr. Brodie, which stated that Petitioner was capable of “full-time work from 7 a.m. to 7 p.m.” Dr. Brodie recommended that Petitioner work the day shift temporarily, but further stated that Petitioner was capable of full-time work. Although this letter did not constitute the requested second opinion, Cole testified that the University temporarily allowed Petitioner to work the suggested schedule pending the receipt of the second medical opinion. T pp. 28-31; R Exs. J-L
10. On 31 October 2008, Chief Newell notified Petitioner that she would be temporarily assigned to the day shift from 1 November 2008 through 31 December 2008. Newell and Poole both testified that the department made this assignment in an effort to assist Petitioner while she sought to obtain the second opinion and because the department had a need for Petitioner on the day shift. In addition, Newell attached to his letter a 31 October 2008 letter from Dr. Brodie. Dr. Brodie in her letter claimed that Petitioner had told her that her job was in jeopardy and Brodie further stated, “[i]n light of that information and against my medical advice, I am releasing her to work her schedule without restrictions.” Newell and Cole had no information that Petitioner’s job was in jeopardy and they testified that they were very confused by a letter from a doctor, which released an employee to return to work against the doctor’s own medical advice. At the same time, Poole sent Petitioner a letter reiterating the information in Newell’s letter i.e., assigning her temporarily to the day shift until 31 December 2008. T pp. 31-34, 84-85, 127-30; R Exs. M-N
11. In early December 2008, Cole received a letter from Dr. Kenneth Koch, the second opinion physician. Dr. Koch wrote that Petitioner’s “digestive symptoms are minimal, and she is fit for her police work”. Unlike Dr. Brodie, Dr. Koch placed no restrictions upon Petitioner’s work schedule or hours. When Cole received this letter, she discussed it with Poole. About three months later, Cole received another note from Dr. Koch. This time, Dr. Koch stated that Petitioner still was having gastro-intestinal pain and he advised that she work the day shift for four more months. Since this note differed from the December 2008 note from Dr. Koch, Cole discussed the letter with the department, including whether the department would be able to provide Petitioner the day shift schedule. T pp. 34-38; R Exs. P & W
12. In January 2009, a University employee filed a complaint against Petitioner. The Department investigated and found that the complaint was “un-sustained”. Petitioner received notification of this finding and no negative action was taken toward her. Newell testified that these types of complaints against officers are a normal occurrence and that the department handled this one against Petitioner as it handled many others. In February 2009, Petitioner filed a complaint alleging University, State, and department general order policy violations. Poole investigated Petitioner’s complaints and determined that they were unfounded. T pp. 85-88, 91-92, 133-34; R Exs. Q-R, T-U
13. On 4 March 2009, the University issued Petitioner a written warning for insubordination. According to the department’s investigation, Petitioner was argumentative and used profanity toward her supervisor. Poole watched the videotape of the incident and concurred with the decision to issue a written warning. Poole did not support any harsher discipline because Petitioner quickly admitted she was wrong. Newell concurred with the decision. In her hearing testimony, Petitioner admitted that she cursed at her supervisor. Poole is aware that other officers in the department have received written warnings for insubordination, including men and African Americans. T pp. 92-94, 139, 252-53; R Ex. V
14. A few days later in March 2009, Petitioner filed a complaint with Whitaker about the mishandling of a doctor’s note by Sergeant Ben Brown. Whitaker asked Lieutenant T. C. Bland (African American male) to investigate the complaint. Bland spoke with Brown and Petitioner. He could not confirm that Brown had inappropriately left the note on the patrol workstation. Based on this recommendation, the department issued notice to Brown and Petitioner that the complaint was not substantiated. T pp. 48-53, 96-97; R Exs. Y-Z
15. In early April 2009, Cole received another letter from Dr. Brodie. The letter recommended that Petitioner work only day shift with no overtime. While Cole discussed the letter with the Department, she did not personally intervene in the situation because the Department handled Petitioner’s request for particular shift work. As Cole understood it, the department did not have the shift work available for Petitioner. Newell testified that in the fall, the Department had some day shift work available, but during early 2009, the Department needed her on the night shift. In July 2009, the Department was scheduled to undergo a rotation change, and Newell intended to rotate the shifts with Petitioner and the other night shift employees returning to the day shift. T pp. 38-40, 141-43; R Ex. AA
16. During the evening of 14 May 2009, Bland conducted the shift briefing to department officers. Bland was filling in for Whitaker on this particular evening. Bland informed Officer Cash and Petitioner that they were scheduled to work the track meet scheduled for Saturday morning, 16 May 2009. He also told Petitioner that she could leave her shift a bit early because she had firearms training on Friday afternoon, 15 May 2009. Petitioner responded that she would not be able to make the firearms training because she had her grandchildren. She further replied, “Not me”, when Bland told her about working the track meet. Petitioner told Bland that she could not work the track meet on Saturday because she did not work overtime based on a doctor’s note. Bland agreed to call his supervisors and find out their responses to these issues. T pp. 53-57; R Ex. CC
17. While he awaited return calls from his supervisors, Bland asked Petitioner to sit with him in the interview room. One of his supervisors, Captain Barry Black, returned Bland’s call and gave Bland answers to these questions. Black told Bland that the firearms training would be canceled and rescheduled for a later date. Black also told Bland that Petitioner still had to work the track meet as scheduled. Bland repeated Black’s comments aloud to Petitioner as he finished the phone conversation. After he got off the phone, Bland reiterated the instructions to Petitioner. He again told her that she did not have to worry about the firearms training, but she had to work the track meet as scheduled. Petitioner again responded that she did not have to work overtime due to the doctor’s note. Bland, however, told her that she had only worked twelve (12) hours that week and was not even close to a full forty (40) hour workweek. At the close of the conversation, Bland told her that if she failed to show up for the track meet, she would have to face the consequences of such a decision. T pp. 57-61; R Ex. CC