STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF GUILFORD 08 OSP 2945 & 09 OSP 2642
______
D. RENEE BROOKS, )
Petitioner, )
v. )
N.C. DEPARTMENT OF HEALTH ) DECISION
AND HUMAN SERVICES, DIVISION )
OF VOCATIONAL REHABILITATION, )
______Respondent.______)______
This matter came on for hearing before the Honorable Selina M. Brooks, Administrative Law Judge on August 27, 2009 in Greensboro, North Carolina and on September 16, 2009 in High Point, North Carolina.
APPEARANCES
Petitioner: Nancy P. Quinn, Esq.
Law Offices of Nancy P. Quinn
315 Spring Garden Street, Suite 1D
Greensboro, NC 27401
Respondent: Kathryn J. Thomas
Assistant Attorney General
North Carolina Department of Justice
P.O. Box 629
Raleigh, NC 27602
ISSUES
1. Whether Respondent had just cause to terminate Petitioner from her employment as a Rehabilitation Counselor I on October 30, 2008.
2. Whether Respondent subjected Petitioner to unlawful workplace harassment.
3. Whether Respondent terminated Petitioner based on her race or disability.
WITNESSES
Respondent: Toni King
Dennis Seymour
Veta Cooper-Henderson
Rebecca Parks
Betty Maher
Petitioner: D. Renee Brooks
EXHIBITS
Respondent : CW1 through CW101 Case Work documents
DI1 through DI14 Disciplinary documents
FI1 through FI21 Failure to Follow Instructions
CC1 through CC7 Client Complaint documents
PI1 and PI2 Productivity Issues
Petitioner: P1 – Job Description for Vocational Rehabilitation Counselor I
P2 – 9/28/08 Email to Renee Brooks regarding Guest Speaker for Foundations Counseling Class
P3 – 5/2/07 Letter to Veta Cooper-Henderson from Renee Brooks
FINDINGS OF FACT
1. Petitioner, Delanor Renee Brooks, was employed by the Division of Vocational Rehabilitation Services (VR) as a Rehabilitation Counselor I in the Winston-Salem office from April 23, 2003 through October 30, 2008
2. Petitioner transferred from the Winston-Salem office to the Greensboro office in 2005.
3. Vocational Rehabilitation Services provides services to people with chronic, disabling conditions to help them to obtain or maintain employment.
4. VR counselors are assigned to serve a specific population such as individuals with general disabilities, deaf or hard of hearing, mental health or developmental disabilities. Petitioner was assigned a developmental disabilities caseload which includes adults over the age of 22 with severe mental retardation.
5. The job responsibilities of a Rehabilitation Counselor I include: managing a caseload; meeting with clients; obtaining medical records to determine eligibility; performing comprehensive assessments of the client’s needs, interests, strengths and abilities; writing individualized plans for employment (IEPs); working with community partners; managing paperwork; and providing counseling services to the clients.
6. Standards for processing client services are determined by the Rehabilitation Services Administration (RSA). The RSA oversees the administration of the program and audits VR for compliance with federal regulations. VR is required to meet federal timelines for various stages of a case and to maintain and report statistics concerning compliance with these timelines. For example, VR must determine a potential client’s eligibility for VR services within 60 days of receiving an application.
7. While in the Winston-Salem office, Petitioner received on-the-job training for approximately six months, and then attended Casework Orientation and Skills Training (COAST), required for all new VR counselors. Petitioner failed COAST the first time, but passed COAST the second time. R. Ex. DI1
8. After a year on the job, Petitioner continued to make errors in her files that required a supervisor’s corrections, had difficulty managing her time, and attending appointments. She did not maintain her case files in proper order according to unit policy, and her files contained duplicate copies of papers or had papers missing.
9. Petitioner received close supervision to coach her in an effort to improve the accuracy of her work and improve time management. The number of errors in Petitioner’s case files resulted in Petitioner spending additional time making corrections which negatively affected her productivity. There was no significant improvement in Petitioner’s ability to manage her caseload and produce appropriate outcomes for clients.
10. Petitioner was able to keep her caseload in compliance with only some of the federal timelines. She tended to spend time accepting applications and determining eligibility, but not in writing IEPs and, ultimately, placing clients in jobs.
11. Petitioner never complained that she felt she was being harassed by her supervisor or that she was being discriminated against for any reason.
12. Petitioner transferred to the Greensboro office in March 2005 where she was assigned to the School Program to work with specific schools.
13. Petitioner is African-American. The unit manager for VR in Greensboro is African-American. The VR staff included 10-12 African-American members.
14. Petitioner was chronically late for work, even after her work schedule was changed to accommodate her.
15. Petitioner was frequently late for meetings and missed appointments.
16. Initially, Petitioner made the mistakes expected of a new counselor, but her work never improved. Petitioner had difficulty meeting the productivity goals. Petitioner’s files could not be approved by her supervisor and were returned to her for corrections because of numerous errors.
17. A Documented Counseling Session was held on March 13, 2007 concerning Petitioner’s failure to meet goals, and to set expectations for improvement. R. Ex. DI3a-d The counseling session addressed performance discrepancies, strategies that had not shown significant improvement in job performance, and new issues that had arisen concerning client/parent complaints and casework. Future expectations and strategies to achieve these expectations were given, including weekly meetings with her supervisor.
18. On April 17, 2007, Petitioner was given a Written Warning for Unacceptable Personal Conduct for failing to notify her supervisor of her whereabouts. R. Ex. DI4a-b
19. In May 2007, Petitioner was given a Below Good on her Performance Evaluation 2006-2007 and was required to have a quarterly meeting with the unit manager to review her progress. The evaluation noted several deficiencies primarily related to moving cases in a timely manner, failure to obtain authorization for services, and failure to stay in contact with clients. The improvement plan included additional training, meeting goals, working on time management, and meeting with her supervisor. R. Ex. D12a-l
20. In July 2007, Petitioner met with her supervisor and was given a Work Plan with specific goals, similar for all school counselors, which included a development plan with standards by which Petitioner would be evaluated. R. Ex. DI5j
21. On October 23, 2007, Petitioner was given a second Written Warning for Unacceptable Personal Conduct and Unsatisfactory Job Performance for failing to notify her supervisor of her whereabouts, not taking timely action on her caseload, and not meeting production expectations. R. Ex. DI6a-c The action was supported by specific facts and data. Expectations for improved job performance were itemized. Petitioner appealed this Written Warning and, after a meeting on November 13, 2007, the warning was upheld. R. Ex. DI7a-b
22. Ms. Maher is white and she supervises 4 African-American counselors, 1 African-American office assistant, one white office assistant, and one white business representative.
23. Ms. Maher made repeated attempts to assist Petitioner with her casework. R. Ex. CW1-100
24. Petitioner never complained that she was being treated differently or discriminated against for any reason.
25. Petitioner never complained that she was being harassed.
26. Petitioner had made her supervisor aware that she had high blood pressure and carpal tunnel syndrome, but never claimed that these conditions rose to the level of a disability.
27. At Petitioner’s request, she was assigned a new supervisor, Ms. Parks, on November 13, 2007.
28. Ms. Parks gave Petitioner a checklist for all documents required for a file before it could be approved. She reviewed Petitioner’s files until July 2008 and noted deficiencies. R. Ex. CW28a-m Various strategies were employed to improve Petitioner’s job performance. R. Ex. CW4, 83-87, and 93a
29. On May 30, 2008, a meeting was held with Petitioner to review her job performance since the October 23, 2007 Written Warning. Performance deficiencies were described and performance expectations explained. R. Ex. DI8a-g and DI9a-b
30. A Pre-Disciplinary Conference was held on October 28, 2008 to determine whether or not Petitioner should be dismissed based on unsatisfactory job performance. Petitioner was given an opportunity to provide information and respond to the recommendation for dismissal. R. Ex. DI10a and DI11a-t
31. After the Pre-Disciplinary Conference the decision was made to dismiss Petitioner. The basis of the termination was unsatisfactory job performance including low productivity, poor casework management, and inadequate casework documentation. R. Ex. DI11b-d
32. After Petitioner was terminated, Ms. Parks performed a further case review and found many additional deficiencies in Petitioner’s cases. R. Ex. CW75a-j
33. Petitioner failed to adhere to the program policies and procedures in providing services to VR clients.
34. Petitioner’s failure to timely manage her caseload hindered the appropriate delivery of VR services to clients who needed them.
35. Petitioner’s failure to communicate effectively with her supervisors and her clients additionally hindered her ability to provide delivery of those services.
36. Petitioner was given numerous opportunities to improve her performance. Her supervisors attempted to provide her with different mechanisms for improving her performance, but her work did not improve.
CONCLUSIONS OF LAW
1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapters 126 and 150B of the North Carolina General Statutes and has the authority to issue a Decision to the State Personnel Commission (“SPC”) which shall make the final decision.
2. Petitioner was a career state employee subject to the State Personnel Act at the time of her dismissal. N.C.G.S. § 126-1.1.
3. “In order to be dismissed for a current incident of unsatisfactory job performance an employee must first receive at least two prior disciplinary actions. First, one or more written warnings followed by a warning or other disciplinary action which notifies the employee that failure to make the required performance improvements may result in dismissal.” 25 N.C.A.C. 1J. 0605(b).
4. Petitioner received a documented counseling, two written warnings, and a pre-discplinary conference concerning her unsatisfactory job performance and unacceptable personal conduct prior to her dismissal. These actions comply with the procedural requirements for dismissal for just cause.
5. Petitioner’s procedural rights were not violated.
Just Cause Claim
5. “No career State employee subject to the State Personnel Act shall be discharged. . . for disciplinary reasons, except for just cause.” N.C.G.S. § 126-35(a). “In contested cases conducted pursuant to Chapter 150B . . ., the burden of showing that a career State employee subject to the State Personnel was discharged . . . for just cause rests with the department or agency employer.” N.C.G.S. § 126-35(d).
6. “Disciplinary actions . . . are those actions taken in accordance with the disciplinary procedures adopted by the State Personnel Commission (SPC) and specifically based on unsatisfactory job performance, unacceptable personal conduct or a combination of the two.” N.C. Gen. Stat. § 126-35(b).
7. SPC regulations further provide, in pertinent part, that “[a]ny employee, regardless of occupation, position or profession may be warned, demoted, suspended or dismissed by the appointing authority. Such actions may be taken against career employees as defined by the State Personnel Act, only for just cause. The provisions of this section apply only to employees who have attained career status. The degree and type of action taken shall be based upon the sound and considered judgment of the appointing authority in accordance with the provisions of this Rule. When just cause exists the only disciplinary actions provided for under this Section are: . . . (4) Dismissal.” 25 N.C.A.C. 1J .0604(a).
8. SPC regulations further define the grounds for dismissal. 25 N.C.A.C. 1J .0604 provides in part:
(b) There are two bases for the discipline or dismissal of employees under the statutory standard for "just cause" as set out in G.S. § 126-35. These two bases are: (1) Discipline or dismissal imposed on the basis of unsatisfactory job performance, including grossly inefficient job performance. (2) Discipline or dismissal imposed on the basis of unacceptable personal conduct.
(c) Either unsatisfactory or grossly inefficient job performance or unacceptable personal conduct as defined in 25 N.C.A.C. 1J. 0614 of this Section constitute just cause for discipline or dismissal. The categories are not mutually exclusive, as certain actions by employees may fall into both categories, depending upon the facts of each case. No disciplinary action shall be invalid solely because the disciplinary action is labeled incorrectly.
9. “Unsatisfactory Job Performance” is defined as “Work-related performance that fails to satisfactorily meet job requirements as specified in the relevant job description, work plan, or as directed by the management of the work unit or agency.” 25 N.C.A.C. 1J. 0614(j).
10. In North Carolina Department of Environment and Natural Resources, Division of Parks and Recreation v. Carroll, 358 N.C. 649, 665 (2004) the North Carolina Supreme Court stated: “Determining whether a public employer had just cause to discipline its employee requires two separate inquires: first, ‘whether the employee engaged in the [unacceptable personal] conduct the employer alleges,’ and second, ‘whether that conduct constitutes just cause for [the disciplinary action taken].’” citing Sanders v. Parker Drilling Co., 911 F.2d 191, 194 (9th Cir. 1990), cert. denied, 500 U.S. 917, 114 L. Ed. 2d 101 (1991)
11. Respondent proved by a preponderance of the evidence that it had just cause to dismiss Petitioner for unsatisfactory job performance.
12. Respondent did not act erroneously, arbitrarily, capriciously or otherwise prejudice Petitioner’s rights when it dismissed Petitioner.
Workplace Harassment Claim
13. A state employee may file a petition for contested case hearing based on unlawful workplace harassment based on N.C.G.S. § 126-34.1(10) which prohibits “[h]arassment in the workplace based on upon age, sex, race, color, national origin, religion, creed, or handicapping condition, whether the harassment is based upon the creation of a hostile work environment or upon a quid pro quo.”
14. 25 N.C.G.S. § 126-34 requires that an employee must file a written notice to the employer of his harassment claim prior to filing a petition for contested case hearing.
15. 25 N.C.A.C. 01I .2310(a) provides in pertinent part: “…Grievances which allege unlawful workplace harassment must be submitted in writing to agency management, within 30 calendar days of the alleged harassing action, and the agency must be given 60 calendar days in which to take remedial action. …”