STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 08 OSP 2293
SHARON ANNETTE MERCER,
Petitioner
v.
N.C. DIVISION OF MOTOR VEHICLES,
Respondent.
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DECISION
THIS MATTER came on for hearing before the Honorable Joe L. Webster, Administrative Law Judge on April 21-22, 2009 in Raleigh, North Carolina. After considering the allegations in the Petition, the testimony of the witnesses, and the documentary evidence and exhibits admitted, the undersigned makes the following DECISION:
APPEARANCES
For the Petitioner:
Angela Newell Gray, Attorney at Law
Gray Newell & Johnson, LLP
7 Corporate Center Court, Suite B
Greensboro, North Carolina 27408
For the Respondent:
Kathryne E. Hathcock, Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, North Carolina 27699
ISSUES
1. Did the Petitioner timely file her Petition with regard to all five Notices of Rejection from the License and Theft Bureau?
2. Was Petitioner denied promotions because she is female?
EXHIBITS
Petitioner’s Exhibits #1
Respondent’s Exhibits A-D, K-GG.
WITNESSES
Petitioner called as witnesses: Petitioner and Ms. Georgia Warren.
Respondent called as witnesses: Dawn Godwin, Lieutenant Colonel Greg Lockamy, Major Neil Callahan, Captain Keith King, Amanda Olive, Captain Charles Irvin, and Captain Norman Blake.
DECISION – TIMELINESS OF FIVE APPEALS
After considering the briefs submitted and arguments of counsel along with all relevant cases, statutes and rules submitted, the undersigned finds as follows: that of the five appeals, Petitioner abandoned her appeals of two cases which have not been filled by Respondent and these two cases are dismissed with prejudice. Of the three remaining appeals, the undersigned finds that Petitioner timely appealed the law enforcement supervisor position in Wake County (“Santiago Position”) The “Hayes Position” and “Butler Position” appeals were not timely and therefore the Office of Administrative Hearings lacks subject matter jurisdiction to hear these two appeals and are dismissed with prejudice. Although the undersigned has ruled that this Court lacks jurisdiction to hear the Butler and Hayes appeals, for the sake of clarity by reviewing tribunals, the undersigned also finds facts and conclusions of law relating to the Butler and Hayes appeals.
FINDINGS OF FACTS
1. The parties stipulated to adequate notice of the hearing.
2. On October 9, 2008, Petitioner filed a Petition for Contested Case Hearing pursuant to N.C.G.S. '' 126-34.1 and 126-37. In her Petition, Petitioner alleged sex discrimination in failure to promote. Specifically, Petitioner alleged, “I have applied for numerous positions since May, 2008 within the agency and have been rejected each time even though I was qualified for the positions. In some instances, I have not even been interviewed. Male colleagues with equal or less qualifications were interviewed, considered and ultimately hired to these positions.” See Petition.
3. The Department of Transportation (“DOT”) is a State agency that employs over 14,000 employees and whose work is divided among seven (7) divisions, each addressing different modes of transportation: Aviation, Bicycle & Pedestrian, Motor Vehicles, Ferry, Highways, Public Transportation, and Rail.
4. The Division of Motor Vehicles (hereinafter “Respondent”) employs 1,627 employees and is responsible for driver licensing, vehicle registration, license plates, and law enforcement responsibilities relative to the agency. The agency is divided into two divisions, the Driver’s License/ Registration division and the License and Theft Bureau. NCDMV is largely composed of male employees. (T p. 322, 324).
5. The License and Theft Bureau is a para-military organization that currently employs approximately one hundred and eighty three sworn law enforcement officers. The officers are ranked by importance in the order of Inspector (entry level), Lieutenant, Captain, Major, Lieutenant Colonel and Colonel.
6. Approximately 12-15 females (9-10%) hold sworn law enforcement positions within the License and Theft Bureau (T pp 108, 167). Most of the 12-15 female law enforcement officers are relatively new hires, and three of the females (approximately 25%) occupy supervisory positions. (T pp 108, 111). Seven or eight of the female officers have never applied for a promotion. (T p 118).
7. The national average for women in entry-level law enforcement positions is approximately 14.1%. Captain Keith King testified that The License and Theft Bureau’s 9-10% ratio is below the national average because the agency only hires seasoned law enforcement officers with a minimum of two to three years of investigative or basic law enforcement experience. (T pp 167-168).; that approximately 50% of the Bureau’s Inspectors have been hired within the past five years, including eleven or twelve of the currently employed Inspectors (T p 168), and that only three females within the License and Theft Bureau have greater than five years’ experience with the agency. (T p 170). Captain King also testified the License and Theft Bureau is in the process of rewriting some of its policies relating to recruitment; that the policy has been under review in 2006 and 2007 and that a draft has been proposed for 2009. Captain further testified hat he has been promoted three times since 2000 and Petitioner has not been promoted at all since 2001. (T pp 172-173) (However see Paragraph #8 below). Considering the deplorable demographics of DMV, Captain King curiously testified that “in 2006, there was an issue addressed that we were slightly underrepresented in protected classes, being any minority class or gender-specific class.” (T p 173).
8. In September 2001, Respondent Division of Motor Vehicles hired Sharon Annette Mercer (hereinafter “Petitioner”) as an Enforcement Officer in the License and Theft Bureau. In June 2004, Petitioner was promoted to the entry-level position of Inspector. (Ex. N p. 4).
9. Prior to 2008 Petitioner had not applied for promotions but that year she began seeking advancement within the License and Theft Bureau. See Petition. Of the five positions that she applied for in 2008, the Petitioner did not meet the minimum supervisory experience qualifications for one (hereinafter “Butler position”). (Ex. B).
10. Petitioner was interviewed and considered for the remaining two positions (hereinafter “Santiago position” and “Hayes position”).
Santiago Position
11. The License and Theft Bureau posted a position from June 24-July 1, 2008 seeking a law enforcement supervisor for its Fraud Investigations Unit at Raleigh Headquarters (“Santiago position”). (Ex. K, T p 26).
12. The above-mentioned Fraud Investigations Supervisor position had been previously located in District II (Cumberland County) and had been occupied by Captain Diego Santiago. Because management felt that the position would best serve the License and Theft Bureau if it was instead located at Headquarters, it was posted on the Office of State Personnel website as a Raleigh-based new position. (T pp 82-83, 93). There is no longer a Fraud Investigations Supervisor position located in District II. (T pp 118-119).
13. After the posting for the Fraud Investigations Supervisor closed, the Department of Transportation’s Human Resources Department screened the applications without input, involvement or influence from the Division of Motor Vehicles. (T pp 43-44, 54, 57, 60). At the conclusion of its screening process, the Department of Transportation determined that eight applicants were most qualified and had promotional priority, and that two applicants (not including Inspector Mercer) also had veterans’ preference priority in addition to promotional priority. (T p 27).
14. Amanda Olive, Assistant Manger for the DOT Salary Administration, Qualification Review and Alternative Pay Systems, testified that the Department of Transportation Human Resources Department considered Captain Santiago’s application to be complete even though he had failed to indicate whether he had any convictions on his criminal record. (Ex. M). Amada Olive also testified that the error was made on the part of DOT Human Resources, and there was no requirement for DMV to check behind DOT. (T p 181). Further Ms. Olive admitted, “The personnel technical just missed it, so it is an error on our [DOT’s] part.” When asked if DMV did anything wrong in allowing Captain Santiago to proceed through the interview process, Assistant Manager Olive emphasized, “No. The error was in the DOT HR Office.” When questioned further by the Undersigned regarding the relationship between DOT and DMV, Assistant Manager Olive clarified, “At the point in time that these applications were done, the DOT Human Resources Office was solely responsible for the qualification review and then the determination of the applicants being qualified, most qualified, etc., so it would have been a DOT mistake, and [DMV] would not - I mean if we sent it over to them that way [DMV] wouldn’t have questioned it. That would have been an error on our part.” (T pp 198-199).
15. After completing the initial screening process, the Department of Transportation Human Resources Department forwarded the screened applications and evaluation report to the Division of Motor Vehicles Personnel Office so that the hiring process could begin. (Ex. L, T p 79). It was not the policy of DMV to review the applications for a second time or second-guess the initial screening decisions of DOT. (T p 57). The DMV personnel technician simply “would receive [the applications from DOT] and would...take all of the most qualified [applications]...in a packet and send it to the manager [for interviews].” (T p 57). Panel members automatically assumed that if they were given an application that had been pre-screened by DOT and a candidate to interview, that the candidate’s application was complete. (T p 144).
16. Among the eight qualified applicants for the Fraud Investigations Supervisor were Inspector Mercer, Inspector (now Lieutenant) Otto Hayes, and Captain Santiago. (Ex. L). The promotion would have been at least a four step promotion for Inspector Mercer, but only a lateral transfer for Captain Santiago. (T pp 55-56, 84-85). Respondent’s evidence suggested that it is unusual for an Inspector to obtain such a promotion to Captain without first serving as a Lieutenant, because the approximately thirty supervisory positions within the Bureau are very competitive, and it often “takes numerous times to apply before being promoted.” (T pp 56, 73, 78, 114, 168-169).
17. DMV Personnel Manager Dawn Godwin, Lieutenant Colonel Greg Lockamy and Major Neil Callahan were selected to serve on the interview panel for the Santiago position. (T pp 33, 79, 93). Each of the three members had served on at least one prior on interview panels, and each had no problem hiring a female into a supervisory position assuming she was the most qualified candidate. (T pp 40, 58, 77-78, 93). Dawn Godwin, a female, was selected chairwoman and assumed the leadership role during the interview and selection process. (T p 30).
18. As Manager of the License and Theft Bureau Training and Accreditation Unit, panel member Major Callahan was very aware of the need to hire protected classes and expand the demographic makeup of the agency. (T p 158).
19. Chairwoman Godwin, Lieutenant Colonel Lockamy, and Major Callahan first reviewed the qualified candidates’ applications before starting each of the eight interviews. (Exs. M and N, T pp 30-32, 133).
A. In reviewing Captain Santiago’s application, Chairwoman Godwin noted that he had progressive law enforcement experience and that he had held prior supervisory positions within the License and Theft Bureau. (T p 30). In reviewing Inspector Mercer’s application, Chairwoman Godwin noted that she did not have progressive law enforcement experience. (T p 32). Chairwoman Godwin did not give any consideration to the fact that Captain Santiago is male or that Inspector Mercer is female. (T pp 30-32).
B. In reviewing Captain Santiago’s application, Lieutenant Colonel Lockamy reviewed his education, special training programs and seminars that he attended, and his licenses and certifications, in addition to his work history. In reviewing Inspector Mercer’s application, Lieutenant Colonel Lockamy noted that she had an associate’s degree, and he reviewed special training programs that she attended in addition to her work history. (T p 81).
C. In reviewing Captain Santiago’s application, Major Callahan took note of his education, prior work history and experience, and his training, and Major Callahan was aware that Captain Santiago “was in charge of a team out of Cumberland County.” (T pp 134, 160). In reviewing Inspector Mercer’s application, Major Callahan reviewed her education, job history and work experience. (T p 135).
20. Santiago had an associate’s degree in Criminal Justice, and BLET. (T p 30). He did not graduate from High School, rather he received his GED. (T p 47). He was not certified as an Instructor. Godwin admitted that at the time of the interview, Mercer had more education than Santiago, more law enforcement experience, as an instructor and had BLET. ( T p 50). Godwin testified, “it was considered, you know, that she did have some additional education, but then at the same time, you have to weigh that with the experience, the type of experience.” (T p 48-49). The fact that Mercer had more years of employment with DMV than Santiago was also not a concern of Godwin’s, and the fact that Mercer had more overall law enforcement experience than Santiago and was working at the advanced level did not matter to Godwin. (T p 45-46, 359). Godwin also testified on cross examination that she was not aware that Mercer was certified as a criminal justice instructor and Santiago was not. (T p 48)
21. Each applicant was asked the same set of interview questions, and he or she was given a written copy of the questions during the interview to follow along. (Exs. O-P and R-U, T pp 33, 103). Panel members took independent notes of each candidate’s performance and responses during his or her respective interview. (Ex. O-P and R-V, T pp 33, 105).
22. There were no guidelines for the interview process and the interview questions were prepared by Bozard and Lockamy. (T p 68). Lockamy testified that prior to the Santiago interview process, DMV usually had a five (5) member interview panel which was trained on the interviewing and grading process. However that process was no longer followed when the Santiago position was filled. Consequently, there was no training, no grading guidelines and no guidelines on how to conduct the interview (T p 98-101, 104).
A. Chairwoman Godwin explained that Captain Santiago, “was very good at relating his experiences from his current job as well as his previous positions to the position that he was applying for. His answers were very detailed, and...complete.” Chairwoman Godwin was impressed that Captain Santiago had experience directly relevant to the position for which he was applying and that he was able to “communicate a lot of depth, understanding of - investigations and covert operations.” (T pp 34-35). With regard to Inspector Mercer’s interview, Chairwoman Godwin explained that Inspector Mercer “did not bring out a lot of her experiences and relate them to the questions that were asked,” and that Inspector Mercer lacked a lot of experience with investigations and undercover operations. (T p 37).