STATE OF NORTH CAROLINAIN THE OFFICE OF

ADMINISTRATIVE HEARINGS

10 OSP 6533

COUNTY OF WAKE

CHARLOTTE BOYD,)

Petitioner,)

)

v.) DECISION

)

NORTH CAROLINA DEPARMENT)

OF TRANSPORTATION,)

Respondent.)

This case came for hearing before Administrative Law Judge Joe L. Webster in Raleigh, North Carolina on the 21st day of February, 2011.

APPEARANCES

For Petitioner: Michael C. Byrne

WachoviaCapitalCenter

Suite 1130

150 Fayetteville Street

Raleigh, NC27601

For Respondent:Tammera Hill

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, NC27602

WITNESSES

Petitioner Respondent

Charlotte Boyd Charlotte Boyd

Lori Kroll

Michael Robertson

Joseph John

Melody Penny

Tina Raynor

ISSUE

Whether Respondent had just cause to dismiss Petitioner from employment as

Administrative Officer III on the grounds of unacceptable personal conduct?

PETITIONER EXHIBITS

1,2, 3, 4, 4B, 5, 6, 7, 8, 8A, 8B, and 8C

RESPONDENT EXHIBITS

1, 2, 4, 5, 6, 7, 8, 10, 11, 12, 13, and 14

BASED UPON consideration of the sworn testimony of the witnesses presented at the hearing, the documents, and exhibits received and admitted into evidence, and the entire record in this proceeding, the Court makes the following Findings of Fact. In making these Findings of Fact, the Court has weighed all evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including, but not limited to the demeanor of the witnesses, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. Petitioner Charlotte Boyd, a career employee, was discharged for disciplinary reasons from her position as an Administrative Officer III with Respondent North Carolina Department of Transportation (“Respondent”) on August 3, 2010. Petitioner had nine years of service. T. 9. Petitioner had never received any formal discipline in her nine years of employment with DMV. T. 255. She had outstanding performance reviews. T. 256. Other than in this case, there is no evidence that the Petitioner’s honesty or conduct has ever been called into question during her employment with DMV. T. 256.

2. Petitioner’s duty station was in WakeCounty in the DMVBuilding on New Bern Avenue. T. 10. There were other people with the same title and similar duties working in the western and eastern thirds of the state; however, Petitioner did not do the same amount of work-related driving as those other two officers even though it appears to have been contemplated at one time that she would do so. T. 11. Petitioner assumed her position through a promotion in July 2008. T. 11.

3. Both Petitioner and the other two hearing officers were issued state-owned vehicles that were supposed to be permanently assigned to them. T. 11. Petitioner’s counterparts in the eastern and western parts of the state commuted in their state cars and parked the cars at home. T. 241.

4. At the time of such issuance in 2008, Petitioner was supervised by Joseph “Judge” John. As of the date of her dismissal she was supervised by Lori Kroll. T. 12.Judge John did recall some discussions with Petitioner at around the time the car was issued of her potentially supervising officers away from DMV headquarters. T. 165-166.Judge John recalled some hearing officers located throughout the state who were under Petitioner’s supervision. T. 166.

5. Petitioner learned that she was to be assigned a state vehicle shortly after her promotion when she received a message note that her vehicle was ready to pick up from “Judge John”.[1] T. 12. Petitioner did not ask John or anyone else to be assigned the vehicle. T. 12.

6. When Petitioner came to pick up the vehicle, she was handed a form and told to sign it. She did so. T. 12. Petitioner did not have to go through any kind of tutorial related to the vehicle. T. 12. The person who gave Petitioner the vehicle was Melody Penny. Petitioner testified that Penny gave her the form and told her to sign it. T. 13. Penny works with DMV License and Theft Supply Logistics. T. 173.[2]

7. The form Petitioner signed was a Form FM-30. The form incorrectly listed Petitioner’s job duties and scope of supervision. These “false statements” were cited by Respondent as a reason for dismissing Petitioner. See Petitioner’s Exhibit 1, Interrogatory Responses, P. 6-7; Petitioner’s Exhibit 8C, Dismissal Letter. The Form FM-30 regarding Petitioner’s car was subsequently approved by The Form FM-30 was subsequently approved by the Director of License and Theft, the Commissioner of DMV, and DMV Motor Fleet Management after Petitioner signed it. T. 72-73.

8. Petitioner did not fill out the form. Penny typed in all the information on the relevant FM-30 (Petitioner’s Exhibit 3 and Respondent’s Exhibit 1). T. 175. Penny said she obtained the address information from Petitioner’s driver’s license. T. 175.

9. Petitioner said she did not read the form, thinking it was only a form to pick up the car. Penny said Petitioner read and signed the form. The form states that the person signing it indicates it is accurate.[3]Petitioner said that while Penny asked her to sign the Form FM-30, she did not ask her to read it. T. 243.

10. Penny did not recall where the position title information came from. T. 176. She likewise said she could not recall where she obtained the information as to where the car would be used. T. 176. However, in neither case did the information come from Petitioner. T. 187.

11. Petitioner never held herself out as director of hearings for DMV. T. 237. She never held herself out as supervising hearing officers across the state. T. 237. Petitioner did oversee hearing officers in her area, the “Central Region”. T. 238.

12. No one queried Petitioner about the form FM-30 until Kroll asked Petitioner about it nearly two years later at a pre-disciplinary conference. T. 244. Kroll did not participate in the decision to issue the car to Petitioner or in the issuance of the car. T. 66.Petitioner does not recall getting a copy of the form until 2010 when she was undergoing the disciplinary process.

13. Kroll admitted that while she accused Petitioner of making false statements on the Form FM-30, she did not know who filled out the form and did not know who provided the information to fill it out. T. 76. However, in the next set of questions Kroll changed her testimony to reflect that she actually did know Petitioner did not fill out the FM-30:

Q. And did you learn from them [Petitioner and Melody Penny] who filled out this form?

A. Yes.

Q. All right. Who filled out this information on the form, then?

A. I believe Ms. Penny filled in the form. It’s an electronically generated form.

T. 77.

14. Kroll then became slightly more emphatic when asked a third time about the origin of the FM-30 information:

Q. A form we both agree was filled out by someone else?

A. Yes.

T. 77-78.

15. The point is particularly relevant as Kroll subsequently admitted that she made an accusation that Petitioner made false statements on the Form FM-30 without knowing who filled out the form in question. T. 109.

16. Kroll testified that the job described on the form matched that of Petitioner’s supervisor, Judge John. T. 77. Kroll could point to no circumstances where Petitioner made a claim that she was actually Judge John or had his job. T. 78. Likewise Petitioner never made such claims about Kroll, who took the job from Judge John. T. 78. Petitioner testified that she had a poor working relationship with Kroll. T. 254. Petitioner believed that Kroll conducted the disciplinary process with the goal of obtaining Petitioner’s termination. T. 289.

17. Respondent likewise asserts that Petitioner was dismissed for driving her state-issued car back and forth from work. See Petitioner’s Exhibit 8C; Kroll testimony generally. Before the pre-disciplinary conference, Kroll never told Petitioner that she could not park the car at home. T. 86.

18. And the same Form FM-30 clearly states under the heading, “Address Where Vehicle Will Be Parked,” the address: 2710 Calliope Way, Raleigh. See Petitioner’s Exhibit 3, Respondent’s Exhibit 1. This was Petitioner’s home address, which Penny got from her driver’s license as previously stated. However, there is a block on the FM-30 with the following words:

“A. Individual Assignment Only (ATTACH COPY OF VALID DRIVER’S LICENSE) How Person Qualifies to Drive Vehicle Home: None of the following (NON)

Reason driver required to drive after duty hours:

Round trip distance to driver’s residence:”

19. Kroll testified that she did not know that 2710 Calliope Way was Petitioner’s address. T. 71-72. The Court finds it oddthat Kroll would not be aware of Petitioner’s home address when the propriety of Petitioner commuting from home in the vehicle was a primary stated reason, why Kroll dismissed Petitioner. Kroll then subsequently stated that she had no reason to believe the address was not Petitioner’s home address. T. 72.

20. Petitioner did not update Penny with her new address when she moved from Raleigh to Cary some time after receiving the car. However, Respondent does not cite this failure to update the Form FM-30 as a reason for dismissal, and the Court will thus not consider it as such. See Petitioner’s Exhibit 8C; N.C.G.S. 126-35(a). To the contrary, Respondent asserts that “Travel from your residence in Raleigh and later Cary, to DMV headquarters … was not authorized under Motor Fleet regulations.”

21. Petitioner did not solicit issuance of the car to herself. T. 238. She said she was called to come over and pick up the car. T. 238. She regarded the Form FM-30 as just a form to “pick up the vehicle”. T. 239. She never asked either Judge John or DMV management for a state car. T. 239.Kroll claimed she was “told” that Petitioner sought to have the car issued to her but did not identify the person allegedly having this information. T. 73-74. Kroll could not produce or refer the Court to any documentation supporting this contention and stated she was not aware of any such documentation existing. T. 74.

22. Kroll did not query Petitioner about her use of the car or the appropriateness of Petitioner having the car at any time prior to Kroll assuming her role as Petitioner’s supervisor and the pre-disciplinary conference. T. 250. In fact, Kroll rode in the car herself, including to lunch and to the LegislativeBuilding. T. 91, 250. Robertson also drives his own state issued car to lunch and parks it at home. T. 160.

23. Kroll learned that Petitioner had the state car in 2009. T. 80-81. She did not question Petitioner’s possession or use of the car at that time. T. 81. Over the ensuing seven months, Kroll in no way questioned Petitioner’s possession or use of the state car. T. 82-83:

Q. Can you tell us whether you questioned to her in any form … my client’s use of the vehicle to her during that seven month period?

A. I don’t believe I did.

T. 83.

24. This was despite the fact that Petitioner was openly using the vehicle. T. 83-84. And Petitioner did not keep it a secret that she was commuting with the car. T. 84. Yet Kroll did not question Petitioner on the use of the vehicle in any form until bringing Petitioner into a pre-disciplinary conference. T. 83.

25. Judge John, when supervising Petitioner, never instructed Petitioner “one way or the other” on whether she could park the state vehicle at home. T. 168.

26. Judge John testified that there was a parking place assigned for the car issued to Petitioner; this parking place was at DMV headquarters. T. 170.

27. While he did not focus on Petitioner’s use of the vehicle, nothing about Petitioner’s use of the vehicle struck Judge John as inappropriate. T. 170.

28. Penny testified that when she issued a car, “it’s usually for a person to take home with them.” T. 189.

29. Kroll could not identify any time at which she or any other DMV management explained to the Petitioner that the Form FM-30, which permitted by its terms Petitioner to park the car at home, denied Petitioner the ability to drive the car back and forth to work. T. 141.This was despite Kroll herself knowing that Petitioner was driving the car back and forth to work. T. 141-142.

30. It was Petitioner’s specific understanding that both the form and general practice permitted her to park the state car at home and drive it back and forth from work. T. 241; see also Penny, T. 189.

31. Between the issuance of the car and being called in for a pre-disciplinary conference in July 2010, no one questioned Petitioner about her entitlement to park the state car at home. T. 241.At no time prior to the pre-disciplinary conference did Kroll warn or direct Petitioner not to park the state car at home or questioned her about having the car in the first place. T. 109-110.Between issuance of the car and being called in for a pre-disciplinary conference in July 2010, no one questioned Petitioner about her entitlement to drive the state car to and from work. T. 241.

32. At no time prior to the pre-disciplinary conference could Kroll cite a document where she asserted Petitioner’s use of the vehicle was inappropriate. T. 114.

33. Respondent also asserts that Petitioner falsely claimed that no one ever told her how to fill out the travel logs, and that she should be dismissed on this basis. Petitioner denies making this claim. Rather, Petitioner said, her statement was that no individual came to her and said she had to do travel logs or other instructions related to the state car. T. 251. Petitioner said she was aware of the issue from general practice but “as a person coming specifically coming to me, telling me to do so, that never happened. T. 251. Most critically Commissioner Robertson confirmed that this – not that Petitioner did not know, but that no person specifically told her - was the form in which Petitioner made this claim to him. T. 152-153.

34. Petitioner readily admitted that she knew how to fill out the logs and admitted (see below) that for some period of time she did a poor job at this after initially doing well.

35. The extent to which Petitioner was instructed on travel logs by Penny, who issued her the car, was a matter of dispute between Penny and Petitioner. Penny said Petitioner read the form in her presence and signed it. T. 176. Penny said she went over the travel logs with Petitioner and gave her the first thirty pages of the relevant manual, but did not go over the material page by page with Petitioner. T. 179.

36. On cross examination Penny admitted that this process was quite brief, as was the “instruction” process. T. 188.

Q. And so would I be off base in suggesting that … that going over was something to the effect of, “Here’s the forms you use. You know, you’ve got to write down every day when you use it. Here you go.”?

A. Correct.

T. 184.

37. Penny had no interaction with Petitioner from 2008 until 2010, when Petitioner was undergoing the disciplinary action being litigated in this case. T. 189.

38. Respondent also asserts that Petitioner falsified travel logs to “justify your assignment of a State vehicle”. See Petitioner’s Exhibit 8(c). However, as already established, neither Kroll nor any manager of Petitioner questioned her use of the car until a pre-disciplinary conference nearly two years after the car was issued to Petitioner with the approval of the highest level of management.

39. Kroll could not identify even a single incident in which she claims Petitioner produced or cited the vehicle travel logs to justify her possession or use of the state car. T. 97. At hearing, Kroll specifically admitted that despite alleging in the dismissal letter that Petitioner falsified documents to justify having a state car, she at no time prior to the pre-disciplinary conference asked Petitioner to justify the issuance of a state car to her. T. 98.

40. With respect to the travel logs, Respondent once again introduced testimony from Penny, who said that she “went over” the manner in which travel logs were to be done and gave Petitioner parts of the Motor Fleet Manual and asked her to read it. Petitioner disputed that Penny ever went over the manual with her. T. 242. She said she “quite honestly did not even remember [Penny] giving me the manual.” T. 242. She likewise did not recall Penny discussing the Form FM-12 travel logs with her. T. 243.

41. Petitioner admitted that due to busyness she was not doing as good a job as she could have with the logs, “but with the differences in the job and the different people using the car, I just failed to do a good job” on that point in the latter months she had the state car. T. 252.

42. The “different people” reflects that while the car was issued to Petitioner, it was actually employed for the purposes of much of the DMV personnel in multiple sections.

43. Judge John did not recall telling Kroll that the car assigned to Petitioner was actually the section car, but that was “not an inaccurate description”. T. 165.