STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF FORSYTH 08 OSP 2687

______________________________________________________________________

PAMELA LYNN JORDAN )

PETITIONER, )

V. ) DECISION

FORSYTH COUNTY DEPARTMENT )

OF SOCIAL SERVICES, )

RESPONDENT )_____________________________________

The above-captioned case was heard before the undersigned Selina M. Brooks, Administrative Law Judge, on October 26-27, 2009, in High Point, North Carolina.

APPEARANCES

For Petitioner: Pamela Lynn Jordan, pro se

5756 Harpers Ferry Road

Winston-Salem, North Carolina 27106

For Respondent: Gloria L. Woods

Assistant County Attorney

County Attorney Office

201 North Chestnut Street

Winston-Salem, North Carolina 27101

PREHEARING MOTIONS

Prior to the presentation of evidence, the Undersigned denied Respondent’s Motion for Summary Judgment and granted Respondent's Motion to Dismiss Petitioner's claims as to failure to give priority consideration, suspension without just cause, retaliation, workplace harassment, and allowed Petitioner to proceed on her claim of dismissal without just cause.

EXHIBITS

Admitted for Petitioner:

Exhibit 1 July 24, 2007, Memo, Inappropriate Personal Conduct

Exhibit 2 September 10, 2007, Appraisal Form

Exhibit 3 June 25, 2007, Conference Discussion

Exhibit 4 November 17-30, 2007 and December 1-14, 2007, Time Sheets

December 13, 2007, E-mail, Condolences

Exhibit 5 May 14, 2008, Memo, Report Workplace Harassment

Email, Adios Mi Amigos, page 2 only

Exhibit 6 November 14, 2007, Email, Work Environment

Exhibit 7 March 3, 2008, Email

Exhibit 8 May 14 and 19, 2008, Emails, Reschedule Conference

Exhibit 9 July 11, 2008, Memo, Correspondence Dated 5/14/08 (Report of Harassment)

Exhibit 10 June 26, 2008, Memo, Respondent’s Investigatory Questions

Exhibit 11 June 30, 2008, Petitioner's Response to Respondent’s Investigatory

Questions

Exhibit 12 December 14, 2007, Winston-Salem Journal, Obituary, Mrs. Mary Belle B. Jordan

Admitted for Respondent:

Exhibit 1 Timeline of Conferences & Meetings w/ Pamela Jordan

WITNESSES

Called by Petitioner: 1. Champagne Clark

2. Celina D. Crawley

3. Lois Gray

4. Charlie James Jordan, Sr.

Called by Respondent: 1. Joe Raymond, Director

2. Brenda Evans, Deputy Director

3. Melinda Hartley, Division Director

4. Kim Collie, Program Manager

5. Daphne Michelle Taylor, Senior Human

Services Planner and Evaluator (formerly

Program Manager)

6. Kenneth Malcolm Brown, Senior Human

Resources Consultant

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. Chapter 126

N.C. Gen. Stat. Chapter 150B

25 N.C.A.C. SubChapter 01I

ISSUE

Whether the Respondent had just cause to dismiss the Petitioner from her employment with Forsyth County Department of Social Services for unacceptable personal conduct?

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents, exhibits received into evidence, and the entire record in this proceeding, the Undersigned makes the following FINDINGS OF FACT. In so doing, the Undersigned has weighed all the evidence, or the lack thereof, has given due regard to the experience or expertise of the agency, 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 witnesses to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable and is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. Petitioner is a citizen and resident of Forsyth County, North Carolina and at the time of her separation was a permanent, local government career employee subject to North Carolina General Statutes, Chapter 126, “State Personnel Act”.

2. Respondent Forsyth County Department of Social Services (hereinafter “Respondent” or “FCDSS”) was the Petitioner’s employer, and is subject to North Carolina General Statutes, Chapter 126, “State Personnel Act” as well as all applicable regulations.

3. Upon hire, Respondent appointed Petitioner to Eligibility Specialist position effective October 12, 1987.

4. Respondent dismissed Petitioner effective October 3, 2008, from her position as a Senior Income Maintenance Caseworker (Lead Worker) position as appointed effective July 26, 2007.

5. Joe Howard Raymond has been the FCDSS Director since May 2005. Upon arriving at the agency, he engaged in strategic planning to include creating the organization’s mission statement, a code of ethics, updating the performance appraisal policy manual, improvements in the human resources system for better recruitment selection and performance appraisals, and arranged for training of all supervisors by staff from the Office of State Personnel.

6. Brenda K. Evans, FCDSS Deputy Director, began working with the agency in September 1989.

7. Melinda Jennings Hartley has been employed as the FCDSS Temporary Economic Assistance and Maintenance (TEAM) Division Director since 2003.

8. Kimberly Huffman Collie, Program Manager for FCDSS Family and Children's Medicaid testified that she began with FCDSS in May 2006. She supervised Petitioner from March 2007 until April 2008. For most of this period, she was the supervisor of the Lead Worker Unit. In February 2008, she became Program Manager.

9. Daphne Michelle Taylor, a FCDSS Senior Human Resources Planner and Evaluator, was in Petitioner's chain of supervision from the time Taylor started her former duties as a FCDSS Program Manager effective January 2007 up through the date of Petitioner's discharge effective October 3, 2008. She was responsible for supervising all front line supervisors for the specialized lead workers.

10. Kenneth Malcolm Brown, FCDSS Senior Human Resources Consultant, became an employee of FCDSS on September 22, 2008. He is responsible for FCDSS compliance with the State Personnel Act.

11. During the relevant period prior to Petitioner's discharge, Petitioner’s chain of command at FCDSS included Joe Raymond, Director; Brenda Evans, Deputy Director; Melinda Hartley, Division Director; Daphne Taylor, Program Manager; and Kim Collie, Supervisor (promoted to Program Manager prior to Petitioner’s dismissal).

12. Taylor personally supervised Petitioner because the direct line supervisor position was vacant when Taylor assumed the Program Manager position duties effective January 2007.

13. During Taylor’s first meeting with Petitioner between January and February 2007, Petitioner informed Taylor that Taylor was not the best candidate for the position of Program Manager and that Taylor was perpetuating “Jim Crow”.

14. Taylor personally interacted with Petitioner on numerous occasions: when she facilitated unit meetings with lead workers; when she participated in unit meetings facilitated by Collie; when she participated in employee conferences; and during mentoring conferences with Petitioner and Petitioner’s mentees.

15. Taylor was open to hearing constructive ideas from staff who might have better ideas on how to process customer applications and how to restructure the Program. Some procedures were mandated and monitored by the North Carolina Department of Human Resources for compliance, however, and FCDSS was required to maintain certain standards.

16. During numerous staff meetings, Taylor would ask staff for feedback, strategies, and suggestions on how to make things better for staff and customers. Lead workers were asked to perform duties that they had not been asked to do in the past. Taylor was very clear about the direction the Program was taking and what was expected of the workers. R. Ex. 1

17. Petitioner did not agree with the vision of management to restructure and did not accept the responsibility of taking a leadership role as a lead worker in helping management restructure the Program.

18. Petitioner was constantly disparaging towards the leadership, she would continuously make negative comments about management, and would not follow through with the expectations of lead workers.

19. During unit meetings, Petitioner would discuss tangential issues not related to the matter under discussion and would make negative remarks about Taylor, about the ineptness of her co-workers within the unit, and other supervisors in the Program.

20. In one-on-one meetings, Petitioner typically did not respond favorably to Taylor's constructive feedback. Petitioner took the approach that she knew how to do everything, that the supervisors did not know, and that the rest of the employees were also not qualified.

21. Petitioner personally told Taylor that she was underhanded, does things under a cloak, and conducted covert meetings; that she was evil, morally corrupt, went by deceit and lies, and the staff was not in support of Taylor; that she was a snake and had no integrity, and was lacking of character; and that she did not know how to interact with the little people (new employees), and that Taylor empowered them not to listen to Petitioner.

22. Petitioner stated that Taylor did not know anything about training and mentoring, that Taylor made decisions based upon favoritism rather than following agency policies or implementing best practices.

23. It was routine practice for supervisors to conduct quarterly conferences with lead workers, to document those conferences, and to address performance inadequacies intermittently between scheduled conferences. It was determined that it was best if two supervisors were involved when conducting conferences with Petitioner because Petitioner would get angry if she did not like what was being stated; would yell, stand up, and lean over Taylor’s desk into her face. Petitioner’s behavior moved beyond assertive behavior and towards becoming aggressive. Petitioner would tower over managers who were sitting across from her, get upset, pace the floor, and use sweeping arm gestures within a little more than an inch close to Taylor’s face.

24. After Collie became Program Manager in March 2007, Taylor and Collie would conduct the conferences together because of Petitioner’s actions. Generally, this dual supervision activity would not be required with other employees unless a memo of concern or a disciplinary action was pending.

25. At Collie’s very first conference with Petitioner, when Collie had only known Petitioner for one week, Petitioner told Collie that she was corrupt and immoral.

26. On July 24, 2007, Petitioner was given a written warning that several staff members had complained about Petitioner’s inappropriate behaviors, giving specific examples of statements made by Petitioner and her inappropriate conduct. The written warning included corrective actions for Petitioner to take and advised her of possible ramifications if she did not correct her behavior. P Ex. 1

27. In her Appraisal Form, received September 10, 2007, it was noted that Petitioner was late to work on a regular basis, that her behavior was loud and disruptive in unit meetings and hallways, and that she made statements demeaning to her peers. Petitioner was cautioned “to be mindful of comments that she makes that could be taken by others as belittling or racist.” In the Employee’s Comments section, Petitioner stated: “The duty that is placed on staff with more pigment in their skin to make sure all other staff members feel very comfortable in this environment and that the only acceptable mainstream style that is considered is of old south ways.” The Appraisal Form is signed by Petitioner, Collie and Raymond. P. Ex. 2

28. On November 15, 2007, Petitioner sent an e-mail to Raymond with various complaints about the work environment, including work assignments, attendance requirements, and stated “covert agendas which include only a select group that serve personal hates and jealousies.” P. Ex. 6

29. In December 2007, Petitioner's mother passed away. Typically a supervisor would go to the funeral service of an employee’s close family member. Neither Collie nor Taylor could attend the funeral service so Collie decided to call to see if they could visit the family. Petitioner had elected not to provide the agency a home telephone number but had given the telephone number for her parents. Collie spoke to Petitioner’s brother who gave directions and permission for them to bring snack food. Petitioner’s brother invited them in when they arrived. Petitioner was not there. They stayed for approximately twenty minutes. The family was gracious to them. The brother called Petitioner on the phone so that Collie and Taylor could speak to Petitioner. She thanked them for coming and her family invited them to return. Collie and Taylor were glad they were able to show some support. After Petitioner returned to work she brought a copy of the funeral service program to Collie, showed her pictures and explained who were in the pictures. Petitioner stated she thought Collie might like to have a copy.

30. Taylor stated that she and Collie repeatedly warned Petitioner between May and August 2008 that they were going to review all options available in order to recommend disciplinary action. After this initial verbal notice to Petitioner about the pending disciplinary action, Petitioner’s misconduct escalated. Petitioner accused them of being involved in a conspiracy against her. P. Ex. 1 and 3

31. Petitioner filed a Harassment Complaint with the Human Resources Office (“HR”) on May 19, 2008. P. Ex. 5 Among other things, Petitioner accused Collie and Taylor of spying on her, invading her home and visiting her family uninvited in December 2007. HR timely responded to Petitioner’s complaint, found no support for her claims, and provided information on her right to appeal. R. Ex. 9 She did not appeal and, therefore, the matter was considered closed.

32. Collie recalled a May 20, 2008, meeting when Petitioner got so loud during the meeting that staff from half way down the hall came to inquire whether security was needed.

33. Collie conducted several conferences with Petitioner so that Petitioner would have notice of behaviors that needed correction. Petitioner would talk loudly, would move her arms around or up and down, would call Collie a snake, state Collie had no character or integrity, that she had hidden agendas, and that she looked for ways to turn people against Petitioner. Collie frequently heard these accusations from Petitioner when interacting with her. Frequently, she would lean across Collie’s desk, flailing her arms about, and foaming at the mouth.

34. One day Petitioner came into Collie's office and accused Collie and Taylor of spying on her through the computer. Petitioner stated she knew they had bugged her phone, were spying because they could not find anything legitimate and were looking for things on her.

34. On August 28, 2008, Petitioner expressed to her supervisor, McInnis, that she was concerned about the chain of events at the agency, that she would fight them in court, and if that did not work that she would “take it to the streets”.

35. Upon learning of these threats from McInnis, Taylor discussed her concerns with Raymond.

36. The Program Managers often came to Hartley seeking advice about how to resolve the situation with Petitioner. Hartley personally interacted with Petitioner on August 28, 2008. They were on fifth floor in the administrative offices where the Call Center, Staff Development Department, Director, Assistant Director's Offices are located. The Petitioner asked if she could speak with her about a mentoring conference. She paced back and forth in the office while yelling in a loud voice. She leaned across the desk and hit her hand on the desk several times. Hartley asked her to calm down and to lower her voice. She ignored Hartley’s instructions. She switched back and forth between subjects to include a mentoring conference involving Carol Senter and her Program Manager and other matters. Hartley referred her back through her chain of supervision. During this interaction, the Business Officer came to the door twice to check on the disturbance. After the meeting, Hartley was approached by the Business Officer who stated that the Call Center Supervisor felt that customers could hear the discussion over the telephone because it was so loud. Employees came to Hartley inquiring whether security should be called because of Petitioner’s loud voice.

37. On September 3, 2008, Petitioner again told Collie and Taylor that they were corrupt and evil. Petitioner came to Collie and informed her that some staff were loud and disruptive in the hallway. Collie went to investigate and told them to stop and get back to work. Immediately, Petitioner launched into a tirade stating that there was one set of rules for others and a different set for her. She stated that management was crooked, evil, corrupt, and did not know how to lead.

38. Respondent placed Petitioner on investigatory status effective September 4, 2008.

39. FCDSS issued Petitioner a Pre-Disciplinary Conference letter dated September 26, 2008, providing advance notice to Petitioner of the following: the upcoming conference to present her position on October 1, 2008, at 11:00 a.m. in the FCDSS Director's office; the recommendation for dismissal and supporting reports to the Director of the specific Petitioner deficiencies as grounds to dismiss, the history of FCDSS counseling, of FCDSS informal warnings and of consequences for Petitioner's failure to improve; an outline of the Petitioner's pattern of unprofessional, disrespectful, loud and disruptive behavior amounting to unacceptable personal conduct;

40. A pre-disciplinary conference was held on October 1, 2009. Petitioner was given an opportunity to respond to all concerns. She denied all events had occurred but then admitted she had made the statements. Petitioner said on two occasions the agency was spying on her through her computer, said the work was unfairly distributed on basis of height, that tall black women were given all the work and that little white girls were frail and could not handle it.

41. On October 3, 2008, Respondent issued Petitioner a dismissal letter due to her pattern of unacceptable personal conduct when she failed to comply with the previous instructions and the warnings regarding her unacceptable misconduct.

42. Petitioner filed an appeal dated October 10, 2008, of the dismissal decision to the Director and, subsequently, on October 14, she mailed him some additional appeal attachments.

43. The Director, in a decision dated October 20, 2008, upheld the decision to dismiss and advised Petitioner of her right to file an appeal with Office of Administrative Hearings.

44. Petitioner filed a Petition For A Contested Case Hearing against Respondent on November 13, 2008, alleging discharge without just cause.

45 Petitioner represented herself at the hearing held on October 15-16, 2009, and called several witnesses to testify on her behalf.

46. Celina Diane Crawley, FCDSS Income Maintenance Caseworker II, met Petitioner in 1998. As Petitioner’s first witness, she could not dispute any of the agency’s allegations of misconduct. She stated that the work environment was very stressful due to the amount of people employees had to see and the volume of work. She did not dispute that Petitioner engaged in the conduct and had no information to offer about why Petitioner was no longer employed with the agency.

47. Champagne Cole Clark, was employed by FCDSS for one year and six months. She began March 27, 2008, was supervised by Aldrena Gaither, and trained for the first four weeks under Taylor and Collie. As Petitioner’s second witness, she confirmed that Petitioner mentored her along with another trainee and everything went well. She had no difficulties with Petitioner at that time. Although it was stressful, she did not feel she had an unbalanced caseload. Clark was unable to state definitively that Petitioner did not make derogatory remarks. Clark could not offer any personal knowledge about the incidents leading up to discharge. The hearing was her first knowledge about the incidents. She admitted she never challenged Petitioner as a mentor nor was she in an adversarial situation with Petitioner.

48. Lois Delphine Gray, Petitioner’s third witness, worked at FCDSS approximately fifteen years. She started with County’s Tax Department in July 1996. She was trained by Petitioner around 2003 as a lead worker. From May 2008 up to September 2008, she witnessed the same employee being present on a couple of occasions as she was coming out of Petitioner's office. She stated Petitioner believed that she was being monitored. She was not a witness to and had no personal knowledge of the incidents involving Petitioner which lead to her discharge.

49. Charlie James Jordan, Petitioner’s final witness and her father, testified that he recalled two white ladies coming to offer condolences after his wife died. He offered no testimony about why Petitioner was no longer employed by Respondent.

50. Petitioner did not testify on her own behalf.

BASED UPON the foregoing FINDINGS OF FACT and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case under the North Carolina General Statutes, Chapter 126, “State Personnel Act” and Chapter 150B as applied to all employees of the local social services departments pursuant to N.C. Gen. Stat. §126-5(A)(2) and has authority to issue a Decision to the State Personnel Commission.

2. As set out in N.C. Gen. Stat. §126-35, a current incident of unacceptable personal conduct is one of two statutory standards of “just cause” for dismissal which may be imposed against employees with career status and shall be based upon the judgment of the appointing authority. See 25 N.C.A.C. 1I.2301 (a) and (c).

3. The North Carolina Office of State Personnel Local Government Desk Resource Manual states unacceptable personal conduct is: “conduct for which no reasonable person should expect to receive prior warning," "conduct unbecoming an employee that is detrimental to the agency's service," and "insubordination”. See 25 N.C.A.C. 1I.2304

4. Pursuant to N.C. Gen. Stat. §126-35(d), Respondent has the burden of proving that it had just cause for discharging the Petitioner from employment.

5. Petitioner engaged in a pervasive pattern of conduct constituting just cause for dismissal when she was unprofessional, disrespectful, and argumentative towards her co-workers and management staff; when she was insubordinate; and when she caused disruptions in the workplace.

6. Respondent gave Petitioner opportunities to improve her conduct but she did not.

7. Petitioner continuously engaged in unacceptable conduct by her insubordination, by engaging in conduct for which no reasonable person should expect to receive a prior warning, and conduct unbecoming an employee that is detrimental to the agency’s service in violation of 25 N.C.A.C. 01I.2304.

7. As a result, Petitioner’s dismissal was proper because her unacceptable personal conduct amounted to just cause in accordance with N.C. Gen. Stat. §126-35 and the relevant provisions of the North Carolina Office of State Personnel Local Government Desk Resource Manual. Accordingly, Respondent did not act erroneously, arbitrarily, capriciously, or otherwise in a manner that caused prejudice to Petitioner’s rights.

8. Petitioner failed to establish by a preponderance of the evidence that there was no just cause to dismiss her from employment.

BASED UPON the foregoing Findings Of Fact and Conclusions Of Law the undersigned makes the following:

DECISION

It is the decision of the undersigned that Respondent has proven just cause to discharge Petitioner for unacceptable personal conduct and therefore, Respondent’s decision to discharge Petitioner is AFFIRMED.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Services Center, Raleigh, North Carolina 27699-6714, in accordance with N.C. Gen. Stat. §150B-36(b).

NOTICE

The North Carolina State Personnel Commission in this contested case shall issue an advisory opinion to the Director and local appointing authority of the Forsyth County Department of Social Services in compliance with 150B-44. N.C. Gen. Stat. §150B-23(a). The Director of the Forsyth County Department of Social Services will make the final decision in this contested case.

The Forsyth County Department of Social Services, making the final decision in this contested case, is required to give each party an opportunity to file exceptions to this Decision issued by the undersigned and to present written arguments to those in the agency who will make the final decision or order. N.C. Gen. Stat. §150B-36(a).

The agency is required by N.C. Gen. Stat. §150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the party or the parties' attorney of record if represented, and to the Office of Administrative Hearings.

In so far as this matter involves a local government employee subject to North Carolina General Statutes, Chapter 126, “State Personnel Act”, pursuant to N.C. Gen. Stat. §126-5(a)(2), the decision of the State Personnel Commission is guided by N.C. Gen. Stat. §126-37. State Personnel Commission procedures and time frames regarding appeals to the Commission are in accordance with Title 25 Chapter 1 SubChapter 1B “State Personnel Commission”. Further requirements of, or inquiries regarding rights and notices to the Parties should be directed to the State Personnel Commission or to the local appointing authority as the circumstances or the stage of the process may dictate.

This the 3rd day of December, 2009.

_______/s/______________

Selina M. Brooks

Administrative Law Judge

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