State of North Carolina s23

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS GASTON COUNTY 02 OSP 0477

GALE LAWING STOUT, ) Petitioner, ) ) v. ) DECISION ) N.C. DEPARTMENT OF TRANSPORTATION, ) Respondent. )

A contested case hearing was conducted before the undersigned in the James K. Polk Building in Charlotte, North Carolina on January 9, 2003.

APPEARANCES

For the Petitioner: Ray G. Corne, Esq.

For the Respondent Tracy C. Curtner Assistant Attorney General

STIPULATIONS

The stipulations contained in the Pre-Trial Order filed with the undersigned on January 9, 2003 and the stipulations of record are made part of this contested case.

Whether Petitioner’s non-selection for the position of Driver’s License Hearing Officer was as a result of discrimination based on political affiliation or influence? (Pre-Trial Order #9)

PETITIONER’S EXHIBITS

1. Vacancy posting dated November 20, 2001 for position number 11470 for Driver License Hearings Officer.

2. Vacancy posting dated December 18, 2001 for position number 11470 for Driver License Hearings Officer.

3. DOT Qualification Evaluation Report dated December 3, 2001. 4. DOT Qualification Evaluation Report dated January 7, 2002.

5. Interview Record for Gale Lawing Stout dated January 17, 2002.

6. Interview Record for Audrey Grindstaff Cody dated January 16, 2002.

7. Memorandum dated May 9, 2002 from Gale Stout to Gail Herring re information for grievance hearing.

8. Interview Questions score sheet for Gale Stout completed by panel member Phillip Stroud.

9. Interview Questions score sheet for Gale Stout completed by panel member Debbie Register.

10. Interview Questions score sheet for Gale Stout completed by panel chairperson Cathy Matthews.

11. Interview Questions score sheet for Audrey Cody completed by panel chairperson Cathy Matthews.

12. Interview Questions score sheet for Audrey Cody completed by panel member Debbie Register.

13. Interview Questions score sheet for Audrey Cody completed by panel member Phillip Stroud.

14. Interview Questions score sheet for Michael Peeler completed by panel chairperson Cathy Matthews.

15. Interview Questions score sheet for Michael Peeler completed by panel member. Debbie Register.

16. Interview Questions score sheet for Michael Peeler completed by panel member. Phillip Stroud.

17. Interview Questions score sheet for Deanna Moore Brown completed by panel. chairperson Cathy Matthews.

18. Interview Questions score sheet for Deanna Moore Brown completed by panel. member Phillip Stroud.

19. Interview Questions score sheet for Deanna Moore Brown completed by panel. member Debbie Register. 20. Scoring Chart (Illustrative).

RESPONDENT’S EXHIBITS

6. Driver License Senior Examiner Job Description.

7. Driver License Hearing Office Job Description

8. Form PO-700 for position number 11470.

Based upon the stipulations of record and the preponderance of the admissible evidence, the undersigned makes the following:

FINDINGS OF FACT

1. Petitioner is a career state employee currently staffed in the position of Senior Driver’s License Examiner with Respondent’s Division of Motor Vehicles (DMV) in Gastonia, North Carolina.

2. On December 27, 2001 Petitioner applied for reposted position number 11470 for Driver License Hearings Officer with Respondent. Petitioner was interviewed by a panel of three persons: Chairperson Cathy Matthews, Debbie Register and Phillip Stroud. (Petitioner’s Exhibits 1, and 3).

3. The selection process was conducted by a structured panel interview. The three member interview panel asked twelve questions of each applicant. The questions had been previously drafted by the chief hearing officer, Cathy Matthews, and her staff. (Petitioner’s Exhibits 8-19). The applicants also were invited to ask questions of the panel.

4. At the time of the interview and at the time of the hearing, the driver license section of DMV was divided into the adjudication section and the certification section. Driver license examiners fell within the certification section and hearing officers fell within the adjudication section. (T. p. 124).

5. The duties of an examiner involve reading a limited number of statutes to determine whether a person was eligible for a driver’s license and, if so, issuing that license. (T. pp. 124, 126-127). The duties of a hearing officer involve reading a greater number of statutes, in addition to taking account of the circumstances surrounding a driver’s license revocation, the individual circumstances of a particular situation, applying the law and then exercising the appropriate discretion in making a decision on whether a license should be re-instated under the law. (T. pp.126-127). (Petitioner’s Exhibits 1 and 2).

6. There are distinct differences between the duties of a driver license examiner and those of a hearing officer. To be eligible for promotion to a hearing officer, it is not first required that the hearing officer hold the position of examiner. Although the positions fall within parallel sides of the driver license section, the duties are distinct. (T. pp.156-161).

7. At the time of the interview, Petitioner was a Senior Driver License Examiner who had been employed in that position since May 1995. Prior to that time, Petitioner had held the position of Driver License Examiner since August 1, 1988. Both positions include responsibility for issuing drivers licenses, ID cards, voter registration, road testing and medical reviews. (T. pp. 11-12).

8. Applicant Audrey Cody had been employed as a Driver License Examiner with Respondent since October 1995. At the time of the interview, Ms. Cody reported to Petitioner. Prior to her employment as an examiner, Ms. Cody was employed for twenty years as office manager for Brinlaw/Bull Frog Knits. She reported directly to the company president. Her responsibilities included working with staff supervisors regarding personnel problems, responsibility for all hiring decisions, acting as purchasing manager and responsibility for the discharge of all employees when the plant closed. (Petitioner’s Exhibit 6).

9. All applicants for the position had been previously screened by DOT personnel, with some being designated as “highly qualified.” Petitioner and Ms. Cody were both classified as “highly qualified” and both were interviewed. (Petitioner’s Exhibits 3 and 4)

10. Each panel member individually scored each applicant’s response to each of the twelve questions using a scale of 1 (low) to 5 (high). The scores were totaled for each applicant. The score given to each applicant on each question reflected the applicant’s knowledge of the requirements for a hearing officer. The applicant’s score also reflected an ability to “think on their feet” in situational questions. (Petitioner’s Exhibit 20).

11. Audrey Cody, Barbara Lotharp, Michael Peeler, Anthony Smith, Deanna Brown, Jerry Nagel and Gale Stout were the applicants interviewed. (Petitioner’s Exhibit 7) The applicant with the highest score was Michael Peeler. Michael Peeler was the applicant the panel recommended to Mike Bryant, Director of Administration and Adjudication, as their first choice for the position. (T. p. 162).

12. Upon receiving the recommendation of the panel, Mr. Bryant asked the Chairperson, Cathy Matthews, if Mr. Peeler had informed them that he could only work 20 hours per week. Mr. Peeler had not so informed the panel. The position required a full 40 hour work week. (T. p. 162-163).

13. Thereafter, Mr. Bryant informed Ms. Matthews that if they needed a hearing officer who could work forty hours per week in the very busy Mecklenburg County area, Mr. Peeler could not do so. (T. p. 163).

14. Ms. Matthews then determined whom the panel had ranked as the second choice. The person who ranked second was Deanna Brown. Ms. Matthews then changed her scores to reflect Ms. Brown as the highest scorer and the top choice of the panel. No one instructed Ms. Matthews to change the scores. She erroneously believed the panel could only select the applicant with the highest score for a position. (T. p. 211-212).

15. Ms. Matthews then presented Deanna Brown to Mr. Bryant as the choice of the panel. Thereafter, the personnel technician informed Mr. Bryant that Ms. Brown was under felony criminal indictment. Mr. Bryant questioned Ms. Matthews as to whether or not the panel was aware of this relevant information. The panel was not.

16. Ms. Matthews next determined who had been ranked as the third choice. The person whom the panel had ranked third was Audrey Cody. Ms. Matthews changed her scores to reflect Ms. Cody as the top choice of the panel. No one instructed Ms. Matthews to change her score. (T.p.217).

17. Ms. Matthews then presented Mr. Bryant with Audrey Cody as the choice of the panel. In arriving at Ms. Cody as the ultimate choice of the panel, Ms. Matthews never changed the ranking of any candidate - i.e. the rankings were always Peeler first, Brown second and Cody third; however, the total overall score did change for each applicant. (T. pp. 224-225).

18. Ms. Cody was ultimately selected and approved by the Respondent’s personnel department for the hearing officer position.

19. Petitioner alleges that she was more qualified for the hearing officer position than Ms. Cody. (T. p. 237).

20. Petitioner also alleges that she was not selected for the position of hearing officer as a result of political affiliation and influence.

21. Senator David Hoyle wrote a letter to the Respondent’s personnel department at the request of and in support of Audrey Cody for this hearing officer position. (T. p. 94).

22. The letter was addressed to Becky Keith in the Respondent’s personnel department. (T. p. 94).

23. Petitioner presented no evidence that the letter was received by Becky Keith or any other of Respondent’s employees.

24. Petitioner presented no evidence that the letter was relied on by any member of the panel, Mike Bryant or any other person from Respondent as the basis for selecting Audrey Cody for the position in lieu of Petitioner.

25. Mike Bryant denied receiving or seeing a letter from Senator Hoyle or any other form of communication from Senator Hoyle. Mr. Bryant did receive a telephone call from Hearing Officer Jay Scholar recommending Barbara Lotharp for the position. The only letter he received recommending a candidate was from Representative Forester on behalf of either Mr. Nagel or a Mr. Edmisten. (T.pp.154-155). 26. Cathy Matthews also denied ever receiving, or seeing a letter from Senator Hoyle. She did not receive a telephone call from either Senator Hoyle or Becky Keith recommending Audrey Cody. The only telephone calls she received, recommending a candidate, was from retiring Hearing Officer Judy Grindstaff, Ms. Cody’s sister-in-law, on behalf of Ms. Cody, from Hearing Officer Hollifield on behalf of Michael Peeler; and from Hearing Officer Scholar on behalf of Barbara Lotharp. (T. p. 205).

27. Petitioner presented no evidence to establish the political affiliations of any of the applicants, panel members, management staff, DOT staff, DMV staff or of Senator Hoyle.

28. Petitioner sent a letter dated March 12, 2002 to Becky Keith with copies to Senator Hoyle, Representative Forester and Representative Raefield. She stated: “I will be relentless until I receive an acceptable explanation as to why this position was filled by someone with the least employment time as well as qualifications.” (T. p. 237).

29. Petitioner admitted that the basis of her claim was that Ms. Cody had been an examiner less time than she; that Petitioner had been Ms. Cody’s supervisor; and that Petitioner was more qualified than Ms. Cody.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has subject matter and personal jurisdiction over this contested case pursuant to Chapters 126 and 150B of the North Carolina General Statutes.

2. Pursuant to N.C. Gen. Stat. § 126-14.2 and 126-36, it is unlawful for the employer to deny a state employee a promotion because of political affiliation.

3. To exercise a contested case cause of action based upon political affiliation or political influence as prohibited by N.C. Gen. Stat. §126-14.2, the Petitioner must first satisfy the investigatory preconditions of N.C. Gen. Stat. § 126-14.4. The record is devoid of any evidence of meeting such preconditions and thus Petitioner’s claim under N.C. Gen. Stat. § 126.14.2 are subject to dismissal.

4. Petitioner must establish a prima facie case of discrimination based upon political affiliation by introducing evidence sufficient to support a finding that (1) the employee works for a public agency in a non-policymaking position; (2) the employee had an affiliation with a certain political party; and (3) the employee’s political affiliation was the cause behind, or motivating factor for, the adverse employment action. Curtis v. North Carolina Department of Transportation, 140 N.C. App 475, 479, 537 S.E.2d 498, 502 (2000).

5. If an employee makes out a prima facie case, the burden then shifts to the employer to articulate a non-discriminatory reason for the adverse action. If the employer satisfies this requirement, the burden then shifts back to the employee to prove that the reason given was a mere pretext. Id. 6. Petitioner has failed to meet her prima facie burden. Although Petitioner has established that she was an employee working for a public agency in a non-policymaking position at the time of the interview, she did not introduce any evidence of her affiliation with a particular political party and further, she did not introduce any evidence that her political affiliation or that of any other person was the motivating factor for Petitioner’s non-selection for the position of Driver License Hearings Officer. It is unnecessary to proceed to further analysis as the burden never shifts to Respondent in this contested case. However, the evidence presented in this contested case and by its greater weight demonstrated that Respondent articulated non-discriminatory reasons for not promoting Petitioner and that there was no evidence that these articulated reasons were in any way pretextual.

7. Evidence that the panel chairperson unilaterally altered scores for the applicants can lead a reasonable person to believe that the selection process was tainted except that there was no evidence that political affiliation was the causative factor for the change. The evidence demonstrated that the chairperson erroneously believed that this was necessary before the panel’s choice could be submitted. The rankings of the candidates did not change. Also, evidence that the panel’s highest rankings were rejected for non-political reasons indicates that this panel was not influenced by political influence or affiliation.*

8. Petitioner has attempted to base her non-selection by claiming that she should have received the position instead of Ms. Cody because Petitioner had been employed by Respondent longer than Ms. Cody, because Petitioner had actually supervised Ms. Cody and because Petitioner was more qualified than Ms. Cody. No such cause of action or claim for relief is available to Petitioner.

9. N.C. Gen. Stat. § 126-34.1 sets out specific grounds upon which a Petitioner can proceed with a Petition for Contested Case Hearing before the Office of Administrative Hearings. Neither this section nor N.C. Gen. Stat. § 126-4 confer Petitioner with specific grounds for appeal on

______* However, the wrong perception was left with the Petitioner and others from this admission by the chairperson that scores were unilaterally altered. Although explained within the context of the issue of political influence, such a revelation makes a highly qualified applicant as Petitioner loose confidence in the process, particularly a process that selects an individual for a position that requires impartiality and neutrality such as a quasi-judicial hearing officer. the issue of whether the most qualified applicant was chosen. Dunn v. North Carolina Department of Human Resources, 124 N.C. App. 158, 161, 476 S.E.2d 383, 385 (1996).

DECISION

It is hereby ordered that Respondent’s decision not to select Petitioner for the position of Driver License Hearings Officer is AFFIRMED.

ORDER It is ordered that the agency making the final decision in this matter serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in N.C. Gen. Stat. § 150b- 36(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a).

State Personnel Commission Rule 25 NCAC 1B.0437 provides that “[o]ral arguments shall be requested or waived in writing no more than 10 calendar days after the filing date of the decision of the Administrative Law Judge and the parties shall attach a copy of the Administrative Law Judge’s decision to the request or waiver.” In addition, the rule provides that “[a] ll briefs and legal memoranda in cases other than those arising under G.S. 14.4 shall be received by the Office of State Personnel no later than 30 calendar days after the filing date of the decision of the Administrative Law Judge. Such document shall also be served upon the opposing party and a copy of the decision of the Administrative Law Judge shall be attached to the document. Such a document received after the deadline shall be presented to the Commission only after the party has shown that the opposing party was served with the document no later than 30 calendar days after the filing date of the decision of the Administrative Law Judge.”

The agency that will make the final decision in this case is the State Personnel Commission.

This the 11 th day of April, 2003.

______Julian Mann, III Chief Administrative Law Judge