STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF MACON NO. 08 OSP 0246

ELIZABETH FRAZIER,

Petitioner, DECISION v.

WESTERN CAROLINA UNIVERSITY,

Respondent.

The above-captioned case was heard before the Honorable Selina M. Brooks, Administrative

Law Judge, on 2 September 2008, in Asheville, North Carolina.

APPEARANCES

FOR RESPONDENT: Katherine A. Murphy Assistant Attorney General N.C. Department of Justice P.O. Box 629 Raleigh, N.C. 27602

FOR PETITIONER: Elizabeth Frazier, pro se 19 Bees Hive Dr. Franklin, N.C. 28734

EXHIBITS

Admitted for Respondent:

Exhibit No. Date Document 1 4/16/07 Memorandum from Dr. Kyle Carter to Ms. Elizabeth Frazier 2 6/06/07 Memorandum from Dr. Kyle Carter to Ms. Elizabeth Frazier 3 N/A University Policy #77 4 N/A University Policy #78 5 5/22/07 Memorandum from Elizabeth Frazier to Dr. Kyle Carter

Admitted for Petitioner:

Exhibit No. Date Document 1 N/A Diagram 2 12/19/07 Handwritten Note to Elizabeth from Gibbs 3 various Assorted Documents 4 4/11/07 “Graduate School and Research”

WITNESSES

Called by Respondent: Dr. Kyle Ray Carter Dr. Angela Johnson Grube Michelle Hargis Wanda Ashe Heyward Gibbs Knotts Karen Nicholson Kathy Wong

Called by Petitioner: Kristie Coggins Elizabeth Frazier

ISSUES

1. Whether the counseling memorandum, dated April 16, 2007, from Dr. Carter to Petitioner, was inaccurate or misleading.

2. Whether Respondent denied Petitioner her due process rights by failing to provide her with the procedures in Respondent’s Policy No. 78 “Disciplinary Policy and Procedures for SPA Employees”.

3. Whether Respondent denied Petitioner her due process rights by denying her grievance under Respondent’s Policy No. 77 “Grievance Policy and Procedures for SPA Employees” at each stage of the proceeding without giving Petitioner a reason in writing for why the counseling memorandum was written or presenting Petitioner with its evidence.

4. Whether Respondent has violated Petitioner’s due process rights by not treating a counseling memorandum in the same manner as a warning letter for the purpose of removing it from her personnel file.

ON THE BASIS of careful consideration of the sworn testimony of witnesses presented at the hearing, documents received and admitted into evidence, and the entire record in this proceeding, the undersigned makes the following findings of fact. In making these findings, the undersigned has weighed all the 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 witness; any interest, bias or prejudice the witness may have; the opportunity of the witness to see, hear, know and remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether such testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

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

2. Petitioner Elizabeth Frazier is a permanent State employee subject to Chapter 126 of the General Statutes of North Carolina (“the State Personnel Act”).

3. Respondent Western Carolina University (“WCU”) is subject to Chapter 126 and is Petitioner’s employer.

4. During the relevant time period, Petitioner worked as the Student Services Manager in the Graduate School at WCU.

5. In late 2006 or early 2007, the Provost of WCU, Dr. Carter, was made aware of some management problems with the dean of the Graduate School and requested an investigation.

6. As part of the investigation, employees in the Graduate School were interviewed. During these interviews, among other issues raised, employees complained that Ms. Frazier disrupted the workplace by often talking in a loud voice that interfered with coworkers’ ability to work, spreading rumors and gossip, and behaving in an unprofessional manner. 7. The investigation findings, including the issues that had arisen concerning Ms. Frazier’s conduct, were submitted to Dr. Carter.

8. On April 13, 2007, Dr. Carter held a meeting with Ms. Frazier and other employees to explain his expectations of how these employees should conduct themselves in the future. A written memorandum, dated April 16, 2007, was sent to Ms. Frazier and to each of the others.

9. The memorandum Ms. Frazier received from Dr. Carter (“counseling memorandum”) stated in relevant part: “I expect the behavioral patterns of talking about co-workers, aligning co-workers against other co-workers, adding to negative conversations, and creating disruption in the workplace to stop immediately.” Resp. Ex. 1

10. Petitioner filed a grievance in response to the counseling memorandum by sending a memorandum to Dr. Clark, dated May 22, 2007. Resp. Ex. 5

11. In her memorandum, Ms. Frazier describes in detail various events, providing dates, times and conversations she had with her coworkers.

12. As described by Ms. Frazier, her participation in these events are properly characterized as: gossiping about coworkers; spreading rumors; and encouraging divisiveness.

13. Pursuant to University Policy No. 77 “Grievance Policy and Procedures for SPA Employees”, following inaction on her grievance by her supervisors, Ms. Frazier’s grievance went to Step Two, which was before Dr. Carter, the supervisor who was next in the chain of command. Resp. Ex. 3

14. Regarding Step Two, Policy No. 77 provides in relevant part:

The supervisor may request documentation or other written explanation from the employee and the immediate supervisor. The supervisor may hold whatever discussions he/she deems desirable. The supervisor may schedule a private meeting with the employee to discuss the grievance. . . .

Following a review of all relevant information, the supervisor will issue a Step Two decision. The decision shall be in writing . . . .

Resp. Ex. 3, at p. 4 (emphasis added)

15. Dr. Carter reviewed Ms. Frazier’s appeal and, by memorandum dated June 6, 2007, Dr. Carter informed Ms. Frazier of his decision not to remove the counseling memorandum from her personnel file. Resp. Ex. 2

16. Following Dr. Carter’s decision, Ms. Frazier’s grievance was considered by a Grievance Committee, which is Step Three of Policy No. 77. Resp. Ex. 3

17. Regarding Step Three, Policy No. 77 provides in relevant part as follows:

If the grievance does not arise from dismissal, suspension, or reduction in pay or position, the format below will be followed.

The proceedings shall concern whether the employee, as specified in the request for appeal, has established a factual and legal basis for the grievance.

Formal rules of evidence shall not apply; however, the committee has the authority to reject evidence, which is repetitive or has no relevance to the case. The employee or supervisor may not confront or cross-examine each other unless the committee requests that they do so. The employee and supervisor may not remain in the room throughout the proceedings unless the committee requires their presence. . . .

The employee presents, through documentation or oral testimony, the basis of the grievance. The supervisor may then present documentation or oral testimony in response. Rebuttal or additional evidence may be allowed or requested by the committee. . . .

Resp. Ex. 3, at p. 6

18. The Grievance Committee upheld the decision of Dr. Carter.

19. At each step of the grievance process, Respondent refused to remove the counseling memorandum from Ms. Frazier’s personnel file because the counseling memorandum was determined not to be “inaccurate or misleading” and therefore not subject to Policy No. 77.

20. At each step of the grievance process, Respondent refused to remove the counseling memorandum from Ms. Frazier’s personnel file because the counseling memorandum was not a warning letter and therefore not subject to Policy No. 78.

21. The counseling memorandum was not a “warning letter” as defined by Policy No. 78.

22. A warning letter expires after a period of time and is automatically removed from an employee’s personnel file upon expiration of that period of time pursuant to Respondent’s policy manual.

23. Respondent’s policy manual does not define counseling memorandum, and is silent concerning an expiration period or removal from a personnel file. 24. A counseling memorandum remains in a personnel file indefinitely unless it contains “inaccurate or misleading information” as stated in Policy No. 77. There is no policy or procedure available for the removal of a counseling memorandum that is not “inaccurate or misleading”.

CONCLUSIONS OF LAW

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

2. With regard to the first issue, Petitioner failed to meet her burden to show that the counseling memorandum was inaccurate or misleading.

3. With regard to the second issue, because the counseling memorandum was not a disciplinary action pursuant to Respondent’s Policy No. 78; therefore, Respondent did not violate Petitioner’s due process rights by not following the procedures in its Policy No. 78.

4. With regard to the third issue, Respondent’s Policy No. 77 does not require that Respondent give Petitioner a reason in writing for the action being grieved; therefore, Respondent did not violate Petitioner’s due process rights by failing to give Petitioner a reason in writing for why the counseling memorandum was written.

5. With regard to the third issue, Respondent’s Policy No. 77 does not require that Respondent present Petitioner with evidence; therefore, Respondent did not violate Petitioner’s due process rights by failing to present evidence to her during the grievance process.

6. With regard to the fourth issue, Respondent has violated Petitioner’s due process rights by not treating a counseling memorandum in the same manner as a warning letter for the purpose of removing it from her personnel file.

ON THE BASIS of the above Conclusions of Law, the undersigned issues the following:

DECISION

It is hereby decided that Petitioner has not proved that the counseling memorandum dated April 16, 2007, from Dr. Carter to Petitioner, was inaccurate or misleading.

It is also hereby decided that Respondent denied Petitioner due process by not treating a counseling memorandum in the same manner as a warning letter for the purpose of removing it from her personnel file.

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, N.C. 27699-6714, in accordance with N.C.G.S. § 150B-36(b).

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to Decision and to present written arguments to those in the agency who will consider this Decision. N.C.G.S. § 150B-36(a).

The agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings. The agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.

This the 9th day of December, 2008.

______Hon. Selina M. Brooks Administrative Law Judge