ADMINISTRATIVE HEARINGS COUNTY OF WAKE 13 OSP INTRODUCTION

Transcription

1 STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 13 OSP CAROLYN CAMPBELL ) Petitioner, ) v. ) FINAL DECISION ) DIVISION OF EMPLOYMENT ) SECURITY, NC DEPARTMENT OF ) COMMERCE ) Respondent. ) INTRODUCTION 1. This matter involved the contested case hearing relative to the grievance of the Petitioner (hereinafter the Petitioner or Campbell ) against the Respondent, Division of Employment Security, NC Department of Commerce (hereinafter DES ) based on her allegation that the Respondent denied her a promotion in violation of N.C.G.S (e). An evidentiary hearing was held on October 31, 2013 before the undersigned Administrative Law Judge. 2. N.C.G.S (e) essentially gives State employees priority over non-state employees applying for a promotion if he or she has substantially equal qualifications as an applicant who is not a State employee. 3. In the instant case the Petitioner who was a State employee and another person, Charlita Jones (hereinafter Jones ), who was not a State employee, both applied for the position of Technology Support Analyst in the Help Desk Section of DES, a promotion for the Petitioner and a new job for Jones. 4. Accordingly, the issue at bar is whether the Petitioner had substantially equal qualifications or superior qualifications to Jones when she applied for the promotion to the Technology Support Analyst position. If so, she was entitled to the priority appointment under N.C.G.S (e) and DES erred in choosing Jones for the Analyst position. If not, Jones s appointment is legally valid. 5. Under N.C.G.S (g) qualifications within the meaning of N.C.G.S (e) entail: a. training or education b. years of experience c. other skills, knowledge, and abilities that bear a reasonable functional

2 relationship to the abilities and skills required in the job vacancy applied for. Based upon the foregoing background, the undersigned Administrative Law Judge hereby makes the following: FINDINGS OF FACT 1. Commencing in January, 2007, the Petitioner worked at the Employment Security Commission (hereinafter ESC ), now DES, as an administrative secretary for the Director of Information Systems, Robert Cottrell. After one (1) year she was transitioned to the Help Desk, both positions being under contract to the State. On December 15, 2008 Campbell became a full-time State employee working as a Technology Support Technician (hereinafter TST ) at the Help Desk of ESC (now DES). She was a State employee when she applied for the position of Technology Support Analyst. Jones was not a State employee when she applied for the position. 2. In her position as TST the Petitioner provided first level telephone technical support, problem analysis and resolution of internet and information technology (hereinafter IT ) problems encountered by customers of ESC (now DES), the customers being comprised of over 2,000 employees in 90 field offices of ESC (now DES) throughout North Carolina processing claims for unemployment insurance benefits. One of her primary duties was processing Network User Requests (hereinafter NUR s ) from the field offices to allow them access to ESC servers and... She also spent considerable time at the Help Desk answering and resolving telephone requests for IT assistance. 3. In her position as TST Campbell worked with Joseph Babyak, a Technology Support Analyst at the Help Desk, doing the same type of work for four (4) years. Mr. Babyak and the Petitioner interacted on a daily basis and the former came to rely almost exclusively on the latter with regard to the processing of NUR s. 4. On September 4, 2012 DES posted the availability of a Technology Support Analyst position with the Help Desk. This position was the one occupied by Mr. Babyak when he left DES for another position with the North Carolina Department of Revenue. The job description for the position was described as follows: Position is with the DES Help Desk. Position will provide first level telephone technical support, problem analysis and resolution to customers, escalate complex problems to various Tier 2 support groups. Support responsibilities include PC hardware and software, network, telephone (to include VoIP telephony, CTI and IVR applications), voice mail, mainframe systems and web applications in a large Windows network environment. Position includes administration of Exchange E- mail accounts, DES Security Module and RACF. Employee will be responsible for timely completion of computer/application access requests (e.g. NUR). Responsibilities will include: NUR completeness review, NUR audit documentation and procedure compliance, coordination and follow-up with other IT groups (USG, EAG, Change Control) ensuring timely completion of requests; 2

3 obtaining data owner approval; perform monthly RACF deletions for inactivity, support periodic cost center managers and data owners RACF reviews, review of Beacon Action report to ensure receipt of NUR, and perform Third Party Contract Administration. Teamwork and excellent communications skill are essential, employee will be interacting with DES computer and network customers to accurately identify the problems that are being reported and with a broad range of vendors and IT staff or other agencies. Hours are 8:00 a.m. to 5:00 p.m. Occasional overtime, including weekends, may be required. Petitioner s Exhibit 1 5. The duties required for the Technology Support Analyst position were ones with which Campbell was intimately familiar by reason of her daily interaction with Mr. Babyak for four (4) years and her work as a TST with the Help Desk. There was no evidence adduced at the hearing on October 31, 2013 that Campbell was unable to discharge the duties of the position. In fact, based solely on the testimony of the Petitioner and Mr. Babyak, it is clear that Campbell was qualified for the position. 6. Additionally, the Performance Management Program Work Planning Document (hereinafter Job Performance Evaluations ) for three separate periods of time covering (a) April 1, March 31, 2010, (b) April 1, April 30, 2012 and (c) April 1, March 31, 2013 assessed the Petitioner on twenty nine (29) discrete evaluation categories for the four (4) year period. She received twenty seven (27) Very Good ratings and an Overall Summary Rating of Very Good for all three (3) periods. Campbell was never cited for any deficiency in her job performance nor was any plan ever developed to help her improve and/or gain knowledge or skills to perform her job, part of the Job Performance Evaluations. Petitioner s Exhibits 2, 3 and Campbell s Job Performance Evaluations are replete with complimentary comments such as: Carolyn does a very good job of performing periodic RACF [Resource Access Control Facility] maintenance based on review of RACF report by cost center managers... Petitioner s Exhibit 2, page 2 Carolyn reviews and documents NUR, VOIP requests accurately and ensures timely routing and receipt from ITS. Petitioner s Exhibit 2, page 4 3

4 Carolyn has strong administrative skills and ensures database and spreadsheets are updated accurately and timely. Carolyn willingly assists new staff and contractors as requested. Petitioner s Exhibit 2, page 5 Petitioner s Exhibit 3, page 5 Petitioner s Exhibit 4, page 5 Supervisor [Pat Ross] has received many compliments for her [Campbell s] customer service. Petitioner s Exhibit 2, page 6 Petitioner s Exhibit 4, page 6 Carolyn [Campbell] completes special assignments and tasks in timely manner, meeting requested deadlines. Petitioner s Exhibit 3, page 5 Petitioner s Exhibit 4, page 5 8. Mr. Babyak testified at the hearing that he worked all four (4) years with the Petitioner and the one (1) year with Jones when she was a contractor at the Help Desk. In such capacity he observed closely the job performances of both parties. Without equivocation Mr. Babyak stated that in his opinion the Petitioner should have received the promotion to the position of Technology Support Analyst at the Help Desk which he vacated for a lateral transfer to the North Carolina Department of Revenue. 9. Mr. Babyak s testimony was compelling and persuasive in light of the fact that he was a disinterested party, appearing pursuant to a subpoena, who quite obviously knew what the Technology Support Analyst position required in terms of skills, knowledge and abilities since it was his position for which the Petitioner and Jones were applying and, moreover, he had a close working relationship with Campbell during a four (4) year period as well as being able to observe Jones on a daily basis during her one (1) year tenure at the Help Desk as a contract RACF Security Administrator. Accordingly, Mr. Babyak s testimony is entitled to considerable deference. 10. The Respondent presented five (5) witnesses who sought to justify the selection of Jones for the Technology Support Analyst position by testifying, inter alia: (a) that Jones had better IT experience on her application than Campbell - testimony of Patricia Ross (b) that Jones had better abilities than Campbell at following complex technical procedures for NUR s, at solving non-routine problems and at communication skills - testimony of Patricia Ross (c) that Jones interviewed better than Campbell - testimony of Patricia Ross (d) that Jones scored better than Campbell on the interview - testimony of Dennis St. Andrew 4

5 (e) that Campbell frequently (i.e., 2-3 times per week) would send user request inquiries with insufficient information to a Tier II User Group for assistance - testimony of Teresa Kilpatrick 11. The problems with the testimony of the Respondent s witnesses are the following: (a) (b) (c) (d) (e) (f) The testimony overlooks the significant difference in actual DES Help Desk experience of Campbell (4 years) versus Jones (16 months); and the testimony disregards the fact that Jones s primary duty at the Help Desk, comprising 90% of her time, was processing NUR s with the remaining 10% devoted to answering the telephone infrequently while Campbell s responsibilities over her four (4) year tenure encompassed a wide array of tasks as reflected on her application; and there was no corroboration of Jones IT experience set forth on her application with the exception of some contact with the North Carolina Department of Health and Human Services where Jones spent a year processing forms similar to NUR s; and the interview process took approximately forty-five (45) minutes and should not have been dispositive as to qualifications for the Technology Supprt Analyst position when balanced against the job performances of the applicants over four (4) years and sixteen (16) months respectively; and the determination as to who should have been selected for the Technology Support Analyst position should not have been based on subjective numerical scoring but rather on merit; and the Job Performance Evaluations of Campbell completely undermine the testimony that the Petitioner was profoundly deficient with regard to the information included in the user request inquiries sent to the User Service Group. On the basis of the foregoing Findings of Fact, the undersigned Administrative Law Judge hereby makes the following: CONCLUSIONS OF LAW 1. The Petitioner had substantially equal qualifications or superior qualifications to Jones for the position of Technology Support Analyst in the Help Desk Section of DES when considering her training, years of experience, skill, knowledge and abilities. N.C.G.S (e) and (g). 2. Accordingly, the Petitioner was entitled by law to the State employee priority appointment to the position of Technology Support Analyst. N.C.G.S (e). 3. The Petitioner should now be placed in the position of Technology Support Analyst or some comparable position within DES and is entitled to back pay in an amount equal 5

6 to the differential between what she would have received had the Respondent complied with N.C.G.S (e) and what she has been receiving in her current position, front pay until she is afforded the relief specified herein and reasonable attorney s fees. NOTICE This is a Final Decision issued under the authority of N.C. Gen. Stat. 150B-34. Under the provisions of North Carolina General Statute 150B-45, any party wishing to appeal the final decision of the Administrative Law Judge must file a Petition for Judicial Review in the Superior Court of the county where the person aggrieved by the administrative decision resides, or in the case of a person residing outside the State, the county where the contested case which resulted in the final decision was filed. The appealing party must file the petition within 30 days after being served with a written copy of the Administrative Law Judge s Final Decision. In conformity with the Office of Administrative Hearings rule, 26 N.C. Admin. Code , and the Rules of Civil Procedure, N.C. General Statute 1A-1, Article 2, this Final Decision was served on the parties the date it was placed in the mail as indicated by the date on the Certificate of Service attached to this Final Decision. N.C. Gen. Stat. 150B-46 describes the contents of the Petition and requires service of the Petition on all parties. Under N.C. Gen. Stat. 150B-47, the Office of Administrative Hearings is required to file the official record in the contested case with the Clerk of Superior Court within 30 days of receipt of the Petition for Judicial Review. Consequently, a copy of the Petition for Judicial Review must be sent to the Office of Administrative Hearings at the time the appeal is initiated in order to ensure the timely filing of the record. This the 14 th day of April, Eugene J. Cella Temporary Administrative Law Judge 6