STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
07 OSP 1606
COUNTY OF BURKE
SANDRA PRESNELL,
Petitioner,
v.
BROUGHTON HOSPITAL,
Respondent.
)
)
)
)
)
)
DECISION
THIS MATTER came on to be heard before the undersigned Administrative Law Judge,
Augustus B. Elkins II, on February 5, 2008 at the Burke County Courthouse in Morganton,
North Carolina. The record was left open for submission of materials by the parties. After
filing by Respondent on March 11, 2008, the record was closed.
APPEARANCES
For Petitioner:
Sandra Presnell, pro se
Morganton, North Carolina 28655
For Respondent:
Elizabeth Guzman
Assistant Attorney General
Broughton Hospital
Morganton, North Carolina 28655
ISSUES
Whether the Respondent engaged in an unlawful State employment practice because of
the Petitioner’s gender. (N.C.G.S. § 126-36)
WITNESSES
For Petitioner:
Sandra Presnell
For Respondent:
Stephanie Greer
Anna Pittman
Joyce Short
EXHIBITS
For Petitioner
Exhibits 1 and 2:
For Respondent:
Exhibit 1
BASED UPON careful 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 undersigned Administrative Law Judge (ALJ) makes the following
Findings of Fact. In making these findings of fact, the ALJ 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 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.
The Petitioner has been continuously employed as a Health Care Technician I at
Broughton Hospital since 2002.
2.
On June 28, 2007 she applied for a position as a Health Care Technician II in the
Admitting Services department of the hospital.
3.
The job posting for the position indicated that “knowledge of North Carolina
Commitment law and EMTALA guidelines is preferred” and that “Applicant should
possess good communication skills and ability to work with patients, families, mental
health centers, and other community personnel.”
4.
There were ten applicants for the position that were screened to interview, six males
and four females, all of whom were interviewed by then-Director of the Adult
Admissions Unit and Admitting Services, Stephanie Greer, and Nursing Supervisor,
Anna Pittman. Each applicant was asked an identical set of questions.
5.
A male Health Care Technician was selected for the position. Ms. Greer informed
Petitioner that she was not selected by letter dated September 6, 2007.
6.
On October 8, 2007, Petitioner filed a Petition for a Contested Case Hearing, alleging
she was denied the promotion due to her sex.
7.
Petitioner testified at the Hearing that she believed that the hospital hired a male
candidate to replace the one that had vacated the position due to retirement. She felt
also that her seventeen years of State employment should have been considered,
along with the one-month of cross-training she had done in the Admitting Office prior
2
to her application for the position. Petitioner testified that she had been told she
would have an advantage over other candidates for an Admitting Office position if
she were to cross-train there.
8.
Ms. Greer testified that the Health Care Technician IIs in Admitting Services were the
“public face” of Broughton Hospital and as such, were required to have a good
working knowledge of State and federal law that bears directly on admissions to State
psychiatric facilities, as well as an ability to communicate well with a variety of
community professionals and entities within the admitting process.
9.
Ms. Greer testified that Petitioner’s responses to interview questions, particularly
about legal aspects of the admission process, were not as strong as those of the
selected applicant. According to Ms. Greer, the selected applicant had obviously
prepared for his interview by studying, in particular, the federal law known as
“EMTALA”, the Emergency Treatment and Active Labor Act. He had an
Associate’s Degree in Business Administration which also showed a strong
knowledge in working with computers. In addition, Ms. Greer determined he had
articulated well the responsibilities of the position, was well-spoken and was very
personable.
10.
In a post-interview discussion about her non-selection, Petitioner asked Ms. Greer
why she had not been chosen and what she could do to improve her chances for the
next opportunity. Ms. Greer explained that Petitioner came across to her and to
others at times as harsh, gruff and rude. She praised Petitioner’s strong work ethic,
but pointed out that Petitioner’s answers to questions were minimal and did not
demonstrate the level of communication skills needed for the Admissions Office.
11.
Ms. Greer also explained in her testimony that the cross-training she instituted in
Admitting Services, which the Petitioner completed, was to provide flexibility in
coverage in the event one of the Health Care Technicians in Admitting Services was
off. The training included pre-registering patients, taking vital signs, filing and
copying, and entering data in the computer. It did not include the actual
communication and decision-making process necessary for admission to the hospital,
the most critical piece of the job in Admitting Services.
12.
Ms. Greer testified that there was no agenda to select a male for the position. She
indicated that the last opening in the Admitting Services for a Health Care Technician
II had been filled by a female.
13.
Anna Pittman testified that she had worked as a nurse on the ward where the
Petitioner was assigned prior to her promotion to Nursing Supervisor and observed
Petitioner’s interaction with others. She described Petitioner as a good worker, but
said she could be abrupt at times.
14.
Joyce Short, the recruitment coordinator in Human Resources at Broughton Hospital,
testified that the Admitting Office staff’s male-to-female ratio was 50-50. She
3
indicated there was no plan or agenda to select a male for the Health Care Technician
II position.
15.
Petitioner did not specify any objective evidence of discrimination in the hiring and
selection process for the Health Care Technician II position, but based her claim on
her belief of what the hiring manager’s intentions were in selecting a male applicant
for the position.
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 pursuant to Chapter 126 and Chapter 150B of the North
Carolina General Statutes. The parties received proper notice of the hearing in the
matter. To the extent that the findings of fact contain conclusions of law, or that the
conclusions of law are findings of fact, they should be so considered without regard
to the given labels.
2.
A prima facie case of sex discrimination is established when an employee shows: (1)
she is a member of a protected class; (2) she was performing satisfactorily; (3) she
suffered an adverse employment action; and (4) a similarly situated employee
received favorable treatment. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 125
L. Ed. 2d 407, 113 S. Ct. 2742 (1993).
3.
After a prima facie showing is made, a presumption arises that the State unlawfully
discriminated or retaliated against the employee. To rebut the presumption of
discrimination or retaliation, the employer must produce a legitimate, nondiscriminatory reason for its actions. Thereafter, the employee may prevail by
showing that the proffered reason was not the true reason for the employment
decision, but was merely a pretext for discrimination or retaliation. Enoch v.
Alamance County Dep't of Soc. Servs., 164 N.C. App. 233, 595 S.E.2d 744, (2004);
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993).
4.
Employment discrimination law recognizes that discrimination in employment cases
fall within one of two categories: 'pretext' cases and 'mixed-motives' cases. Price
Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).
5.
Many Courts, including the Fourth Circuit held that a mixed motive analysis did not
apply unless the Petitioner had produced direct evidence of discrimination. Fuller v.
Phipps, 67 F.3d 1137 (4th Cir. 1995). The U.S. Supreme Court addressed this issue in
Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148 (2003), holding that an
4
employee is entitled to a mixed motive analysis without regard to whether the
evidence presented is direct or circumstantial and thus overruled Fuller.
6.
Under the pretext analysis, an employee may establish a claim by presenting
sufficient evidence that the protected trait “actually motivated the employer’s
decision.” Murray v. United Food & Commercial Worker’s Union, 100 Fed. Appex.
165, 2004 WL 1254979 (4th Cir. 2004). Under the mixed motive analysis, an
unlawful employment practice is established when the complaining party establishes
that race, color, national origin, or sex was a motivating factor for any employment
practice, even though other factors also motivated the practice. Under the mixed
motive analysis there are however limited remedies available if the Petitioner
prevails.
7.
In this case the evidence is void of any showing that anyone consulted any EEO plan
for Broughton. There were no racial or gender goals applicable to the disputed
position. Further, there was no evidence regarding operation of any type of plan,
utilization analysis or target dates regarding the position sought by Petitioner. The
decision to select the successful applicant over the Petitioner was not made pursuant
to a bona fide affirmative action plan or any other type of plan and the Undersigned
finds insufficient foundational evidence to support a basis of direct discrimination.
8.
The Undersigned has examined whether discrimination was evident from the
Respondent’s different treatment of Mr. Duckworth (the successful applicant) from
the Petitioner.
9.
The Undersigned concludes that Petitioner has failed in her burden of proof that the
reasons Respondent articulated for its hiring decision were not its true reasons but a
pretext for discrimination.
10.
In fact in this case, there were two individuals on the hiring panel. There were 10
applicants and all 10 were interviewed. Relevant to this case, Both Petitioner and
Mr. Duckworth were qualified for the position sought, each having different
strengths. Of note was and is Mr. Duckworth’s holding an Associate Degree in
Business and his performance during the interview process.
11.
Placing more weight upon different strengths does not constitute disparate treatment
absent prevailing evidence supporting illegitimate reasons for an employer’s actions.
Petitioner’s evidence and the burden of proof she carries failed to sufficiently dispute
Respondent’s evidence that the factors and assessments of education skills and
knowledge, and performance during the interviews, not gender discrimination,
precipitated the Respondent’s employment decision. Petitioner’s evidence taken in
whole, under current case law analysis, does not overcome Respondent’s nondiscriminatory reasons for its hiring decision.
5
BASED UPON the foregoing Findings of Fact and Conclusions of Law the Undersigned
makes the following:
DECISION
There is sufficient evidence in the record to properly and lawfully support the
Conclusions of Law cited above. Petitioner failed to carry her burden of proof by a
preponderance of the evidence that the Respondent discriminated against her on the basis of her
gender. The finder of fact cannot properly act upon the weight of evidence, in favor of the one
ultimately having the onus, unless it overbear, in some degree, the weight upon the other side.
Petitioner’s evidence does not overbear in that degree required by law the weight of evidence of
Respondent. Respondent’s actions were in accordance with all applicable State laws and rules.
NOTICE
The agency making the final decision in this contested case is required to give each party
an opportunity to file exceptions to this decision, and to present written arguments to those in the
agency who will make the final decision. N. C. Gen. Stat. § 150B-36(a).
In accordance with N.C. Gen. Stat. § 150B-36 the agency shall adopt each finding of fact
contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the
preponderance of the admissible evidence. For each finding of fact not adopted by the agency,
the agency shall set forth separately and in detail the reasons for not adopting the finding of fact
and the evidence in the record relied upon by the agency in not adopting the finding of fact. For
each new finding of fact made by the agency that is not contained in the Administrative Law
Judge’s decision, the agency shall set forth separately and in detail the evidence in the record
relied upon by the agency in making the finding of fact.
The agency that will make the final decision in this case is the North Carolina State
Personnel Commission. State Personnel Commission procedures and time frames regarding
appeal to the Commission are in accordance with Appeal to Commission, Section 0.0400 et seq.
of Title 25, Chapter 1, SubChapter B of the North Carolina Administrative Code (25 NCAC 01B
.0400 et seq.).
IT IS SO ORDERED.
This the 15th day of April, 2008.
________________________________
Augustus B. Elkins II
Administrative Law Judge
6