ROBIN J. WATTERS
DEPARTMENT OF ADMINISTRATION, PERSONNEL APPEAL BOARD AND COMMUNITY COLLEGE OF RHODE ISLAND
Providence County Superior Court PC-2014-4314.
For Plaintiff: V. Edward Formisano, Esq.
For Defendant: Jeffrey S. Michaelson, Esq. George H. Rinaldi, Esq. Michael R. McElroy, Esq. Ronald A. Cavallaro, Esq.
Before this Court is the appeal of Robin J. Watters (Ms. Watters or Petitioner) from a decision of the Department of Administration, Personnel Appeal Board (PAB). In that decision, the PAB found that Ms. Watters' appeal regarding her termination of employment by Community College of Rhode Island (CCRI or Respondent) was untimely filed. Jurisdiction is pursuant to G.L. 1956 § 42-35-15 of the Administrative Procedures Act.
I Facts and Travel
Ms. Watters began working for CCRI in August of 2010 as a temporary employee, and in May of 2013 she became a full-time Senior Teller at CCRI's Providence campus. (Compl. ¶¶ 4, 5.) From May 5, 2013 until her termination, Ms. Watters was placed on probationary status. Id. ¶ 5. In a letter dated October 16, 2013, CCRI's Director of Human Resources, Sheri L. Norton (Ms. Norton), informed Ms. Watters in writing that her employment with CCRI was terminated effective November 1, 2013. Id. ¶ 6; see Bd. R., Ex. 18, State Ex. 1, Oct. 16, 2013 Letter. The reason given for Ms. Watters' termination was a purported failure to properly handle and safeguard cash deposits. (Bd. R., Ex. 18, State Ex. 1, Oct. 11, 2013 Memo.) A memorandum from Ms. Watters' supervisor further outlining the issues with her job performance was attached to the termination letter. Id. The termination letter explained that Ms. Watters would remain on Administrative Leave with Pay until the date of her termination; she was told to contact Human Resources should she have any questions. Id. Additionally, Ms. Watters was informed that she could contact her union representative. Id. The October 16, 2013 termination letter made no mention of Ms. Watters' right to appeal the termination to the PAB. Id.; see also Hr'g Tr. at 7:20-23.
On November 1, 2013, Ms. Norton sent a letter to Petitioner's counsel in response to a request for Petitioner's personnel file; however, Ms. Norton indicated in this letter that Ms. Watters' termination document had not yet been completed. (Bd. R., Ex. 18, State's Ex. 4, Nov. 1, 2013 Letter.) On December 9, 2013, Ms. Watters received her Termination Action form, also known as a CS-5, (Termination Action form). (Hr'g Tr. at 14:11-13; see Bd. R., Ex. 18, State Ex. 2, Termination Action form.) The Termination Action form notified Ms. Watters of her right to appeal to the PAB within thirty days. (Bd. R., Ex. 18, State Ex. 2, Termination Action form; see also Hr'g Tr. at 14:11-13.)
Subsequently, Ms. Watters filed an appeal of her termination to the PAB on January 7, 2014, which fell within thirty days of the mailing of the Termination Action form. (Bd. R., Ex.1, Jan. 7, 2014 Letter of Appeal.) On June 6, 2014, the PAB conducted a jurisdictional hearing to determine the timeliness of Ms. Watters' appeal.
Ms. Watters testified at the hearing that she learned of her termination on October 17, 2013. (Hr'g Tr. at 30:6-12.) The president of her union called her to inform her about the termination action, and that same day she received the termination letter dated October 16, 2013. Id. Ms. Watters testified that she understood the October 16 letter "was notification [she] was terminated, but no notification that [she] could file an appeal, that [she] had a right to file an appeal." Id. at 14:8-11. It was the Termination Action form she received on December 9, 2013 that "was the first notification [she] had that [she] could file an appeal." Id. at 16:4-5. Ms. Watters also testified as to her confusion about her status as a member of the union; she believed she was paying dues and was a member, but the union informed her they would not represent her in an appeal of her termination because she was a probationary employee. Id. at 19:21-20:6. Ms. Watters testified that she sought representation to appeal her termination when she spoke to the union on October 17, 2013 and, when the union explained they could not represent her, she proceeded to hire a private attorney. Id. at 31:9-18.
Ms. Watters also addressed the jurisdictional questionnaire that the PAB sent to her, and she explained that she filled out some of the answers but that her lawyer filled out others. Id. at 32:6-19. In the questionnaire, Ms. Watters responded that the adverse action was mailed to her on December 9, 2013, which would mean that she considered the Termination Action form to be the adverse action. (Bd. R, Ex. 4, Jurisdictional Questionnaire.) The underlying appeal issue, as set forth in the questionnaire, alleged that there was an insufficient basis for Ms. Watters' termination by CCRI. Id. There was some discussion throughout the hearing about why Ms. Watters was terminated, and CCRI was very clear that Ms. Watters was not being accused of, nor was she terminated for, stealing funds. (Hr'g Tr. at 54:11-20.) Rather, the concern was the mishandling and failure to account for funds. Id. However, the PAB was very cognizant of the fact that the hearing was jurisdictional and that the underlying reasons for termination and appeal were not before it. Id. at 54:21-23.
Ms. Norton testified at the jurisdictional hearing as well, regarding the time discrepancy between the October 16, 2013 termination letter and the Termination Action form; she explained that her office does draft the Termination Action form at the same time as the termination letter, but that the Termination Action form may be delayed because "it cannot get sent down to the State until we have the balances from the payroll office." Id. at 43:7-14. Ms. Norton testified that, in her experience, a Termination Action form is "processed subsequent to the termination letter" in order to allow for the necessary vacation time and other such payroll calculations. Id. at 44:9-10. Ms. Norton also agreed with Ms. Watters that there was nothing in the October 16, 2013 termination letter that notified Ms. Watters of her right to appeal. Id. at 48:11-18. Ms. Norton herself never informed Ms. Watters of that right prior to the mailing of the Termination Action form. Id. The Collective Bargaining Agreement that covers CCRI employees, however, is available online, and it explains the grievance process via the union; the CCRI employee handbooks are also available online. Id. at 50:4-24. The PAB clarified that Ms. Watters' appeal action was based on the Collective Bargaining Agreement. Id. at 83:16-20.
Ms. Norton further discussed the process leading up to the termination of a probationary employee. She testified that there may be counseling for an employee, explaining the issues with performance that may lead to discharge, but Ms. Watters did not have any such counseling. Id. at 51:9-22. In the case of Ms. Watters, Ms. Norton testified that she "believe[d] [Ms. Watters'] supervisor felt that what had happened was serious. It was a serious breach of protocol. There are certain situations . . . that it's felt that counseling isn't going to be a value." Id. at 52:1-7. The PAB also heard argument and testimony regarding whether Ms. Watters was improperly denied a Loudermill letter or hearing. However, a Loudermill letter or hearing applies only to employees who are classified, and because Ms. Watters was a probationary employee, CCRI was not required to take any pretermination action. See Kenyon v. Town of Westerly, 694 A.2d 1196, 1200 (R.I. 1997). Furthermore, according to Ms. Norton, Ms. Watters did have an opportunity to explain her actions during an investigatory hearing. (Hr'g Tr. at 68:1-9.) Ms. Watters, however, testified that she never had the opportunity to speak at an investigatory hearing. Id. at 76:8-14.
The PAB provided opportunity for extensive argument from the attorneys at the hearing as well. Significantly, Ms. Watters' attorney was unable to identify any statutory language requiring a termination letter to include notification of the right to appeal to the PAB. Id. at 85-86. The attorney for CCRI explained that the Termination Action form is not mailed simultaneously with the termination letter because the Termination Action form is contingent on resolving any payroll issues. He elaborated that the forms can "take an awfully long time" to reach the employee, and that if this form is ...