APPEAL OF JAMES COLE (New Hampshire Personnel Appeals Board)
Argued: May 15, 2018
Snyder and John S. Krupski, of Concord (Mr. Snyder on the
brief, and Mr. Krupski orally) for the petitioner.
J. MacDonald, attorney general (Scott E. Sakowski, assistant
attorney general, on the brief and orally), for the
appeal arises from the termination from employment of the
petitioner, James Cole, by the respondent, the New Hampshire
Department of Information Technology (DOIT). The New
Hampshire Personnel Appeals Board (PAB) upheld Cole's
termination. On appeal, Cole argues that his termination did
not comply with New Hampshire Administrative Rules, Per
1002.08 because he did not receive three written letters of
warning in accordance with New Hampshire Administrative
Rules, Per 1002.04 for the same or substantially similar
conduct or offense. DOIT argues that we lack subject matter
jurisdiction to decide this case, and, in the alternative,
that Cole's termination complied with Per 1002.08 and Per
1002.04. Finding that we have jurisdiction, we affirm the
following facts were found by the PAB or are otherwise
derived from the record. Cole had been a DOIT employee for
fifteen years as of May 2015. During that month, his position
was defunded and he was transferred to a new position within
DOIT at the New Hampshire Department of Transportation.
Cole's supervisor in his new position was Charles Burns.
Cole's initial assignments was overhauling an Account
Security Form (ASF). This was intended to be a short-term
project. Although some aspects of Cole's work on this
project were satisfactory, his incorrect processing of other
aspects of the overhaul resulted in audits being conducted on
the forms to ensure accuracy. Cole was also initially
assigned a "Wireless Access Point" Project (WAP).
This project required communication with customers who were
requesting installation of a WAP, and coordination with the
persons who were to install the WAPs. However, Cole's
communications were inadequate. This resulted in customers
not knowing how to use the WAPs after they were installed, or
even that the WAPs had been installed.
March 1, 2016, Burns issued Cole a memorandum of counsel to
document and address his concerns with Cole's work on the
ASF and WAP projects. The memorandum included recommended
corrective actions to address the problems with both
projects. After the memorandum was issued, however, Cole
continued to have problems with the ASF project. Customers
continued to complain that there were problems with the form.
An audit revealed that 20% of a sample of forms that Cole
processed contained errors, the majority of which were
serious. Cole ultimately performed eleven major revisions to
the ASF, but the revised form was substantially similar to
the original one and the project took much longer to complete
April 13, 2016, Burns issued Cole a letter of warning. The
letter cited Cole's "failure to meet any work
standard" and "failure to take corrective action as
directed" under Per 1002.04(b)(1) and (2) as grounds for
its issuance. The letter also detailed Cole's mishandling
of the ASF project, and contained a corrective action plan.
6, 2016, Cole was issued a second letter of warning. This
letter also cited Cole's "failure to meet any work
standard" and "failure to take corrective action as
directed" under Per 1002.04(b)(1) and (2). This letter
partially concerned Cole's work on the "IMP"
project. Cole was originally assigned this project in
December of 2015. Cole was responsible for holding a
"kickoff" meeting to discuss the details of the
project. Despite being reminded on several occasions by Burns
about the need to hold the meeting, Cole did not hold one
until April 2016. Even after the kickoff meeting was held,
there was no timeline for the project and customers did not
have some necessary information. The May 6, 2016 letter of
warning also addressed issues with a different project that
had been assigned to Cole to establish internet connectivity
at a particular location. Cole had problems establishing
timelines for this project, communicating with interested
parties, and keeping customers satisfied. This letter of
warning, like the first letter as well as the memorandum,
contained a corrective action plan to address the problems
identified in the letter.
7, 2016, Burns conducted a performance evaluation of Cole.
Burns noted several ongoing concerns, including Cole's
lack of communication, his lack of progress and timelines,
and general inaccuracies in his work. Two days later, when
Burns spoke to Cole about an overdue project, Cole told Burns
that he was not given enough time to complete the project. A
short time later, Burns saw Cole doing a crossword puzzle at
his desk during work hours. When asked if he was on a break,
Cole said he was not.
16, 2016, the DOIT Commissioner, Denis Goulet, issued Cole a
third letter of warning. This letter stated that the quality
of Cole's work continued to be below expectations, as
detailed in the June 7 performance evaluation and the
previous letters of warning and memorandum of counsel. The
letter also referenced the crossword puzzle incident. Cole
was dismissed from employment on July 29, 2016, as detailed
in a final notice of dismissal dated August 1, 2016.
appealed his dismissal to the PAB. He was represented by the
State Employees' Association/Service Employees'
International Union (SEA/SEIU) at the PAB hearing. The PAB
heard testimony from Burns, Burns' supervisor, a human
resources administrator, and Cole, and received into evidence
the memorandum of counsel, the three letters of warning, the
June 7 performance evaluation, and the August 1 notice of
dismissal. The PAB concluded that the letters of warning were
issued for the "same or substantially similar conduct or
offenses," thus satisfying the requirements of Per
1002.08(c)(1) for dismissal. The PAB found that "all
three . . . [letters] were issued to specifically address
[Cole's] poor quality of work," and therefore all
three letters were issued for "failure to meet any work
standard" under Per 1002.04(b)(1). Specifically
addressing the third letter and the crossword puzzle
incident, the PAB noted that Cole stated he did not have
enough time to complete a project, but was then found working
on a crossword ...