STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF BUNCOMBE 10 OSP 07416
Tiffany Ann Benson,Petitioner,
vs.
Debbie Hughes, North Carolina Department of Correction,
Respondent. / )
))
))))
) / DECISION
This contested case was heard before Beecher R. Gray, Administrative Law Judge, in the Henderson County Courthouse, in Hendersonville, North Carolina, on October 18 and 19, 2011. Petitioner submitted a proposed decision on December 15, 2011. Respondent filed exceptions to Petitioner’s proposed decision on December 22, 2011.
APPEARANCES
Petitioner: Linda Vespereny, Esq.
Law Offices of Glen C. Shults
959 Merrimon Avenue, Suite 204
Asheville, North Carolina 28804
Respondent: Oliver G. Wheeler, IV
Assistant Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, North Carolina 27602
ISSUE
Whether Respondent North Carolina Department of Correction (“DOC”) met its burden under N.C.G.S. § 126-35 to show “just cause” to terminate Petitioner’s employment in light of the totality of the facts and circumstances surrounding Petitioner’s conduct.
EXHIBITS
For Respondent:
R. Ex. 1. NC Dept. of Correction Policy-Conduct of Employees, Issue Date 1/28/08
R. Ex. 2. NC DOC Policy – Failure to Cooperate or Hindering and Investigation, Revision May 1, 2006
R. Ex. 3. NC DOC Policy – Personal Dealings with Offenders of the Dept. of Correction, Effective 12/1/1997
R. Ex. 4. June 29, 2010 Dismissal letter; June 10, 2010 Memo to Reggie Weisner, Acting Western Region Director from Debbie M. Hughes, Superintendent; June 5, 2010 Notification of Pre-Disciplinary Conference; June 7, 2010 Memo to Tiffany Benson from Debbie Hughes RE: Recommendation for Disciplinary Action; Pre-Disciplinary Conference Acknowledgement Form; NC Dept. of Correction, DOC Policy & Benefits, New Employee Statement of Understanding; Acknowledgement of Receipt of Personal Dealings with Offenders Policy; Acknowledgement of Receipt of Personal Relationships between Division Staff Memorandum and Personal Relationships between Division Staff Guidelines; Acknowledgement of Violence in the Workplace Guidelines; Acknowledgement of Conditions of Continued Employment; February 17, 2010 Temporary Reassignment of Tiffany Benson
R. Ex. 7. NC DOC Internal Investigation, Employee/Witness Statements signed by Benson on Sept. 3, 2009; February 13, 2010 (two statements signed); March 4, 2010; and June 7, 2010
R. Ex. 8. NC DOC Internal Investigation, Employee/Witness Statement signed by Mike Ball on March 4, 2010
R. Ex. 10. NC DOC Statement by Witness, Benson, statement signed on 7/23/09
R. Ex. 11. NC DOC Statement by Witness, Benson, statement signed on 7/23/09
R. Ex. 12. NC DOC Statement by Witness Benson, Statement signed 7/22/09
R. Ex. 13. EEO Complaint from Tiffany Benson, 3/17/2010
R. Ex. 14. Written Warning dated October 16, 2008; Two Memos to Roger Moon from Debbie M. Hughes dated September 8, 2008 RE: Unacceptable Personal Conduct
R. Ex. 16. NC DOC Disciplinary Policy and Procedures, Revised November 1, 2001
R. Ex. 17. NC DOC Offender Information for inmate Kelly P. – Offender’s Disciplinary Infractions History
For Petitioner:
P. Ex. 1. NC DOC Policy – New Hire Orientation Manual, Revised 5/1/06- re How long Disciplinary Actions are Active; How are Disciplinary Actions Resolved; Removal of Disciplinary Documentation from Employee Personnel File
P. Ex. 3. NC DOC Policy and Procedure Development, Issued 1/16/08
P. Ex. 4. NC DOC Appendix to Disciplinary Policy, Investigative Process, Appendix E, Effective October 1, 1995
P. Ex. 6. DOC Personnel Manual, Appendix C, Personal Conduct, effective 10/1/1995;
P. Ex. 7. NC DOC New Hire Orientation Manual, Special Provisions – Conditions of Employment, Revision May 1, 2006, Relationships between Employees; E-mail Acceptable Use Policy; NC DOC New Hire Orientation Manual, Unlawful Workplace Harassment & Professional Conduct Policy; Human Relations in the Workplace, Revision 5/1/06
P. Ex. 8. NC DOC Information Security Policies Acknowledgement Form
P. Ex. 9. NC DOC The Appraisal Process (TAP) for Benson, Appraisal Period 7/1/08-5/31/09; Final Evaluation, Section D, dated 6/10/10; Gate Log, List of Movements, 2/1/09-7/31/09 for Benson; Employee Time Report for period ending 6/20/09 and 6/27/09
P. Ex. 12. E-mail from T. Benson to K. Burress, 8/6/09
P. Ex. 15. Memo to Hughes from Mills, dated 9/12/09; Letter to T. Benson from Hughes dated 9/23/09; Request for Reasonable Accomodation
P. Ex. 17. NC DOC Internal Investigation, Employee/WitnessForms signed by Benson on 9/3/09, 2/13/10 (total of three statements signed on 2/13/10); 3/4/10 (total of two statements signed on 3/4/10), 6/7/10 and 4/21/10
P. Ex. 18. Fax Cover Sheet to Roger Moon dated 9/11/09, Redacted Statements by Inmate Witnesses Tanna S. (9/3/09); Tenshia S. (9/3/09); Tina R. (9/3/09); Kelly P. (9/4/09); Bethany N. (undated); Redacted Statement of staff member Jesse C. (8/30/09)
P. Ex. 19. P. Ex. 19. Memo to Steve Bailey, Western Region Director, from Hughes, 2/17/10
P. Ex. 24. P. Ex. 24. Copies of photographs and backs of photographs; Memo from Burress to Moon, 12/15/09; Memo from Sisk to Moon, 12/17/09; Memo to Bailey from Moon, 12/28/09; Letter to Burress from Moon and Bailey, 1/6/10
P. Ex. 32. Application for Employment, Debbie Hughes, 1/9/93; Personnel Report for Hughes, 1/19/93; Application for Employment, Debbie Hughes, 9/29/94; Personnel Action Report for Hughes 12/1/94; Personnel Action Report for Hughes, 7/16/99; Personnel Action Report for Hughes, 12/4/03; Personnel Action Report for Hughes, 5/23/06; Personnel Action Report for Hughes, 5/2/08; Performance Log for Hughes; NC DOC The Appraisal Process (TAP) for Hughes, 6/1/10-5/31/11
P. Ex. 33. NC DOC Internal Investigation Employee/Witness form Signed by Mike Ball, 3/4/10; NC DOC Employee Perofrmance Review Form; Application for Employment, Coy Michael Ball, 4/3/87; Written Warning to Ball, 11/20/92; NC DOC Personnel Report, 11/16/92; Letter to Mark Hughes from Ball, 9/15/93; Memo to Spicer from M.B. Hughes, 11/22/93; Personnel Report for Ball, 11/22/93; Memo from Bailey to Bennett, 3/14/06; Personnel Action Report, 3/13/06
P. Ex. 37. Written warning to Jesse C, 5/3/2010
P. Ex. 38. Written Warning to Joice B., 6/17/11; Written Warning to Cynthia S., 10/13/08; Written Warning to Gennea S., 9/18/06; Letters to Billy B., dated 7/9/10 and 6/10/10
P. Ex. 39. Statements by Jeremy C., 5/19/09, 6/1/09 (with letter from inmates), 6/10/09, 6/22/09; Letter to Patterson and Moon from Jeremy C.; E-mail from Jeremy C. to Bartlett and Pless, 6/1/09; E-mail from Jeremy C. to Bartlett, 6/9/09; E-mail from Sgt. Curtis R. to Burress, 5/27/09; E-mail from Sgt. Curtis R. to Jeremy C., 5/28/09; E-mail from McGeary to Sgt. Curtis R., 5/31/09; NC DOC Disciplinary Review, re inmate Kelly P.; Memo to Moon from Hughes, 7/17/09
P. Ex. 41. Memo from Burress to Hughes, 7/7/09; Temporary Duty Reassignment, Sgt. Curtis R., 8/11/09; Notification of Pre-Disciplinary Conf., Sgt. Curtis R., 8/11/09; Recommendation to Demote, Sgt. Curtis R., 8/13/09; Personnel Action, Sgt. Curtis R., 8/20/09; Written Warning Sgt. Curtis R., 9/28/09; Reassignment Sgt. Curtis R., 9/28/09
P. Ex. 42. Employee/Witness Statement Form, Curtis R., 9/1/09
P. Ex. 43. NC DOC Offender Information, Inmate Tanna S.; NC DOC Inmate Infractions, Inmate Tanna S.; NC DOC Offender’s External Movements, Inmate Tanna S.; Inmate Infraction/Classification/Control Summary, Inmate Tanna S.; Housing Assignments, Inmate Tanna S.; Visitation History, Inmate Tanna S.; Offender Arrest History, Inmate Tanna S.; Inmate Infraction Information, Inmate Tanna S.; Inmate Summary Record, Inmate Tanna S.; Offender Sentence Information, Inmate Tanna S.; Inmate Release Plan, Inmate Tanna S.; Case Management Notes, Inmate Tanna S.
P. Ex. 44. NC DOC Offender Information, Inmate Tenshia S.; Offender’s External Movements, Inmate Tenshia S.; Housing Assignments, Inmate Tenshia S.; Inmate Release Plan, Inmate Tenshia S.; Case Management Notes, Inmate Tenshia S.; DOC Community Risk Assessment, Inmate Tenshia S.
P. Ex. 48. Dismissal Letter to Keshia R., 6/7/10
WITNESSES
For Respondent: Debbie Hughes, Coy Michael Ball, Tiffany Benson
For Petitioner: Dickie Bryson, Jeremy Canipe
FINDINGS OF FACT
In making Findings of Fact, the undersigned has weighed all the evidence and assessed the credibility of the witnesses, taking into account factors for judging credibility of witnesses, including, but not limited to, the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which the witness testified, the demeanor of the witness, the witness’ interests, bias, candor, and any prejudice the witness may have, as well as whether the testimony of the witness is reasonable and consistent with other believable evidence in the case. After careful consideration of the sworn witness testimony presented at the hearing, the documents and exhibits admitted into evidence, and the entire record in this proceeding, the undersigned makes the following FINDINGS OF FACT:
1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.
2. Petitioner Tiffany Ann Benson (“Petitioner”) is a former employee of Respondent North Carolina Department of Correction (“Respondent”). Beginning in February 2007, Petitioner was employed as a correctional officer at Respondent’s Black Mountain facility for women and, later, at the Swannanoa Correctional Center for Women. While still employed at the Swannanoa Correctional Center for Women, Petitioner was reassigned to Craggy Correctional Center. (Transcript (“Tr.”) pp. 7, 16, 258)
3. By letter dated June 29, 2010, Petitioner was terminated for unacceptable personal conduct. Specifically, the termination letter charged her with using profanity in the presence of inmates (but not at them), as well as insubordinate conduct by refusing to make a written statement during a March 4, 2010 meeting. (Tr. pp. 8, 297, 302, R. Ex. 4)
4. The centerpiece of this case is Petitioner’s alleged conduct at a meeting with her supervisor on March 4, 2010. At that meeting, Superintendent Debbie Hughes attempted to pursue further questioning of Petitioner regarding inmate allegations against Petitioner. At an earlier meeting, Petitioner had admitted that on one occasion she had used the term “bullshit” within hearing distance of inmates. (Tr. pp. 8, 297) In order to appreciate the totality of the facts and circumstances of this case, certain background information was admitted into evidence, beginning with several issues that arose in the preceding year.
Background: Petitioner’s Involvement with the Investigation and Reassignment of Sgt. Curtis R.
5. In May 2009, case manager Jeremy C. observed what he believed to be various rule violations by inmate Kelly P. Each time he attempted to have inmate Kelly P. written up for these violations, Sgt. Curtis R. (Petitioner’s supervisor at the time) chose to “counsel” inmate Kelly P. rather than issue a written infraction. Counseling an inmate rather than issuing an infraction results in less severe repercussions to the inmate. For instance, the accumulation of infractions by an inmate can result in an increase in the time the inmate would be required to serve before being paroled, segregation of the inmate, and/or denial of certain privileges. (Tr. pp. 157-160, 166-67, 385-389, P. Ex. 39)
6. In addition, Jeremy C. received information that inmates Tanna S. and Tenshia S. were involved in bringing contraband from Manna Food Bank into the prison unit and he reported this to management. Jeremy C.’s supervisor, Dana Bartlett, later sent an e-mail to Assistant Superintendent Burress on June 9, 2009 reporting that Jeremy C. notified her that various inmates, including Kelly P. and “the ex-Manna girls,” “were in and out of Sgt. Curtis R.’s office from 6:30 a.m. until a quarter to three” on the preceding Sunday. Additionally, the email reported that Jeremy C. notified her that e-mails from Assistant Superintendent Burress to Sgt. Curtis R. were made available to those inmates to read and that “four and five inmates at a time were standing behind Sgt. Curtis R. as he pulled up information on OPUS [Respondent’s Management Information System].” Further, Ms. Bartlett stated in her e-mail that Correctional Officer Rutledge “was frustrated by the fact that . . . Tenshia S. was in Tanna S’s room almost all day” and that it is reported that the email Jeremy C. sent to Assistant Superintendent Burress “regarding the info on Tenshia S., [etc.] was made available for inmates to read, and that is being talked about amongst the inmates.” (Tr. pp. 387-388, P. Ex. 39)
7. During a June 16, 2009 staff meeting, Petitioner questioned Sgt. Curtis R. about his dismissal of inmates’ rule violations, particularly those of inmate Kelly P., who was often seen in Sgt. Curtis R’s office. Inmate Kelly P. was known by the correctional officers and other staff to be a ringleader and was called “mom” by the inmates. During the course of the staff meeting, the name of case manager Jeremy C. came up, who, as mentioned earlier, recently had cited inmate Kelly P. for various violations which later were dismissed by Sgt. Curtis R. Sgt. Curtis R. made several derogatory remarks regarding Jeremy C. in the meeting, the most noteworthy of which was that Jeremy C. had been known as the “assassin” in facilities where previously he had worked. (Tr. pp. 47, 135-136, 360-362, 393-394, 398-399, P. Exs. 39 and 41)
8. Thereafter, Petitioner notified Jeremy C. about what Sgt. Curtis R. had said about him in the June 16, 2009 staff meeting. Jeremy C. complained that Sgt. Curtis R. was creating a “hostile environment” for him and an investigation ensued. Petitioner and other staff present at the June 16, 2009 staff meeting were asked to provide written statements. Four (4) staff members confirmed that Sgt. Curtis R. referred to Jeremy C. as an “assassin” in the June 16, 2009 staff meeting. (Tr. pp. 131-132, 138-139, 361, 391, 397-398, P. Ex. 41)
9. Staff members later learned that Petitioner was responsible for notifying Jeremy C. of Sgt. Curtis R.’s remarks. (Tr. pp. 315-316)
10. Sgt. Curtis R. was very popular with both the inmates and the staff members as he was easier on inmates and staff than was Sgt. Mills. Sgt. Mills was a relatively new sergeant who had served as a “floating sergeant” and ran the shift much differently than did Sgt. Curtis R. Sgt. Mills was not popular with staff or inmates because she disciplined employees for “time management” issues, made sure inmates were given correct bed assignments according to their jobs, worked on inmate idleness issues, was more rigid and blunt than Sgt. Curtis R., and sometimes “talked down” to the officers. (Tr. pp. 43, 139-143, 305, 323-325, 341, 349-351, 362-363, 365-366, 382, 397, 405)
11. Sgt. Curtis R. was known to have inmates in his office and to dismiss write-ups on inmates. According to Jeremy C., Sgt. Curtis R. protected troublemakers, shared confidential information with inmates, and made changes to bed assignments so that lesbian inmate couples could be together. (Tr. pp. 158-161, 302-303, 362-363, 323, 385, 389-390, 392-396, P. Ex. 39)