STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF CABARRUS 04 OSP 0955
BONNIE J. WINN, RN, )
Petitioner, )
)
v. ) DECISION
)
NORTH CAROLINA DEPARTMENT )
OF CORRECTION, )
Respondent. )
This matter was heard before the Honorable William A. Creech, Temporary Administrative Law Judge, on December 8 and 9, 2004 in Charlotte, North Carolina.
APPEARANCES
For Petitioner: Bonnie Winn, Pro Se
1005 California Street
Kannapolis, N.C. 28083
For Respondent: Robert K. Smith, Esq.
Neil Dalton, Esq.
Assistant Attorneys General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, North Carolina 27699-9001
ISSUE
Did Respondent meet its burden to show just cause to dismiss Petitioner under N.C.G.S. § 126-35?
Based upon the official documents in the file, sworn testimony of the witnesses and other competent and admissible evidence, the undersigned makes the following:
FINDINGS OF FACT
1. Petitioner Bonnie Winn, R.N. (“Petitioner”) was a staff nurse at Union Correctional Center (UCC) from February 6, 2002, until her dismissal on February 10, 2004. Previously, she was a contract staff nurse at Rowan Correctional Center and UCC. Petition, Testimony of Petitioner, Testimony of Spencer Selle (Selle); Petitioner’s Exhibit L, Deposition of Bonnie Winn, R.N., pp. 10-13, 15.
2. Petitioner’s employment with the North Carolina Department of Correction (DOC) was terminated by the Dismissal Letter of February 10, 2004, effective that date, for 1) failure to report until December 19, 2003, an incident involving Inmate Miles, which occurred on December 17, 2003, which created the potential for danger and harm to staff and others, and which constituted Grossly Inefficient Job Performance, 2) Petitioner’s delaying and hindering an internal DOC investigation into Petitioner’s actions on or about January 6-8, 2004, by being dishonest and untruthful, and by providing false or purposely misleading information to the officials conducting the investigation, which constituted Unacceptable Personal Conduct, and 3) by making a personal phone call to the fiancee of Inmate Dexter Miles (Inmate Miles) on November 26, 2003, which was not within the scope of Petitioner’s duties and which was without authorization by Director of Prisons officials and strictly forbidden by DOC policy, which constituted undue familiarity with an inmate and was Unacceptable Personal Conduct. Respondent’s Exhibit 16.
FAILURE TO TIMELY REPORT AN INCIDENT WITH AN INMATE
3. It is DOC policy and important that staff report incidents and personal contact with inmates promptly and fully in order to prevent further questionable activity by the inmate, to facilitate the collection of evidence and to protect staff and the public from harm. Testimony of Nance; Respondent’s Exhibits Nos. 24, Page 9 of 20, and 26, Page no. 63, Bates Page No. 000442.
4. On December 17, at approximately 5:15 P.M., Inmate Miles entered the office of Petitioner and made improper sexual advances to and physical contact with the Petitioner. (Incident). The Incident was interrupted by Inmate Quinn. Testimony of Petitioner, Nance, Tarlton; Respondent’s Exhibit No. 8; Petitioner’s Exhibit L, Deposition of Bonnie Winn, R.N., pp. 54-63.
5. Petitioner contacted Tarlton on Friday morning, December 19, 2003, 41 hours after the Incident, but only to ask that Inmate Miles be removed from UCC and sent to another prison. When Tarlton told her she had to give a reason, Petitioner told Tarlton that Inmate Miles had come into her office as she was leaving for the day, asked for a kiss, and pushed her up against a file cabinet before he left. Nance was not aware of the Incident until after 1 P.M. that Friday. Testimony of Nance, Tarlton, and Petitioner; Respondent’s Exhibits Nos. 1, 8 and 16; Petitioner’s Exhibit L, Deposition of Bonnie Winn, R.N., p. 70.
6. Based on the information in Petitioner’s witness statement to Tarlton on Friday, December 19, 2003, Tarlton only charged Inmate Miles with “Assault on a Staff Member” and Inmate Miles was sent away on Friday, December 19, 2003, to segregation at Rowan Correctional Center. Testimony of Petitioner, Nance, Tarlton; Petitioner’s Exhibit L, Deposition of Bonnie Winn, R.N., pp. 67-68.
7. Petitioner testified before the DOC Employee Relations Committee on April 13, 2004, that Inmate Miles entered her office as she was about to leave for the day, asked for a kiss, pushed her up against a file cabinet, and against her protestations, placed his hands inside her clothing, pushed her onto a table, and fell with her to the floor and lay on top of her while putting his fingers inside of her. Petitioner had previously only told Nance and Tarlton the details recited in Finding of Fact No. 5, above. Testimony of Nance and Tarlton; Respondent’s Exhibit No. 1.
8. Since Petitioner had not reported the Incident by Thursday, December 18, 2003, Inmate Miles was allowed to leave UCC on work release to go to his regular job, creating the real potential that Inmate Miles would escape to avoid the consequences of his actions in the Incident, and cause danger to the staff of DOC and members of the general public, especially since Inmate Quinn had witnessed the latter stages of the Incident. Testimony of Nance; Respondent’s Exhibit 8, Investigation Report; Dismissal Letter, Respondent’s Exhibit 16.
9. No criminal charges have been filed by Petitioner against Inmate Miles relating to the Incident. Testimony of Nance and Petitioner.
PROVIDING FALSE AND PURPOSELY MISLEADING
INFORMATION IN AN INTERNAL INVESTIGATION
10. Tarlton was directed by Nance to launch an investigation of Inmate Miles with regard to the Incident and to conduct a routine internal investigation of the actions of Petitioner. On January 6, 2003, Petitioner signed an internal investigation form, which included the following statement:
... I am expected to cooperate with the officials conducting the investigation (or designees) and to provide them complete and accurate information at the initial interview and also during any subsequent interviews which may be necessary. I further understand that the Department of Correction’s Employee Disciplinary and Grievance Policy and Procedure provides that failure to cooperate with or hindering an internal investigation is personal misconduct for which I may receive any level of discipline, up to and including dismissal. ... I further understand that ...(c) The penalty for refusing to answer questions may be dismissal, and, (d) The penalty for providing false or purposely misleading information during an internal investigation may be dismissal.”
Testimony of Nance and Tarlton; Respondent’s Exhibit No. 5. [Emphasis Added.]
11. Petitioner was thus aware of the DOC policy and procedure about failing to cooperate with, or hindering or delaying, an investigation, as provided in Department of Correction, Personnel Manual, Section 6, Page 25, Bates page no. 000470, “Failure to Cooperate During or Hindering an Internal Investigation.” Respondent’s Exhibit No. 27.
12. Petitioner signed a statement on January 11, 2002, acknowledging that “...I have read and understand all of the Essential Job Functions ...” of the Staff Nurse position. Two of such essential functions are:
2. Comprehend and abide by policy, post orders, standard operating procedures, Emergency plans, memoranda, legal documents and other directives, both written and verbal, governing daily activities.
6. Complete comprehensive witness statements, activity logs, and other operational forms and reports.
Testimony of Nance; Respondent’s Exhibits Nos. 19 (Bates No. 000199) and 20 (Bates No. 000416).
13. During the investigation in January, 2004, Nance received a letter from Inmate Miles indicating that during the week after Inmate Miles’ cell phone had been confiscated, Petitioner had made a telephone call to Inmate Miles’ fiancee to tell her that Inmate Miles’ cell phone had been confiscated and to remove the block from her telephone, so Inmate Miles could call collect. Nance and Tarlton asked Petitioner about the telephone call. Petitioner denied to Nance that she had made such a call. Petitioner then told Nance she had Nextel as her carrier. Petitioner was asked by Nance to bring in Nextel cellular records for the relevant period to aid the internal investigation of this issue and was told by Nance how to obtain Nextel records from the Internet. Respondent’s Exhibits No. 8; Testimony of Nance and Tarlton.; Petitioner’s Exhibit L, Deposition of Bonnie Winn, R.N., pp. 85-88.
14. The next day, Petitioner instead brought cellular records from Concord Telephone Company, one of her cellular telephone providers, and gave them to Tarlton, not Nance. Tarlton did not find the number referred to by Inmate Miles in his letter and reported that to Nance on January 7, 2004. Respondent’s Exhibits No. 8; Testimony of Nance and Tarlton.
15. When Nance realized that the records presented to Tarlton were not from Nextel, he confronted Petitioner in Tarlton’s presence about the discrepancy. Petitioner told Nance that she had made a mistake, that she did not have Nextel as a cellular provider. Nance then showed Petitioner a note written by Petitioner on January 5, 2004, in which Petitioner had indicated that if Nance needed “...to contact me please call my cell phone @ 980-521-0973,” which Nance recognized as a Nextel exchange, since he was also a Nextel customer. Nance offered to bring in the State Bureau of Investigation or conduct a polygraph test to get the information and Petitioner responded by saying she was really sick on her stomach and needed to go home immediately. Testimony of Nance and Tarlton; Respondent’s Exhibits Nos. 3 and 8; Petitioner’s Exhibit L, Deposition of Bonnie Winn, R.N., p. 86.
16. Petitioner brought in the relevant cell phone records from her Nextel carrier on the next day, January 8, 2004. The records showed that on November 26, 2003, at 4:16 P.M., Petitioner made a cellular telephone call from her Nextel phone, number (980) 821-0973, to the fiancee of Inmate Miles in Lancaster, S.C. at (803) 287-3140. Petitioner subsequently admitted making this call in her deposition, supplemental witness statement and during the hearing of this case. In her deposition, Petitioner admitted to purposefully bringing in CTI telephone records to mislead the investigators. Testimony of Nance and Tarlton; Respondent’s Exhibit No. 7, and No. 5, Witness Statement of Petitioner, January 12, 2004; Judicial Admission of Petitioner; Petitioner’ s Exhibit L, Deposition of Bonnie Winn, pp. 87-91.
17. Vickie Bradley, a Program Assistant at UCC is authorized to make certain business-related calls to the families of inmates, such as notifying the family of a change in inmate release times. Bradley had previously been asked by Inmate Miles to make a telephone call to his fiancee to inform the fiancee that the inmate’s cell phone had been confiscated. Bradley declined to make such a call, since it was of a personal nature and the fiancee could have been easily notified by mail. Petitioner’s witness statement of January 12, 2004, states that Inmate Miles told her that Bradley “wouldn’t let him” make the call to Miles’ fiancee. This is further evidence that Petitioner knew that the call should not be made. Testimony of Vickie Bradley (Bradley); Respondent’s Exhibit No. 5, Petitioner’s Supplemental Witness Statement of January 12, 2004.
UNDUE FAMILIARITY WITH AN INMATE; IMPROPER PHONE CALL
18. The DOC policy has long prohibited unduly familiar contacts by staff with inmates, for at least 30 years, including UCC Superintendent Rocky Nance’s early days with DOC, when such activity was known as “personal dealings with inmates.” With the influx of female staff into male prisons, the issue has become even more of a concern with DOC. Testimony of Superintendent Rocky Nance (Nance) and Nursing Supervisor Spencer Selle (Selle).
19. Petitioner received training on Maintaining Professional Boundaries, which included material on avoiding undue familiarity with inmates under DOC policies, taught by Sergeant Dennis Boling for two hours on December 11, 2002. Those attending, including Petitioner, signed a class roster. Text, a video and transparencies were used to teach the course. Some of the Learner Objectives were 1) Identify and discuss the reasons why undue familiarity has become a concern in the correctional setting, 2) Identify and discuss employee characteristics that make staff vulnerable to inmate predators, and 3) Identify and discuss prevention strategies to assist staff in dealing with undue familiarity. Participants were warned that “America is struggling with ‘sex in the workplace,’ from the White House to the warehouse...,” and Director of Prisons Boyd Bennett was quoted as saying that in the DOC there were “402 investigations due to undue familiarity issues between staff and inmates” in just the period between` June 30, 1998, and July 1, 2001. It was stated to the class that
The North Carolina Department of Correction has a Zero Tolerance Policy. Staff will be fired for undue familiarity. There are various means employed by the Department during an investigation, not simply suspicion or witnesses. These other means include polygraphs (even though not admissible in court) and handwriting analysis.
Care givers, including nurses, chaplains and social workers, were noted as being vulnerable to undue familiarity. Prevention strategies were impressed upon the class, such as “No first name familiarity,” “Recognize ‘over friendly’ inmate behavior and question their motives,” “Never accept gifts, letters or phone calls...,” and “Don’t do any favors, like mailing cards, getting money, calling family, etc.” Class members did a Self Risk Assessment to determine the level of risk they were exposed to in their positions. Testimony of Sergeant Dennis Boling (Boling) and Nance; Respondent’s Exhibits 21 and 22.
20. In paragraph No. 5 of a one page “Employment Statements,” dated January 15, 2002, Petitioner signed and acknowledged receipt of a copy of the “NCDOC Personal Dealings with Offenders of the DOC Policy,” and further stated that it was her “... responsibility to read this policy and comply with the provisions of this policy, and if I have questions regarding this policy, I have a duty to ask questions of my supervisor for clarification.” Respondent’s Exhibit 18.
21. As provided in the NCDOC Personnel Manual, Section No. 8, pp. 60-63, “Personal Dealings with Offenders of the Department of Correction,” DOC employees shall not “... make gifts to or perform personal services for an offender, “ (Page 61) or “[k]nowlingly make or maintain contact with or in any way associate with a member of an offender’s family or close associate..., unless his/her assigned duties require such an association or unless he/she has been specifically authorized to do so by the Division Director or designee.” (Page 62) “Violations of this policy may result in disciplinary action up to and including dismissal.” (Page 63) Testimony of Nance, Respondent’s Exhibit 26, pages 60-63.