State of North Carolina s37

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF STANLY 09 OSP 5551

ANDRIA LAMBERT,

Petitioner,

NORTH CAROLINA DEPARTMENT

OF CORRECTION,

Respondent.

)

DECISION

This matter was heard before the Honorable Joe L. Webster, Administrative Law Judge, on March 3, 2010 and August 11, 2010 in Charlotte, North Carolina.

APPEARANCES

For Petitioner: Kirk J. Angel

The Angel Law Firm, PLLC

4351 Main Street, Suite 205

Harrisburg, NC 28075

For Respondent: Catherine M. (Katie) Kayser

Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh NC 27602

WITNESSES

The Respondent, North Carolina Department of Correction (hereinafter the “Respondent” or the “NCDOC”) presented testimony from the following ten (10) witnesses: the Petitioner, Andria A. Lambert (hereinafter the “Petitioner”); Gregory L. Alsobrooks; Cathlean Little, Karen Wilson; Samuel E. Lambert; Barbara Orr; Roselyn Powell; Hannah Rowland; Patricia Moore; and Janet Perry. The Petitioner, who testified at the hearing during the Respondent’s case, did not present any other witnesses.

PETITIONER’S EXHIBITS

The Petitioner offered the following four (4) exhibits, all of which were admitted into evidence: P. Ex. 1 (Written Performance Appraisals for Petitioner); P. Ex. 2 (Petitioner’s Request for Accommodation); P. Ex. 3 (Report from Respondent’s Employee Relations Committee); P. Ex. 4 (Recordings of April 2009 calls to the Petitioner from the Electronic House Arrest command center.

RESPONDENT’S EXHIBITS

The Respondent offered into evidence the following twenty-one (21) exhibits, all of which were admitted into evidence: R. Ex. 1 (Offender DCC Narratives Report-Gregory Alsobrooks); R. Ex. 2 (Notes from Interview with Gregory Alsobrooks); R. Ex. 4 (Andria Lambert Written Statement dated 4/16/09); R. Ex. 5 (Memorandum from Barbara Orr to Roselyn Powell dated 4/16/09); R. Ex. 6 (Andria Lambert Pre-Dismissal Conference Letter); R. Ex. 7 (Andria Lambert Pre-Disciplinary Conference Acknowledgment Form); R. E. 8 (Andria Lambert Written Statement dated 4/21/090; R. Ex. 9 (Recommendation to Dismiss Letter re. Andria Lambert); R. Ex. 10 (Memorandum from Barbara Orr to Roselyn Powell dated 4/22/090; R. Ex. 11 (Memorandum from Roselyn Powell to Tim Moose dated 4/24/090; R. Ex. 12 (Employment Dismissal Letter for Andria Lambert); R. Ex. 13 (Division of Community Corrections Policies & Procedures Manual, “Electronic House Arrest Program”); R. Ex. 14 (Department of Correction Personnel Manual – Appendix C, “Personal Conduct”); R. Ex. 15 (OSDT form – EHA training course 11/01/05); R. Ex. 16 (Copies of Slides: “Community Sanctions – Electronic House Arrest Monitoring System (941)”); R. Ex. 17 (Training History for Andria Lambert); R. Ex. 18 (Email Message from Cathlean Little to Barbara Orr dated 1/5/090; R. Ex. 19 (Note from Dr. Charles J. Niemeyer re. Andria Lambert dated 1/6/09); R. Ex. 20 (Event Report for Gregory Alsobrooks); R. Ex. 21 (A Thumb Drive Containing Digital copies of April 2009 telephone calls made from the Electronic House Arrest command center to Andria Lambert concerning Gregory Alsobrooks); and R. Ex. 22 (Electronic House Arrest Command Center Telephone Call Log for April 12, 2009).

ISSUE

1. Did the Respondent have just cause for terminating its employment of Petitioner for one or more acts of unacceptable personal conduct?

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 makes the following findings of fact. In making the findings of fact, the Undersigned 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 witness, any interest, 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. Wherefore, the undersigned makes the following Findings of Fact, Conclusions of Law and Decision, which is tendered to the State Personnel Commission for a final decision.

FINDINGS OF FACT

1. The Department of Correction’s Division of Probation and Parole is responsible for monitoring probationers placed on Electronic House Arrest (hereinafter “EHA”). (R. Ex. 13; Tr. pp. 155-157, pp. 190-193, pp. 259-274). A Probationer placed on EHA wears an ankle bracelet that is hooked into a electronic base station in his/her home which gives off an electronic signal that is monitored by a statewide center located in Raleigh, North Carolina. (R. Ex. 13; Tr. pp. 155-157, pp. 190-193, pp. 259-274).

2. When a device indicates a probationer has left his/her home, a member of the command center staff notifies local Division of Community Correction staff by telephone that they need to respond to the situation. (R. Ex. 13; Tr. pp. 155-157, pp. 190-193, pp. 259-274). Likewise, when a device for a probationer appears to be malfunctioning, and the problem cannot be corrected by the command center staff, the command local staff are contacted by telephone and must respond in-person to the situation. (R. Ex. 13; Tr. pp. 155-157, pp. 190-193, pp. 259-274). On such occasions, local staff are required to visit the probationer’s home to investigate what is causing the problem. (R. Ex. 13; Tr. pp. 155-157, pp. 190-193, pp. 259-274). Telephone calls made and received by the command center are recorded and preserved. (R. Ex. 21; Tr. pp. 294-302).

3. During regular work hours, a probationer’s regular probation/parole officer must respond to any EHA problem for that probationer reported by the command center. (R. Ex. 13; Tr. pp. 155-157, pp. 190-193, pp. 259-274). After regular work hours, the probation/parole officer serving on call duty that week is responsible for responding to any EHA problems in his/her work county. (R. Ex. 13; Tr. pp. 155-157, pp. 142-143, pp. 190-193, pp. 259-274).

4. Only those probationer/parole who are members of the Electronic House Arrest Response Team (hereinafter “EHART”) are allowed to perform on call work. (R. Ex. 13; Tr. pp. 155-157, pp. 190-193, pp. 259-274). As noted in the Division of Community Corrections Policy and Procedures Manual: “The Electronic House Arrest Response Team is organized for the purpose of responding to Electronic House Arrest and Electronic Monitoring violators after normal working hours on weekdays and on weekends, holidays and during emergency and/or life threatening situations. Response Team members generally rotate EHART duty for one week at a time, subject to the approval ... .” (R. Ex. 13).

5. Also, as noted in the Division of Community Corrections Policy and Procedures Manual, when a team member is on-call it is his/her “duty to respond to all Electronic House Arrest violations that occur between the hours of 5:00 p.m. and 7:00 a.m. on weekdays and 24-hours per day on weekends and holidays.” (R. Ex. 13).

6. EHART members undergo specialized training before being allowed to perform on call work. (R. Ex. 13; Tr. pp. 155-157, pp. 190-193, pp. 259-274). EHART members are paid extra for their on call work. (R. Ex. 13; Tr. pp. 155-157, pp. 190-193, pp. 259-274). The pay consists of $2.00 per hour for general on-call duty, with regular pay, including the possibility of overtime pay, for any actual responses by the member. (R. Ex. 13; Tr. pp. 155-157, pp. 190-193, pp. 259-274).

7. The Petitioner, a veteran probation/parole officer working in Stanly County, North Carolina, underwent EHART training in 2001, after which she became a member of the EHART team for Stanly County. (Tr. p. 193). The Petitioner continued as an EHART member until fall 2008 when she suffered a worker’s compensation injury and was out of work for several months. (Tr. pp. 136-141).

8. When the Petitioner returned to work, she requested that she be restored to on-call EHART duty. (Tr. pp. 136-141). She first asked her then immediate supervisor, Chief Probation/Parole Officer Cathlean Little, in December 2008 that she be returned to on-call EHART duty. (Tr. pp. 136-141). She again asked Chief Little on or about January 5, 2009 that she be returned to on-call EHART duty. (Tr. pp. 136-141). Chief Little, by email sent on January 5, 2009, alerted her immediate supervisor, Barbara Orr, Division of Community Corrections Judicial District Manager for District 20A (made up of Stanly, Richmond and Anson counties), that the Petitioner wished to return to EHART on-call duty. (R. Ex. 18; Tr. pp. 136-141). Judicial District Manager Orr, in response, informed Chief Little that before the Petitioner could be returned to on-call EHART duty, she would need to supply a note from her physician authorizing the move. (Tr. pp. 136-141, pp. 188-189). Chief Little relayed this information to the Petitioner. (Tr. pp. 136-141). The Petitioner on or about January 6, 2009 supplied Chief Little with a note from her treating physician, Dr. Charles J. Niemeyer, stating that while she remained under his care for her worker’s compensation injury she could return to work without any restrictions. (R. Ex. 19; Tr. pp. 136-141). The Petitioner was then returned to the EHART on-call rotation on January 26, 2009. (Tr. pp. 136-141, pp. 188-189).

9. At the time the Petitioner was returned at her request to on-call EHART duty in January 2009, her firearms certification as a sworn law enforcement officer had lapsed since she had not been able to attend scheduled firearms training in the year 2008 due to her worker’s compensation injury. (Tr. pp. 41-51). The Petitioner should not have been returned to EHART on-call duty because of her lapsed firearms certification. (Tr. pp. 41-51). However, Judicial District Manager Orr, Chief Little and Chief Probation/Parole Officer Karen Wilson, who became the Petitioner’s immediate supervisor in late January 2009, were not aware at the time of the Petitioner’s return to EHART on-call duty that the Petitioner’s firearms certification had lapsed. (Tr. pp. 141-142, p. 190). Judicial District Manager Orr, Chief Little nor Chief Wilson were aware of the lapse until after the Respondent began its internal investigation of the Petitioner on April 13, 2009. (Tr. pp. 141-142, p. 190).

10. For the week of April 7-13, 2009 (which included the Easter weekend), the Petitioner served on-call EHART duty. (R. Exs. 1, 4, 12; Tr. pp. 28-67).

11. On Friday April 10, 2009, at approximately 9:51 p.m., the EHA command center in Raleigh contacted the Petitioner by telephone about suspected equipment failure for probationer Gregory Alsobrooks, who was on EHA in Stanly County. (R. Ex. 21, P. Ex. 4; Tr. pp. 31-32). The Petitioner then went to Mr. Alsobrooks’ home, where she fixed the EHA equipment, which had lost power, by unplugging the EHA base station from its power outlet and then immediately plugging it back in. The Petitioner subsequently reported to the Raleigh command center by telephone, at approximately 11:22 p.m. on April 10, 2009, that she had fixed the EHA equipment for Mr. Alsobrooks. (R. Ex. 21, P. Ex. 4).

12. On Sunday April 12, 2009, at approximately 6:50 p.m., the command center again notified the Petitioner by telephone about a suspected equipment failure for Mr. Alsobrooks. The Petitioner did not respond to this call herself, but instead sent her husband, Samuel E. Lambert (hereinafter “Mr. Lambert”), to Mr. Alsobrooks’ home. (R. Exs. 5 and 21, P. Ex. 4; Tr. pp. 34-54, pp. 109-119, pp. 174-186). During Mr. Lambert’s visit, the power was restored to Mr. Alsobrooks’ EHA equipment by unplugging the base station from its power outlet and immediately plugging it back in. (R. Exs. 5 and 21, P. Ex. 4; Tr. pp. 34-54, pp. 109-119, pp. 174-186).

13. At the time he visited Mr. Alsobrooks’ home on April 12, 2009, Mr. Lambert was not a sworn law enforcement officer, was not an employee of the Respondent, and had never been an employee of the Respondent. . (R. Ex. 5; Tr. pp. 34-43, pp. 109-119).

14. Following her husband’s visit to Mr. Alsobrooks’ home, the Petitioner talked with command center operator Janet Perry at approximately 9:33 p.m. on April 12, 2010 about Mr. Alsobrooks’ EHA equipment failure. (R. Exs. 21, 22, P. Ex. 4; Tr. pp. 290-292, pp. 299-303). During this conversation, the Petitioner stated that she restored the power to Mr. Alsobrooks EHA equipment herself. (R. Exs. 21, 22, P. Ex. 4). Specifically, the Petitioner told Ms. Perry: “I unplugged it and plugged it back in like I did the other night and the green lights came back on. It’s working.” (R. Ex. 21, P. Ex. 4).

15. The Petitioner subsequently put together a typewritten report about the April 12, 2009 incident which was included in the probation records for Mr. Alsobrooks. (R. Ex. 1; Tr. pp. 33-43). In this report, the Petitioner indicated that she visited Mr. Alsobrooks’ home at approximately 9:20 p.m. on April 12, 2009. (R. Ex. 1; Tr. pp. 33-43). Specifically, the Petitioner noted: “Got called out again on this probationer. EHA Equipment again in power failure. Tried to call him, couldn’t reach him. At residence just unplugged box and plugged back in. Power restored. This might be a problem if this continues to happen. He has telephone service through cable service that is digital service, not the standard power service that we usually use for EHA.” (R. Ex. 1; Tr. pp. 33-43).

16. On April 13, 2009, Mr. Alsobrooks informed Probation/Parole Intensive Case Officer Michael Mixon that the Petitioner’s husband had visited his home on April 12, 2009 to fix his malfunctioning EHA equipment. (Tr. pp. 193-194). Officer Mixon reported this information to his chain of command and Roselyn Powell, then the Third Division Administrator for the Division of Community Corrections, ordered an internal investigation into the incident to determine if disciplinary action against the Petitioner was warranted. (R. Ex. 5; Tr. pp. 193-194, pp. 245-246).

17. The internal investigation was conducted by Judicial District Manager Orr and Chief Wilson and examined all of the Petitioner’s on-call work during the week of April 7-13, 2009. (R. Exs. 4, 5; Tr. pp. 194-210). The Petitioner, Mr. Alsobrooks and two other probationers were interviewed for the internal investigation. (R. Exs. 4, 5; Tr. pp. 194-210).