STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAYNE 01 OSP 0003

Jerrelle B Jones
Petitioner
vs.
Department of Health and Human Services
O'Berry Center
Respondent / )
))
)
)))) / DECISION

On May 25, 2001, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Goldsboro, NC.

APPEARANCES

For Petitioner: Jerrelle B. Jones, pro se

For Respondent: Thomas M. Woodward

Assistant Attorney General

Department of Justice

PO Box 629

Raleigh, NC 27602-0629

ISSUE

Did the Respondent have just cause to terminate Petitioner from employment?

FINDINGS OF FACT

Upon consideration of the pleadings and other documents filed herein, the testimony of witnesses at hearing, the evidence admitted at hearing, and the arguments of the parties, the undersigned does hereby make the following Findings of Fact:

1. The Petitioner was employed as a group home director in Cluster 1-3 at the O’Berry Center, a facility operated by the North Carolina Department of Health and Human Services for the care and treatment of individuals who are mentally retarded and/or developmentally disabled.

2. On May 3, 2000, Deborah Exum, Cluster 1 Administrator at the O’Berry Center and Petitioner’s immediate supervisor, met with the Petitioner to discuss problems with the Petitioner’s performance, including Petitioner’s failure to timely fill positions leading to excessive overtime and her failure to follow O’Berry Center Policy #94-5 (Employee Work Time and Leave). Ms. Exum spoke with the Petitioner concerning the need for the Petitioner to receive her (Ms. Exum’s) prior approval before scheduling flex time or compensatory time and directed the Petitioner to O’Berry Center Policy # 94-5 should she have any questions regarding how to properly handle such matters in the future.

3. By Memorandum dated May 18, 2000 and signed by Ms. Exum, Ms. Exum gave Petitioner a written warning regarding the job performance issues discussed at the May 3, 2000 meeting.

4. On May 15, 2000, the Petitioner held a meeting with her Cluster 1-3 staff to discuss administrative matters and client care issues. The meeting began at 2:30 p.m. and ended at approximately 4:45 p.m.

5. Staff members Beverly Decker, Jackie Bell, Nadine Billups, Tracy Dawson, Paula McCullough and Beverly Decker all attended the May 15, 2000 meeting. At that meeting, Petitioner told all staff to sign out at their regular sign out time rather than at 4:45 p.m., when the meeting actually ended. Petitioner also advised staff to sign an attendance record and that she would make the time up to them later. Each staff member was concerned that following the Petitioner’s directive would constitute a falsification of time records.

Staff members Beverly Decker, Jackie Bell, Tracy Dawson, Paula McCullough and Beverly Decker were all scheduled to leave work at 3:30 p.m. on May 15, 2000. Nadine Billups was off work that day and only came to work to attend the staff meeting. According to Paula McCullough, Petitioner told her some time later that she should correctly report all of her time, although Petitioner did not refer to the May 15th meeting when making this statement. Ms. McCullough did not believe that this statement was a retraction of the Petitioner’s May 15th directive. None of the other staff members recall the Petitioner ever retracting her May 15th directive.

6. Sometime in early June 2000, Ms. Exum learned that the Petitioner had allegedly instructed members of her staff to falsify time records for a May 15, 2000 staff meeting. On June 8, 2000, Ms. Exum advised Petitioner by letter that she would be placed on administrative leave with pay pending the outcome of an investigation into this matter.

7. As part of her investigation, Ms. Exum interviewed all the employees who attended the May 15 meeting, including the Petitioner. The Petitioner denied instructing the employees to sign out at their regular time rather than 4:45 p.m., and denied telling them that she would make the time up to them later. Petitioner confirmed her position regarding this matter in a written statement to Ms. Exum.

8. Ms. Exum opined that Petitioner’s account of the meeting was contrary to the statements she received from the other employees in attendance at the May 15, 2000 meeting.

9. A pre-dismissal conference was scheduled for June 15, 2000. This meeting was cancelled due to Petitioner being ill.

10. From June 8, 2000 to September 4, 2000, Petitioner was out of work on an approved medical leave of absence.

11. The pre-dismissal conference was rescheduled and held on September 11, 2000. Petitioner, Ms. Exum, Brenda Davis, the Residential Services Coordinator overseeing Cluster 1, and Dr. Frank Farrell, Assistant Director of the O’Berry Center attended this conference. According to both Ms. Exum and Dr. Ferrell, Petitioner stated at this meeting that she had not directed members of her staff to falsely record their time on May 15, and she did not tell them that she would make up the time to them.

12. Dr. Ferrell reviewed all witness statements prior to the pre-dismissal conference. The fact that Petitioner denied making such statements, given the weight of evidence to the contrary, was a factor in supporting the Petitioner’s dismissal. Dr. Ferrell believed that it is important to rely on the word of a group home director, especially given the vulnerability of the residents/patients at the O’Berry Center.

13. At the administrative hearing, the Petitioner admitted that she did instruct employees to record that they left work at 3:30 p.m. on May 15, 2000, but that she later retracted this statement.

14. By letter dated September 14, 2000, Respondent O’Berry Center informed Petitioner that she was dismissed from her position as group home director at the O’Berry Center for unacceptable personal conduct.

15. The Petitioner timely filed an internal grievance concerning her dismissal pursuant to DHHS Directive 33. The Petitioner’s grievance was denied at Step 2 and at Step 3. At both the Step 2 and Step 3 level, Petitioner denied that she instructed employees under her supervision to record they left work at their regular quitting times on May 15, 2000, and that she told them that she would make the time up to them later.

16. On January 2, 2001, the Petitioner filed a Petition for a contested case hearing with the Office of Administrative Hearings appealing the following: 1) discharge without just cause based on age, sex and race discrimination and/or retaliation for opposition to alleged discrimination; 2) failure to receive priority consideration; and 3) suspension without just cause.

17. On April 25, 2001, the Respondent filed a Motion to Dismiss the Petition alleging that the Petitioner failed to name the proper party, failed to properly serve the Petition and failed to properly plead and timely raise her discrimination, priority consideration and suspension claims. The Petitioner filed a response to this Motion. On May 2, 2001, the undersigned entered a Final Decision in Part dismissing the Petitioner’s discrimination, priority consideration and suspension claims, and allowing the Petitioner until noon on May 23, 2001 to name and serve the proper party. The Petitioner did properly name and serve the Respondent by May 23, 2001. As a result, the remaining issue for hearing was the question of whether the Respondent had just cause to dismiss the Petitioner.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction to hear this contested case matter.

2. The Petitioner was a career State employee at the time of her dismissal.

3. 25 NCAC 1J .0608(a) provides that employees may be dismissed for a current incident of unacceptable personal conduct, without any prior disciplinary action.

4. 25 NCAC 1J .0614(i) defines “unacceptable personal conduct” as:

(1) conduct for which no reasonable person should expect to receive a written warning; or

(2) job-related conduct which constitutes a violation of state or federal law; or

(3) conviction of a felony or an offense involving moral turpitude that is detrimental to or impacts the employee’s service to the State; or

(4) the willful violation of known or written work rules; or

(5) conduct unbecoming a state employee that is detrimental to state service; or

(6) the abuse of client(s), patient(s), student(s) or a person(s) over whom the employee has charge or to whom the employee has a responsibility or an animal owned by the State; or

(7) absence from work after all unauthorized leave credits and benefits have been exhausted; or

(8) falsification of a state application or in other employment documentation.

5. Pursuant to N.C. Gen. Stat. § 150B-35(d), the Respondent has the burden of proving that Petitioner was discharged for just cause.

6. The Respondent proved by a preponderance of the evidence that: (1) the Petitioner instructed her staff on May 15, 2000 to falsely record their time, (2) such action was a violation of the O’Berry Center’s Policy #94-5, (3) approximately two weeks prior to this incident, Ms. Exum counseled Petitioner about violations of O’Berry Policy #94-5 and directed Petitioner to review the policy should she have any questions, (4) the Petitioner knew or should have known that her actions were in violation of O’Berry Policy #94-5, and (5) Petitioner continued to deny the allegations during the investigation, the pre-dismissal conference, and Steps 2 and 3 of the internal grievance procedure, despite overwhelming evidence to the contrary.

7. Respondent met its burden of proof by showing that Petitioner’s conduct on May 15, 2000 constituted unacceptable personal conduct.

8. Respondent had just cause to dismiss Petitioner for unacceptable personal conduct.

DECISION

Based of the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Respondent’s decision to dismiss Petitioner from her employment be UPHELD.

ORDER AND NOTICE

The North Carolina State Personnel Commission will make the Final Decision in this matter. Pursuant to N.C. Gen. Stat. § 150B-36(b), that agency shall adopt each Finding of Fact contained in the Administrative Law Judge’s decision unless the Finding is clearly contrary to the preponderance of the admissible evidence. For each Finding of Fact not adopted by the agency, the agency shall set forth separately and in detail (1) the reasons for not adopting the Finding of Fact and (2) the evidence in the record relied upon by the agency in not adopting the Finding of Fact. For each new Finding of Fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the Finding of Fact.

Any new Finding of Fact made by the agency shall be supported by a preponderance of the admissible evidence in the record. Any Finding of Fact not specifically rejected shall be deemed accepted for purposed of judicial review of the Final Decision pursuant to Article 4 of N.C. Gen. Stat. § 150B.

The agency shall adopt the Administrative Law Judge’s decision unless the agency demonstrates that the Administrative Law Judge’s decision is clearly contrary to the preponderance of the admissible evidence in the official record. If the agency does not adopt the Administrative Law Judge’s decision as its Final Decision, the agency shall set forth its reasoning for the Final Decision in light of the Findings of Fact and Conclusion of Law in the Final Decision, including any exercise of discretion by the agency.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before that agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. Pursuant to N.C. Gen. Stat. 150B-36(b3), the agency shall serve a copy of its Final Decision on each party, and shall furnish a copy to each party’s attorney of record and to the Office of Administrative Hearings.

This the 26th day of June 2001.

______

Melissa Owens Lassiter

Administrative Law Judge