State of North Carolina s117

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF BURKE 08 OSP 2105

MICHAEL TODD DANIELS,

Petitioner,

N.C. DEPT. OF CORRECTION,

Respondent.

)

DECISION

This matter was heard before the Honorable Donald W. Overby, Administrative Law Judge, on January 8, 2009 at the Burke County Courthouse in Morganton, NC.

APPEARANCES

For Petitioner: Douglas L. Hall

Hall & Hall

305 East Green Street

Morganton, NC 28655

For Respondent: Catherine M. (Katie) Kayser

Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh, NC 27602-0629

WITNESSES

The Respondent, North Carolina Department of Correction (hereinafter “Respondent” or “NC DOC”) presented testimony from the following six witnesses: Johnny Mull, Correctional Sergeant at Lincoln Correctional Center (hereinafter “Lincoln CC”); Charles Thrift, Assistant Superintendent at Lincoln CC; Donald Caudle, Correctional Sergeant at Lincoln CC; Scott Carpenter, Program Supervisor at Lincoln CC; John Crow, Superintendent at Lincoln CC; Steve Bailey, NC DOC Western Region Director; and the Petitioner, Michael Todd Daniels (hereinafter “Petitioner”).

EXHIBITS

Respondent offered the following eighteen exhibits which were admitted into evidence:

R Ex. 1 (Petition for a Contested Case)

R Ex. 2 (Written warning dated 9-26-07)

R Ex. 3 (Internal investigation rights form dated 4-10-08)

R Ex. 5 (Internal investigation report dated 4-11-08)

R Ex. 6 (Petitioner’s one-page written statement dated 4-11-08)

R Ex. 7 (Petitioner’s two-page written statement dated 4-11-08)

R Ex. 8 (Sgt. Mull’s written statement)

R Ex. 9 (Sgt. Caudle’s written statement)

R Ex. 10 (Letter dated 4-14-08 re: Placement on Investigation)

R Ex. 11 (Memorandum dated 4-17-08 re: Internal Investigation)

R Ex. 12 (Letter dated 4-28-08 re: Pre-Disciplinary Conference)

R Ex. 13 (Pre-Disciplinary Conference Acknowledgment Form)

R Ex. 14 (Letter dated 4-29-08 re: Recommendation for Dismissal)

R Ex. 15 (Memorandum dated 5-1-08 re: Dismissal Recommendation)

R Ex. 16 (Letter dated 5-8-08 re: Dismissal)

R Ex. 17 (Letter dated 8-18-08 from Lola Denning)

R Ex. 18 (DOC Personnel Manual - Disciplinary Policy and Procedures)

R Ex. 19 (DOC/DOP Policy and Procedure Manual - Management of Security Posts)

Petitioner offered two exhibits which were admitted into evidence:

P Ex. 1 (Scott Carpenter’s written statement)

P Ex. 2 (Petitioner’s written statement dated 4-29-08)

ISSUES

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

2. Did Respondent have just cause to terminate its employment of Petitioner for one or more acts of grossly inefficient job performance?

Based upon the pleadings and other materials in the file, sworn testimony of the witnesses, exhibits presented at the hearing and other competent and admissible evidence, the undersigned makes the following:

FINDINGS OF FACT

1. NC DOC has a policy governing the personal conduct of its employees. The “personal conduct” policy is found in the NC DOC Personnel Manual as Appendix C to the Disciplinary Policy and Procedures. The policy states, “All employees of the Department of Correction shall maintain personal conduct of an acceptable standard as an employee and member of the community. Violations of this policy may result in disciplinary action including dismissal without prior warning.”

2. NC DOC also has a policy regarding “grossly inefficient job performance” that is found in Appendix B to the Disciplinary Policy and Procedures in its Personnel Manual. The policy states, “Grossly inefficient job performance refers to unsatisfactory job performance that occurs in instances in which the employee: fails to satisfactorily perform job requirements as specified in the relevant job description, work standard, or directed by the supervisor(s) or manager(s) of the work unit; and that failure results in (1) the creation of the potential for death or serious bodily injury to an employee(s) or to members of the public or to a person(s) over whom the employee has responsibility; or (2) the loss of or damage to state property or funds that result in a serious impact on the State and/or work unit.”

3. An employee of NC DOC is subject to disciplinary action, including dismissal, for unacceptable personal conduct or grossly inefficient job performance. Insubordination, defined as “Refusal to follow the orders of a superior or supervisor; or refusal to follow established policy or practice,” is listed in the NC DOC Personnel Manual as an example of unacceptable personal conduct. Leaving an assigned post without specific authorization from a properly empowered superior is listed as an example of grossly inefficient job performance. Additionally, the NC DOC-Division of Prisons Policy & Procedure Manual specifies in Chapter F, Section .1605(p) that, “A correctional officer shall not leave an assigned post until properly relieved.”

4. Petitioner was dismissed from his position as a Correctional Officer at Lincoln CC effective May 8, 2008 for unacceptable personal conduct and grossly inefficient job performance. He was employed by NC DOC for 223 months and spent the last 7 1/2 years at Lincoln CC.

5. The circumstances leading up to Petitioner’s dismissal were as follows. On April 8, 2008, Petitioner asked Sgt. Johnny Mull (hereinafter “Sgt. Mull”) if he could leave early. Sgt. Mull denied the request due to staffing needs. Sgt. Mull knew that Sgt. Jerald Chevalier (hereinafter “Sgt. Chevalier”) had already informed Petitioner he was to stay and work. Sgt. Chevalier had already allowed Petitioner’s “partner” to leave early although Sgt. Mull did not know that. Petitioner told Sgt. Mull he had made an appointment with his CPA and Sgt. Mull was costing him a hundred dollars by not letting him leave early. Sgt. Mull advised that he needed Petitioner to work the rest of the day to help with the transfer of new inmates. Petitioner replied angrily, “I hate working for you. I’ve always hated working for you and everybody else does, too.” Petitioner repeated his statement before leaving the room. At the hearing, Petitioner admitted his remarks to Sgt. Mull, a superior ranking officer, were disrespectful and unprofessional.

6. Sgt. Mull reported the incident to Assistant Superintendent Charles Thrift (hereinafter “Asst. Supt. Thrift”) and provided a written statement about what had happened. Superintendent John Crow (hereinafter “Supt. Crow”) advised Asst. Supt. Thrift to conduct an internal investigation.

7. Asst. Supt. Thrift interviewed Petitioner on April 10, 2008 in the course of his internal investigation. Sgt. Donald Caudle observed the interview as a witness.

8. Petitioner was uncooperative, argumentative, and disrespectful during the internal investigation. At the beginning of the interview, Asst. Supt. Thrift asked Petitioner to sign a NC DOC internal investigation rights form. The rights form is a cover sheet to the Employee/Witness Statement Form. It advises employees that they are expected to cooperate with the officials conducting the investigation, and the penalty for refusing to answer questions may be dismissal. Petitioner declared he wasn’t signing anything until told what he was being charged with.

9. Asst. Supt. Thrift advised Petitioner that he was not “charged” with anything and that he was gathering facts about the comments Petitioner made to Sgt. Mull. Petitioner replied that he was not signing anything until he talked to Steve Bailey, Western Region Director of NC DOC (hereinafter “Mr. Bailey”). Mr. Bailey is two steps above Supt. Crow in that he supervises Supt. Crow’s direct supervisor. Petitioner told Asst. Supt. Thrift he knew Mr. Bailey’s cell phone and where he lived, implying that he knew Mr. Bailey relatively well. Mr. Bailey testified this was not the case, as he did not know Petitioner outside of work.

10. Asst. Supt. Thrift asked Petitioner several times to sign the internal investigation rights form. Petitioner repeatedly refused. Consequently, Asst. Supt. Thrift informed Petitioner that his work schedule was being adjusted and he was to report back the next morning to see Supt. Crow. Petitioner retorted, “You can’t tell me what to do” and walked out of the office.

11. Asst. Supt. Thrift met Petitioner at the front gate of the facility to give him another chance. Asst. Supt. Thrift tried to reason with Petitioner, explaining that all he needed to do was sign the rights form, write a short statement, and they would be done. Petitioner demanded to know what he was being charged with. Again, Asst. Supt. Thrift stated Petitioner was not being charged with anything, he was simply gathering facts. Petitioner asked to read the statements that other employees had provided during the internal investigation. Although it was uncommon to do so, Asst. Supt. Thrift agreed to share the statements with Petitioner if he came back inside and signed the rights form.

12. Petitioner returned to Asst. Supt. Thrift’s office and signed the rights form. Asst. Supt. Thrift then began to read Petitioner the statements from other witnesses. Petitioner became visibly upset as Asst. Supt. Thrift read out loud. He repeatedly interrupted Asst. Supt. Thrift, saying that everyone was lying.

13. Asst. Supt. Thrift tried to ask Petitioner some questions after advising him what the other witnesses had said, but Petitioner would not give direct answers. Asst. Supt. Thrift had to repeat quite a few of his questions in an effort to get a straight answer from Petitioner. Sgt. Caudle also observed that Petitioner would go off on another subject each time he was asked a specific question.

14. After nearly an hour of attempting to question Petitioner without success, Asst. Supt. Thrift advised Petitioner to write a statement. Petitioner became increasingly upset and argumentative when Asst. Supt. Thrift tried to ask follow-up questions based on his written statement. Several times, Petitioner announced that he was done answering questions and Asst. Supt. Thrift could “do whatever he wanted.” Petitioner stood up, took a pen and started tapping the piece of paper that Asst. Supt. Thrift was holding. Asst. Supt. Thrift stated this was very disrespectful. Sgt. Caudle thought it was an aggressive move. Asst. Supt. Thrift told Petitioner to calm down and sit down. Asst. Supt Thrift remained calm, professional and in control throughout the entire time he was dealing with Petitioner.

15. Asst. Supt. Thrift excused himself to call Supt. Crow for guidance about how to proceed. Supt. Crow was out of the office on a scheduled vacation day. Asst. Supt. Thrift reported that Petitioner was uncooperative, agitated, and refusing to answer questions. Supt. Crow advised Asst. Supt. Thrift to try to calm Petitioner down by telling him that Supt. Crow would be back at work the next day and they could talk more then. Asst. Supt. Thrift and Supt. Crow discussed whether Petitioner was so agitated that he could not hold a post. Asst. Supt. Thrift thought Petitioner was upset but still capable of holding a post. Supt. Crow decided that Petitioner should finish out the day. Asst. Supt. Thrift recommended sending Petitioner to the post at E&F Dorm. Supt. Crow agreed. E&F Dorm is a housing unit for the inmate population at Lincoln CC.

16. Asst. Supt. Thrift called Program Supervisor Scott Carpenter (hereinafter “Mr. Carpenter”) into his office as an additional witness, per instructions from Supt. Crow. Asst. Supt. Thrift then informed Petitioner that since he was refusing to answer any more questions, he needed to go to E&F Dorm and finish out his shift. As second in command at Lincoln CC, Asst. Supt. Thrift was in charge of the prison facility during Supt. Crow’s absence and had the authority to make post assignments.

17. Petitioner and Sgt. Caudle walked to E&F Dorm after leaving Asst. Supt. Thrift’s office. However, Petitioner did not assume the post as directed. Instead, he got his lunch box from the break room lockers, walked out the front gate of the facility, and drove off in his vehicle. Petitioner did not have permission from a supervisor to leave the post to which he was assigned at E&F Dorm or to leave Lincoln CC before the end of his shift on April 10, 2008.

18. At the hearing on this contested case, Mr. Carpenter was questioned extensively on cross-examination about whether Asst. Supt. Thrift had assigned Petitioner to E&F Dorm, or rather told Petitioner he could go back on the yard to get his lunch box. Mr. Carpenter understood that Asst. Supt. Thrift ordered Petitioner to the E&F Dormitory, and that was his post, although specific language of “ordering” the Petitioner was not used. Mr. Carpenter also said he understood the phrase “go back on the yard” meant “you can finish your day here.”

19. Mr. Carpenter further explained at Lincoln CC, “[O]ur normal conversations in telling someone what their post is - we never follow it up with, “This is a direct order” or “I’m telling you this is where you’re going.” A lot of times we say something that’s similar to, “You can go to E&F” or “You can go to Tower 1” or “You can be on the yard.”” Mr. Carpenter stated that based on Petitioner’s eighteen years of experience as a correctional officer, he doesn’t see how Petitioner would not have understood he was supposed to go to E&F Dorm and stay there until relieved.

20. Petitioner acknowledges that he was ordered to post at E&F dorm and that he understood that he was to finish the day at work. Petitioner testified he did not comply with the post order because he felt like Asst. Supt. Thrift was trying to keep him from going to talk to Mr. Bailey. Petitioner then claimed he had gotten confused because Asst. Supt. Thrift told him to go home and also told him to go to E&F Dorm. The Court questioned how Petitioner could have been confused when the two orders were separated by at least an hour. The Court asked Petitioner why he thought he could leave, when the second in command at the prison told him that the Superintendent said he was to go to E&F Dorm and work. Petitioner responded, “I don’t know, Your Honor. I don’t have no answer for it, Your Honor.”

21. After leaving Lincoln CC, Petitioner drove to the NC DOC Western Region Office and asked to meet with Mr. Bailey. Petitioner was upset and claimed he was not being treated fairly by Sgt. Mull and Asst. Supt. Thrift. Mr. Bailey observed that Petitioner was still in uniform, so he asked Petitioner if he had been given permission to leave the facility to come speak with him. Petitioner implied that he did. Mr. Bailey testified he did not recall Petitioner mentioning that Asst. Supt. Thrift told him to finish up the day at E&F Dorm.