STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 10 OSP 4281

) Charles Trice ) Petitioner, ) ) v. ) DECISION ) North Carolina Department of Correction ) Respondent. )

This matter was heard before the Honorable J. Randall May, Administrative Law Judge, on January 18, 2011 at the Ashe County Courthouse in Jefferson, North Carolina.

APPEARANCES

For Petitioner: Charles E. Monteith, Jr. Monteith & Rice PLLC 422 St. Mary’s Street, Suite 6 Raleigh, NC 27605

For Respondent: Thomas H. Moore Assistant Attorney General N.C. Department of Justice 1505 Mail Service Center Raleigh NC 27699-1505

WITNESSES

The Petitioner, Charles Trice (hereinafter the “Petitioner”), testified on his on behalf, and presented testimony from the following five (5) witnesses:

1. Randall Patterson, a former correctional officer at Avery-Mitchell 2. David Phillips, a former correctional sergeant at Avery-Mitchell 3. Joe Brown, a former captain at Avery-Mitchell 4. Robert Guy, an employee of Mountain View Correctional Institution 5. Adrian Crowe, a correctional sergeant at Avery-Mitchell. 2

The Respondent, North Carolina Department of Correction (hereinafter the “Respondent” or the “NCDOC”), presented testimony from the following ten (10) witnesses:

1. Petitioner, Charles Trice (hereinafter the “Petitioner”) 2. Nathaniel Tate, a correctional lieutenant at Avery-Mitchell Correctional Institution (hereinafter “Avery-Mitchell”) 3. James Vic Gardner, a correctional officer at Avery-Mitchell 4. Michael Holloway, a correctional officer at Avery-Mitchell 5. Ernest King, a correctional officer at Avery-Mitchell 6. James Cable, a correctional officer at Avery-Mitchell 7. Mark Fisher, a correctional sergeant at Avery-Mitchell 8. Cindy Bates, a unit manager at Avery-Mitchell 9. Jeffrey Daniels, a correctional captain at Avery-Mitchell and formerly a correctional lieutenant at Avery-Mitchell 10. Robert Cooper, the correctional administrator at Avery-Mitchell.

EXHIBITS

The Petitioner offered the following fourteen (14) exhibits, all of which were admitted into evidence:

1. P. Ex. 1 (Petitioner’s annual performance appraisal for the period from April 1, 2009 through March 31, 2010) 2. P. Ex. 2 (Petitioner’s annual performance appraisal for the period from April 1, 2008 through March 31, 2009) 3. P. Ex. 3 (Petitioner’s annual performance appraisal for the period from April 1, 2007 through March 31, 2008) 4. P. Ex. 4 (Petitioner’s annual performance appraisal for the period from April 1, 2006 through March 31, 2007) 5. P. Ex. 5 (Petitioner’s annual performance appraisal for the period from April 1, 2005 through March 31, 2006) 6. P. Ex. 6 (Petitioner’s annual performance appraisal for the period from April 1, 2004 through March 31, 2005) 7. P. Ex. 7 (Petitioner’s annual performance appraisal for the period from April 1, 2003 through March 31, 2004) 8. P. Ex. 8 (Petitioner’s annual performance appraisal for the period from April 1, 2002 through March 31, 2003) 9. P. Ex. 9 (written warning issued to Avery-Mitchell Correctional Officer James Cable) 10. P. Ex. 10 (December 10, 2008 post order for Avery-Mitchell) 11. P. Ex. 11 (July 22, 2009 post order regarding unit officer/unit control) 12. P. Ex. 12 (July 23, 2009 post order for Avery-Mitchell) 13. P. Ex. 14 (July 15, 2009) 14. P. Ex. 15 (written statement from inmate Jeffrey Smith) 15. P. Ex. 16 (post entry log) The Respondent offered into evidence the following twenty-three (23) exhibits, all of 3 which were admitted into evidence:

1. R. Ex 1 (dismissal letter to Petitioner) 2. R. Ex. 2 (notice of pre-disciplinary conference for Petitioner) 3. R. Ex. 3 (pre-disciplinary conference acknowledgment form executed by Petitioner) 4. R. Ex. 4 (Respondent’s recommendation to dismiss Petitioner from employment) 5. R. Ex. 5 (Robert Cooper’s recommendation to Steve Bailey that Respondent end its employment of Petitioner) 6. R. Ex. 8 (Avery-Mitchell Assistant Superintendent Lawrence Willis’s report to Robert Cooper regarding internal investigation of Petitioner) 7. R. Ex. 9 (then Avery-Mitchell Lieutenant Jeffrey Daniels report regarding internal investigation of Petitioner) 8. R. Ex. 10 (letter from Petitioner to Steve Bailey) 9. R. Ex. 11 (Petitioner’s December 23, 2009 written statement for internal investigation) 10. R. Ex. 12 (Avery-Mitchell Sergeant Mark Fisher’s December 23, 2009 written statement for internal investigation) 11. R. Ex. 13 (Avery-Mitchell Sergeant Mark Fisher’s February 8, 2010 written statement addendum) 12. R. Ex. 14 (Avery-Mitchell Correctional Officer Ernest King’s January 4, 2010 written statement for internal investigation) 13. R. Ex. 15 (Avery-Mitchell Correctional Officer James Cable’s December 23, 2009 written statement for internal investigation) 14. R. Ex. 16 (Avery-Mitchell Correctional Officer James Cable’s January 7, 2009 written statement for internal investigation) 15. R. Ex. 17 (Avery-Mitchell Correctional Officer James Cable’s written statement addendum 16. R. Ex. 18 (Avery-Mitchell Correctional Officer Vic Gardner’s December 23, 2009 written statement for internal investigation) 17. R. Ex. 21 (Avery-Mitchell Correctional Officer Randall Patterson’s December 23, 2009 written statement for internal investigation) 18. R. Ex. 23 (Avery-Mitchell Unit Manager Cindy Bates’ December 23, 2009 written statement for internal investigation) 19. R. Ex. 24 (Avery-Mitchell Correctional Officer Michael Holloway’s January 4, 2010 written statement for internal investigation) 20. R. Ex. 25 (Avery-Mitchell Correctional Officer Michael Holloway’s February 8, 2010 written statement addendum) 21. R. Ex. 26 (Avery-Mitchell Correctional Lieutenant Nathaniel Tate’s December 29, 2009 written statement for the internal investigation) 22. R. Ex. 27 (August 11, 2009 written warning issued to Petitioner by Respondent) 23. R. Ex. 29 (Respondent’s personnel policy defining grossly inefficient job performance)

ISSUE 4

1. Did the Respondent have just cause for terminating its employment of Petitioner for one or more acts of grossly inefficient job performance?

The Findings of Fact are made after careful consideration of the sworn testimony, whether visual and/or audio, of the witnesses presented at the hearing, and the entire record in this proceeding. In making the findings of fact, the undersigned has weighed all the evidence, or the lack thereof, 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 interests, 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. From the sworn testimony and the admitted evidence, or the lack thereof, the undersigned makes the following:

FINDINGS OF FACT

1. The Respondent has in place various policies requiring correctional officers to remain on post unless authorized to leave by a supervisor. (Tr. pp. 168-188). The Respondent also has in place various policies requiring correctional officers to be alert while on duty. (Tr. pp. 168-188).

2. The Petitioner was hired during the year 2000 as a correctional officer at Avery- Mitchell, a prison facility in Spruce Pine, North Carolina operated by the Respondent. (Tr. p. 10, pp.197-200). Avery-Mitchell is a medium-custody prison facility, housing approximately 856 inmates and with a staff of approximately 328 employees. (Tr. p. 10, pp. 197-200). After two years of employment, the Petitioner achieved “career state employee” status as defined by N.C. GEN. STAT. § 126-1.1 (2009).

3. On August 11, 2009, the Respondent issued the Petitioner a written warning for unacceptable personal conduct in a May 26, 2009 incident where the Petitioner, while working in a control booth in the Avery unit at Avery-Mitchell during the 6 a.m. to 6 p.m. day shift, became involved in a verbal dispute with an inmate, left the control room, and used pepper spray twice on the inmate after he refused to submit to the Petitioner’s commands. (R. Ex. 27; Tr. pp. 35-38, 168-169). The warning, issued by Avery-Mitchell Administrator Robert Cooper, noted that the Petitioner’s actions in the incident placed the inmate and himself, as well as other staff and inmates, in potential danger. (R. Ex. 27; Tr. pp. 35-38, 168-169).

4. Following the issuance of the written warning, the Petitioner was reassigned to work the 6 p.m. to 6 a.m. night shift at Avery-Mitchell. (Tr. pp. 11-38). He was assigned to work the Yancey unit at Avery Mitchell on this shift under the supervision of Correctional Sergeant Mark Fisher. (Tr. pp. 94-95, 123-125). Normally, eight officers and Sergeant Fisher worked the 6 p.m to 6 a.m. shift in the Yancey unit. (Tr. pp. 11-20). On times that Sergeant was off, Correctional Officer James Cable served as one of the acting sergeants on this shift in the Yancey unit. (Tr. pp. 94-95, 123-125). 5. In addition to working as a correctional officer at Avery-Mitchell, the Petitioner maintained a Christmas tree farm near his home. (Tr. pp. 14-16). The Petitioner sold trees from 5 his farm wholesale during the Christmas season each year. (Tr. pp. 14-16). He also sold trees from his farm at a Christmas tree lot in the Tampa, Florida area. (Tr. pp. 14-16).

6. In November 2009, the Petitioner asked to be on vacation leave from Avery- Mitchell from November 25, 2009 through December 16, 2009 in order to work with his Christmas tree business. (Tr. pp. 214-215). Due to staffing shortages on the overnight shift, not all of the Petitioner’s leave was approved and he was required to work at Avery-Mitchell on Monday November 29, 2009 after being off for several days on approved leave. (Tr. pp. 214- 215).

7. On the weekend before Monday November 29, 2009, the Petitioner drove back to his western North Carolina home from the Tampa, Florida area. (Tr. pp. 15-16).

8. On November 29, 2009, Sergeant Fisher was not at work and Officer Cable served as the acting sergeant for the 6 p.m. to 6 a.m. shift assigned to the Yancey unit. (Tr. pp. 94-95). The Petitioner reported to work on November 29, 2009. (Tr. pp. 11-40, 94-95). Sometime early in the shift, the Petitioner engaged in a conversation with Officer Cable, during which, among other things, he stated he was upset about having to be at work that day since he had expected to be on leave to work his Christmas tree farm business. (Tr. pp. 94-97).

9. From 6 p.m. until approximately midnight, the Petitioner worked various posts in the Yancey unit, ending with a stint in the control from approximately 10 p.m. to approximately midnight. (Tr. pp. 11-40, 51-62, 75-82, 89-92, 94-110). Correctional Officer Michael Holloway saw the Petitioner enter the Yancey unit multi-purpose room around 11:45 p.m. immediately following the Petitioner’s assigned shift in the control room. (R. Ex. 25; Tr. pp. 75-82). After this point, the Petitioner was not seen by any other staff assigned to the Yancey unit for a considerable period of time. (R. Exs. 15, 16, 17, 18, 19, 24, 25; Tr. pp. 11-40, 51-62, 75-82, 89- 92, 94-110).

10. At approximately 3:45 a.m. on November 30, 2009, Officer Cable went to the Yancey unit multi-purpose room, unlocked the door, went inside, and turned the lights on. Once he entered, he saw the Petitioner sitting down with his eyes squinted. (R. Exs. 15, 16, 17; Tr. pp. 94-110). The Petitioner said, “Hello Mr. Cable”. (R. Exs. 15, 16, 17; Tr. pp 94-110). The Petitioner then left the multi-purpose room and returned to work the control booth again. (R. Exs. 15, 16, 17; Tr. pp. 94-110).

11. The next workday, the November 30-December 1, 2009 work-date, the Petitioner did not report to work at Avery-Mitchell, although he was scheduled to do so. (Tr. p. 215).

12. Prior to the November 29-30, 2009 work-date, the Petitioner had left his assigned post on several other occasions in November 2009 to either rest in the Yancey unit multi-purpose room or break room without permission. (R. Exs. 9, 15, 16, 17, 18, 19, 24, 25; Tr. pp. 11-40, 51- 62, 75-82, 89-92, 94-110). His behavior, particularly on the November 29-30, 2009 work-date, upset several of his co-workers, who decided to complain to Sergeant Fisher when he returned to work from his hunting vacation. (R. Exs. 9, 12, 13, 15, 16, 17, 18, 19, 23, 24, 25; Tr. pp. 11-40, 51-62, 75-82, 89-92, 94-110). 6

13. After Sergeant Fisher returned to work on December 4, 2009, Correctional Officers Cable, Holloway, Vic Gardner, and Randall Patterson informed him in separate conversations on separate dates that the Petitioner had left his assigned post to go sleep in the Yancey unit multi-purpose room on the November 29-30, 2009 work-date. (R. Exs. 12, 13; Tr. pp. 51-62, 75-82, 123-130). Sergeant Fisher reported these allegations to Cindy Bates, the unit manager for the Yancey unit, sometime after December 9, 2009. (R. Exs. 12, 13, 23; Tr. pp. 123- 130, 139-142).

14. On December 15, 2009, Correctional Officer Gardner contacted Ms. Bates by telephone and reported to her that the Petitioner had abandoned his post early on November 30, 2009 to go sleep in the Yancey unit multi-purpose room for several hours. (R. Ex. 23; Tr. pp.51- 62, 139-142). Ms. Bates subsequently reported allegations made by Officer Gardner and Sergeant Fisher to Avery-Mitchell Assistant Superintendent Lawrence Willis, who authorized an investigation to determine the truth of these allegations, and whether the Respondent should take disciplinary action against the Petitioner. (R. Exs. 8, 9, 23; Tr. pp. 51-62, 139-142). Captain Jeffrey Daniels, then a special affairs lieutenant at Avery-Mitchell, was assigned to conduct the investigation. (R. Exs. 8, 9; Tr. pp. 153-158). Captain Daniels began conducting interviews for the investigation on December 23, 2009. For this investigation, Captain Daniels interviewed and obtained written statements from the Petitioner, Correctional Officers Cable, Gardner, Michael Holloway, Randall Patterson, Jeffrey Hoyle, Ernest King, as well as Unit Manager Bates, Correctional Lieutenant Nathaniel Tate, and Sergeant Fisher. (R. Exs. 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 23, 24, 25, 26; Tr. pp.16-31, 51-62, 75-82, 89-92, 94-110, 123-130, 153-158, 28-230).

15. Captain Daniels first interviewed the Petitioner for the internal investigation on December 23, 2009, with Lieutenant Tate present for this interview. (R. Exs. 8, 9, 26; Tr. pp. 40- 51, pp. 153-158). During the interview, the Petitioner said he could not recall the date of the incident, but did remember being discovered in the Yancey unit multi-purpose room by Officer Cable on one recent work-date. (R. Exs. 8, 9, 26; Tr. pp. 40-51, 153-158). When asked by Captain Daniels if he had been asleep in the multi-purpose room before being discovered there by Office Cable, the Petitioner said he was not asleep, but merely resting his eyes due to a migraine headache. (R. Exs. 8, 9, 26; Tr. pp. 40-51, 153-158). When asked by Captain Daniels if he had permission to be in the multi-purpose room from either Acting Sergeant Cable or the officer in charge of Avery-Mitchell during his shift, the Petitioner responded no. (R. Exs. 8, 9, 26; Tr. pp. 40-51, 153-158). When asked by Captain Daniels if he cut off the lights when he entered the multi-purpose room, the Petitioner responded that he did not think he did–that he remembered the lights being off when he entered. (R. Exs. 8, 9, 26; Tr. pp. 40-51, 153-158). When asked by Captain Daniels if he closed the multi-purpose room door after he entered, the Petitioner stated that he did not–that he remembered an inmate on hallway cleaning duty closing the door. (R. Exs. 8, 9, 26; Tr. pp. 40-51, 153-158). When asked by Captain Daniels how long he was in the multi-purpose room before being found there by Officer Cable, the Petitioner stated that he was there about 15 to 20 minutes. (R. Exs. 8, 9, 26; Tr. pp. 40-51, 153-158).

16. Immediately following the interview, Captain Daniels requested that the Petitioner provide a written statement for the internal investigation and the Petitioner did so. The 7

Petitioner’s written statement contradicted his statements during the interview on one important point: whether he had permission to rest in the multi-purpose room. (R. Exs. 8, 9, 11, 26; Tr. pp. 24-26, 40-51, 153-158). The Petitioner wrote in this statement, “I do not remember the day but one night I had a terrible headache. I’m not sure but I think I told C/O Cable that my head was busting and that I was going to go sit in the multipurpose room and see if I could get my head to quit hurting. To the best of my knowledge, the lights were off when I went in. I did not shut the door. I think that I/M [inmate] Jeffrey Smith shut the door because he was buffing the hall. At no point on that day or any other was I asleep. ... I might have been ... there 15 to 20 minutes I [am] not sure.” (R. Ex. 11).

17. Office Cable, in his December 23, 2009 interview and written statement for the internal investigation conducted by Captain Daniels, reported that he did not give the Petitioner permission to leave his assigned post and go rest in the Yancey unit multi-purpose room, or anywhere else, on the November 29-30, 2009 work-date. (R. Exs. 8, 9, 15, 16, 17; Tr. Pp. 94- 110). Officer Cable said he discovered the Petitioner in the multi-purpose room between 3:45 and 3:50 a.m. on November 30, 2009 after going to the room with Correctional Officer Randall Patterson so Officer Patterson could fill his water bottle. (R. Exs. 8, 9, 15, 16, 17; Tr. pp. 94- 110). Officer Cable said that he unlocked the door, entered the room and found the lights off inside. He said he turned the lights on and saw the Petitioner sitting down with his eyes squinted. (R. Exs. 8, 9, 15, 16 and 17; Tr. pp. 94-110). At this point, Officer Cable said, the Petitioner said, “Hello Mr. Cable, Hello Mr. Patterson”. (R. Exs. 8, 9, 15, 16, 17; Tr. pp. 94-110). Officer Cable said the Petitioner explained that he was in the multi-purpose room because of a headache and that he had turned the lights off “to try to ease it up some”. (R. Exs. 8, 9, 15, 16, 17; Tr. pp. 94- 110).

18. Officer Patterson, in his December 23, 2009 interview and written statement for the internal investigation conducted by Captain Daniels, denied that he was with Officer Cable when the Petitioner was discovered in the Yancey unit multi-purpose room on the November 29- 30, 2009 work-date. (R. Exs. 8, 9; Tr. pp. 218-230). Shortly after being interviewed for the internal investigation, Officer Patterson voluntarily resigned from his correctional officer position with the Respondent. (R. Exs. 8, 9; Tr. pp. 218-230).

19. Because the statements from Officers Cable and Patterson conflicted, Captain Daniels re-interviewed Officer Cable. (R. Exs. 8, 9, 15, 16; Tr. pp. 94-110, 153-158). During this second interview on January 7, 2010, Officer Cable reiterated what his statement that Officer Patterson was with him when he found the Petitioner in the multi-purpose room. (R. Exs. 8, 9, 6; Tr. pp. 94-110). Officer Cable also noted in this interview that he had told Officer Patterson he was being interviewed again and that Officer Patterson replied by stating, “I’m not helping them hang Trice [the Petitioner] out to dry”. (R. Ex. 16; Tr. pp. 94-110).

20. Officer Gardner, in his interview and written statement for the internal investigation conducted by Captain Daniels, reported that the Petitioner was frequently off his post and “nowhere to be found” on those days when Sergeant Fisher was not at work. (R. Exs. 8, 9, 18, 19; Tr. pp. 51-62). Officer Gardner stated that on the November 29-30, 2009, the Petitioner “basically slept all night except when it was his two hours in control [the control 8 room],” adding that this was the Petitioner’s “normal mode if Sergeant Fisher is not here...” (R. Ex. 18; Tr. pp. 51-62).

21. Officer Gardner, in a subsequent interview and written statement for the internal investigation, corroborated Officer Cable’s version of events. (R. Exs. 8, 9, 19; Tr. pp. 51-62). He stated that he saw Officers Cable and Patterson go to the Yancey unit multi-purpose room “[s]omewhere between 12:00 a.m. and 3:00 a.m. on 11-30-09” so that Officer Cable could unlock the door for Officer Patterson to go inside and refill his water bottle. (R. Ex. 19; Tr. pp. 51-62).

22. Officer Holloway, in his interview and written statement for the internal investigation conducted by Captain Daniels, also reported that the Petitioner frequently abandoned his post on workdays when Sergeant Fisher was absent. (R. Exs. 8, 9, 24, 25; Tr. pp. 75-82). Officer Holloway noted that when the Petitioner began working the night shift “he was as good an officer to work with as you could ask for” and “[t]hat all changed in November” 2009.” (R. Ex. 24; Tr. pp. 75-82).

23. Officer Hoyle, in his interview and written statement for the internal investigation conducted by Captain Daniels, stated that the Petitioner was not on his post for the full 12 hours of the November 29-30, 2009 work-date. (R. Exs. 8, 9; Tr. pp. 153-158). He also said that he had never seen the Petitioner asleep while at work. (R. Exs. 8, 9; Tr. pp. 153-158).

24. Officer King, in his interview and written statement for the internal investigation conducted by Captain Daniels, reported that he noticed no problems with the Petitioner on the November 29-30, 2009 work-date or any other work-date. (R. Ex. 8, 9, 14; Tr. pp. 89-92).

25. At the conclusion of the internal investigation, Captain Daniels compiled a written report that outlined the information he received from the various witnesses and concluded that the Petitioner did leave his post without permission on the November 29-30, 2009 work-date. (R. Ex. 9; Tr. pp. 153-158). Captain Daniels noted in this report, dated January 20, 2010, that: “Based upon the investigation it is apparent that Officer Trice [the Petitioner] did leave his post and go to either the break room or multi-purpose room on several occasions. By turning the lights out, it is reasonable to assume that he did this for the purpose of sleeping. Regardless of whether Officer Trice [the Petitioner] actually went to sleep, he was certainly not on his assigned post and not in a position to assist staff or supervise inmates. Officer Trice [the Petitioner] received no permission nor did he seek permission to leave his assigned post.” (R. Ex. 9).

26. Captain Daniels’ report was addressed to Mr. Willis, the Avery-Mitchell Assistant Superintendent for Custody and Operations. (R. Ex. 9; Tr. pp. 153-158). Mr. Willis reviewed the report and decided that disciplinary action against the Respondent appeared appropriate. (R. Ex. 8). Mr. Willis on January 22, 2010 forwarded a report to Avery-Mitchell Administrator Robert Cooper noting that the Petitioner “admitted that he was in the multi-purpose room, away from his assigned post .... [and] did not not request permission to be relieved from [his] post as required in the Avery-Mitchell Post Orders” and that, as such, the Petitioner had admitted to willful violations of known and written work rules. (R. Ex. 9; Tr. pp. 168-188). 9

27. Mr. Cooper, after reviewing the reports from Mr. Willis and Captain Daniels and the witness statements obtained by Captain Daniels, recommended to his chain of command that the Respondent take disciplinary action against the Petitioner. (Tr. pp. 168-188). Mr. Cooper subsequently received approval to proceed with disciplinary action. (Tr. pp. 28-30, 168-188).

28. On February 16, 2010, the Petitioner received a written notice of a scheduled February 18, 2010 pre-disciplinary conference with Mr. Cooper. (R. Ex. 2; Tr. pp. 28-30). This written notice stated that Mr. Cooper intended to recommend that the Respondent terminate its employment of the Petitioner for grossly inefficient job performance. (R. Ex. 2; Tr. pp. 28-30).

29. The pre-disciplinary conference occurred as scheduled on February 18, 2010 at Mr. Cooper’s office, with both Mr. Cooper and the Petitioner in attendance. (R. Exs. 3, 4; Tr. pp. 28-30, 168-188.). At the conference, Mr. Cooper presented the Petitioner with a copy of his written recommendation that the Respondent terminate the Petitioner’s employment for grossly inefficient job performance. (R. Exs. 3, 4; Tr. pp. 28-30, 168-188). At the conference, the Petitioner stated emphatically that he now remembered that he had permission from Officer Cable, the Acting Sergeant, to go to the Yancey unit multi-purpose room and rest on the November 29-30, 2009 work-date, a claim that contradicted his December 23, 2009 interview and written statement for the internal investigation. (R. Exs. 1 and 5; pp. 168-188). Asked by Mr. Cooper how long he remained in the multi-purpose room, the Petitioner stated, “I don’t know.” (R. Exs. 1, 5; Tr. pp. 168-188).

30. Following the conference, management with the Respondent approved Mr. Cooper’s recommendation that the Respondent end its employment of the Petitioner. (R. Ex. 5; Tr. pp. 168-188). The Petitioner was notified by letter from Mr. Cooper dated March 10, 2010 that his employment was terminated because his actions on the November 29-30, 2009 work-date constituted grossly inefficient job performance. (R. Ex. 1; Tr. pp. 168-188).

31. After completing his internal agency appeals, the Petitioner filed a contested case at the Office of Administrative Hearings on July 22, 2010 alleging that the Respondent terminated his employment without “just cause” in violation of N.C. GEN. STAT. § 126-35 (2009).

32. Officers Cable, Gardner, Holloway, and King, Sergeant Fisher, Lieutenant Tate, and Ms. Bates all testified at the Petitioner’s contested case hearing and their testimony was consistent with their oral and written statements given during the internal investigation conducted by Captain Daniels. (R. Exs. 8, 9, 12, 13, 14, 15, 16, 17, 18, 19, 23, 24, 25, 26; Tr. pp. 40-51, 51-62, 75-82, 89-92, 94-110, 123-130, 139-142).

33. The Petitioner’s testimony at the contested case hearing contradicted the December 23, 2009 oral and written statements he gave during the internal investigation on critical points. (R. Exs. 8, 9, 11, 26; Tr. pp. 11-40, pp. 196-218). His testimony also contradicted the testimony of other witnesses on critical points. (Tr. pp. 11-40, 40-50, 51-62, 75-82, 94-110, 153-158, 168-188, 196-218). 10

34. At the hearing, the Petitioner testified that on the November 29-30, 2009 work- date he had a terrible headache and had asked Officer Cable, the Acting Sergeant, for permission to go rest in the Yancey unit multi-purpose room to see if he could get better. (Tr. pp. 17-23, 205-218). The Petitioner testified that Officer Cable granted him permission and that their conversation occurred sometime after he worked in the control booth from 10 p.m. until midnight. (Tr. pp. 17-23, 205-218).

35. The Petitioner further testified that he then went to the Yancey multi-purpose room and remained there resting in a chair until someone came inside. (Tr. pp. 17-23, 205-218). He testified that he could not remember who came into the multi-purpose room. (Tr. pp. 17-23, 205-218). The Petitioner denied going to sleep in the multi-purpose room on the November 29- 30, 2009 work-date. (Tr. pp. 17-23, 205-218). He testified that when he entered the multi- purpose room the lights were off and that he did not turn them on. (Tr. pp. 17-23, 205-218). He also testified that he left the door open when he entered the multi-purpose room and that someone else, most likely an inmate cleaning the hallway, closed it. (Tr. pp. 17-23, 205-218).

36. The Petitioner testified that he did not know how long he was in the multi-purpose room during the early hours of November 30, 2009. (Tr. pp. 17-23, 205-218). Asked if he could have remained three hours or more, the Petitioner testified, “I don’t know.” (Tr. p. 213).

37. The Petitioner testified that he did not know Officer Cable well. (Tr. pp. 10-17). He specifically testified that Officer Cable had never worked for the Petitioner’s Christmas tree business. (Tr. pp. 10-17). The Petitioner also denied telling Officer Cable on the November 29- 30, 2009 that he was tired from his weekend trip back from Tampa, Florida and that he was upset about not being given the period from November 25, 2009 through December 16, 2009 off by Avery-Mitchell management in order to work with Christmas tree business. (Tr. pp. 10-17).

38. The Petitioner testified in his December 23, 2009 interview with Captain Daniels and Lieutenant Tate, he never stated that he did not have permission from Officer Cable to go to the Yancey unit multi-purpose room to rest on the November 29-30, 2009 work-date. (R. Exs. 8, 9, 11, 26; Tr. pp. 23-26). The Petitioner also testified that he included the estimate that he spent only 15-20 minutes in the multi-purpose room on his December 23, 2009 written statement only because Lieutenant Daniels insisted that he do so. (R. Exs. 8, 9, 11, 26; Tr. pp. 23-26).

39. The Petitioner further testified that Captain Daniels was biased against him - and wanted him fired - because of a verbal confrontation he once had with Lieutenant Daniels’ father. (Tr. pp. 30-40). The Petitioner also testified that Mr. Cooper wanted to terminate his employment because Mr. Cooper remained upset that his initial recommendation that the Respondent terminate the Petitioner’s employment for the May 26, 2009 incident that was the subject of the August 11, 2009 written warning was overruled by upper-level management for the Respondent. (Tr. pp. 30-40).

40. The Petitioner’s testimony was contradicted on various points by testimony at the hearing from Correctional Officers Cable, Holloway and Gardner, Lieutenant Tate, Captain Daniels, and Mr. Cooper. (Tr. pp. 11-40, 40-50, 51-62, 75-82, 94-110, 153-158, 168-188). 11

41. In his testimony, Correctional Officer Cable said he was not aware that the Petitioner was in the multi-purpose room the early hours of November 30, 2009 until he discovered him in the room when he went there with then Correctional Officer Patterson. (Tr. pp. 94-122). Officer Cable denied giving the Petitioner permission on the November 29-30, 2009 work-date to leave his post to go rest in the multi-purpose room. (R. Exs. 8, 9, 15, 16, 17; Tr. pp. 94-122). Officer Cable testified that he engaged in a conversation with the Petitioner on that work-date, prior to finding the Petitioner in the multi-purpose room; but said that the Petitioner only told him he was tired because of work at his Christmas tree business; and that he was upset that he had not been granted more leave from Avery-Mitchell to work his Christmas tree business. (Tr. pp. 94-110). Officer Cable further testified that he had known the Petitioner for a long time, and had been employed by the Petitioner in the past at the Petitioner’s Christmas tree farm. (Tr. pp. 94-110).

42. Correctional Officer Gardner testified that he saw Officer Cable and Officer Patterson enter the multi-purpose room together in the early hours of November 30, 2009. (R. Exs. 18, 19; Tr. pp. 54-57).

43. Both Captain Daniels and Lieutenant Tate testified that the Petitioner stated during the December 30, 2009 internal investigation interview that he went to the multi-purpose room to rest on the November 29-30, 2009 without permission from Officer Cable, the acting sergeant for the Yancey unit, or the officer in charge of the prison during that work period. (R. Exs. 8, 9, 26; Tr. pp. 40-50,153-158). Both Captain Daniels and Lieutenant Tate also testified that the Petitioner stated during this interview that he was in the multi-purpose room for 15 to 20 minutes before being found there by Officer Cable. (R. Exs. 8, 9, 26; Tr. pp. 40-50, 153-158).

44. Captain Daniels also testified that he did not in any way dictate what the Petitioner needed to say in his December 23, 2009 written statement for the internal investigation. (Tr. pp. 153-168). Captain Daniels further testified that any dispute between his father and the Petitioner played no role in how he conducted the internal disciplinary investigation of the Petitioner. (Tr. pp. 153-168).

45. Mr. Cooper testified that he was not upset that his recommendation to end the Petitioner’s employment for the May 26, 2009 incident that was the subject of the August 11, 2009 written warning for the Petitioner. (Tr. pp. 168-188). Mr. Cooper testified that his recommendation to terminate the Petitioner was based solely on the Petitioner’s actions on the November 29-30, 2009 workday. (Tr. pp. 168-188). He further testified that he was not upset that upper-level management had overruled his previous recommendation by deciding that a written warning was the appropriate discipline for the Petitioner’s actions in the May 26, 2009 incident where the Petitioner left the control room to engage in a confrontation with an inmate. (Tr. pp. 168-188). Mr. Cooper noted that upper-level management for the Respondent often decides that a different level of discipline is more appropriate than what was recommended by the prison unit management. (Tr. pp. 168-188).

46. Petitioner’s hearing testimony, that he had permission from Officer Cable to go and rest in the multi-purpose room on the November 29, 2009 work-date, was contradicted by 12 both his December 23, 2009 oral and written statements for the internal investigation, as well as the hearing testimony from Officer Cable, and Officer Cable’s statements during the internal investigation. Therefore, Petitioner’s testimony on this point was deemed not credible. (R. Exs. 8, 9, 11, 15, 16, 17, 26; Tr. pp. 11-40, 40-50, 51-62, 75-82, 94-110, 153-158, 168-188, 196-216). 47. The evidence presented by the Respondent established that the Petitioner, on the November 29-30, 2009 work-date, left his assigned post in the Avery-Mitchell Yancey unit, without permission from Officer Cable, the acting sergeant, or anyone else in management, to go and rest in the multi-purpose room for several hours, until being discovered there with the lights off and the door locked at approximately 3:45 a.m. by Officer Cable. (R. Exs. 8, 9, 11, 15, 16, 17, 18, 19, 24, 25, 26; Tr. pp. 11-40, 40-50, 51-62, 75-82, 94-110, 153-158, 168-188, 196-216). The evidence also established that the Petitioner on other occasions in November 2009, prior to the November 29-30, 2009 work-date, had abandoned his assigned post without permission to go rest in either the Yancey unit multi-purpose room or the break room. (R. Exs. 8, 9, 11, 15, 16, 17, 18, 19, 24, 25, 26 ; Tr. pp. 11-40, 40-50, 51-62, 75-82, 94-110, 153-158, 168-188, 196-216).

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings.

2. The State Personnel Manual allows dismissal or demotion or a written warning for an employee for a single incident of grossly inefficient job performance without any prior warning or other disciplinary action against the employee. State Personnel Manual, 25 N.C.A.C. 01J.0606 (2009). The State Personnel Manual states that “[g]ross inefficiency ... occurs in instances where the employee fails to satisfactorily perform job requirements as specified in the job description, work plan, or as directed by the management of the work unit or agency; and that failure results in ... the creation of the potential for death or serious harm ... to ...person(s) over whom the employee has responsibility.” State Personnel Manual, 25 N.C.A.C. 01J.0614(5) (2009). Our Courts have previously reviewed this provision in a case that dealt with the issue of causation of death as it related to the alleged gross inefficiency of job performance of a probation/parole officer’s failure to file an “Offense Report” for a probationer’s criminal assault charges. The McKimmey Court interpreted this provision by stating that this “regulation only requires the creation of the potential for death or serious bodily injury and does not require that actual death or serious bodily injury result. North Carolina Department of Correction v. McKimmey, 149 N.C. App. 605, 609 561 S.E.2d 340 (2002); cert. denied, 356 N.C. 165, 568 S.E.2d 199 (2002)

3. The Respondent has its own Personnel Manual, which outlines specific types of conduct constituting grossly inefficient job performance for which an employee can be disciplined. (R. 29).

4. The Department of Correction’s Personnel Manual states that “[l]eaving an assigned post without specific authorization from a properly empowered supervisor” constitutes grossly inefficient job performance for which an employee can be disciplined. (R. Ex. 29).

5. The Department of Correction Personnel Manual also states “[f]ailure to remain alert on the job, resulting in possible threat to security and safety of the State, Department, 13 citizens, employees, inmates, probationers, or parolees” constitutes grossly inefficient job performance for which an employee can be disciplined. (R. Ex. 29).

6. Pursuant to N.C. GEN. STAT. § 126-35(a) (2009), the Respondent could only terminate its employment of the Petitioner for reasons of just cause since the Petitioner had achieved “career state employee” status as defined by N.C. GEN. STAT. § 126-1.1 (2009).

7. Pursuant to N.C. GEN. STAT. § 126-35(d) (2009), the Respondent bears the burden of proof for establishing that there was just cause for the termination of its employment of the Petitioner.

8. The Respondent met its burden of proof, and established by substantial evidence in the record, that it had just cause to terminate its employment of the Petitioner for reasons of grossly inefficient job performance for the November 29-30, 2009 work-date incident, where he left his assigned post without authorization to go to the Yancey unit multi-purpose room at Avery-Mitchell to rest for several hours. (R. Exs. 1, 5, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 23, 24, 25, 26.; Tr. pp. 11-40, 40-50, 51-62, 75-82, 94-110, 153-158, 168-188,196-216).

9. The Petitioner’s decision to go to the Yancey unit multi-purpose room on the November 29-30, 2009 work-date without the approval of Officer Cable, the acting sergeant, or anyone else in management at Avery-Mitchell, standing alone, constituted grossly inefficient job performance. (R. Exs. 1, 5, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 23, 24, 25, 26.; Tr. pp. 11-40, 40-50, 51-62, 75-82, 94-110, 153-158, 168-188, 196-216).

10. The Petitioner’s remaining in the Yancey unit multi-purpose room on the November 29-30, 2009 work-date for more than three hours before being discovered there by Office Cable in an apparent non-alert status, standing alone, also constituted grossly inefficient job performance. (R. Exs. 1, 5, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 23, 24, 25, 26.; Tr. pp. 11- 40, 40-50, 51-62, 75-82, 94-110, 153-158, 168-188, 196-216).

BASED ON THE FOREGOING Conclusions of Law, the undersigned makes the following:

DECISION

That the State Personnel Commission affirm the Respondent’s decision to terminate its employment of the Petitioner in the job of correctional officer.

ORDER

It is hereby ordered that the agency serve a copy of the FINAL DECISION on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with N.C. Gen. Stat. § 150B-26(b). 14

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-36(b). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency making the final decision is the North Carolina State Personnel Commission.

This is the 15th day of April, 2011.

______J. Randall May Administrative Law Judge