State of North Carolina s18

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF SCOTLAND 11-OSP-2720

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CHERYL SIMMONS, ) ) Petitioner, ) ) DECISION v. ) ) NORTH CAROLINA DEPARTMENT ) OF CORRECTION, ) ) Respondent. )

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This contested case was heard before Administrative Law Judge Joe L. Webster on October 10, 2011 at the Office of Administrative Hearings (“OAH”) in Raleigh, North Carolina.

APPEARANCES Petitioner: Kirk J. Angel, ESQ. – Attorney for Petitioner The Angel Law Firm, PLLC PO Box 692 Harrisburg NC 28075 Telephone: 704.455.3311 Facsimile: 704.973.7859

Respondent: Oliver G. Wheeler, ESQ. – Attorney for Respondent Assistant Attorney General North Carolina Department of Justice PO Box 629 Raleigh NC 27602 Telephone: 919.716.6535 Facsimile: 919.716.6761

WITNESSES For Petitioner: Ella Simmonds

For Respondent: Gary Crutchfield Joel Herron Cheryl Simmons

EXHIBITS

Respondent’s Exhibit 1 – Letter to Cheryl Simmons dated September 29, 2010 – Pre- Disciplinary Conference

Respondent’s Exhibit 2 – Letter to Cheryl Simmons dated October 4, 2010 – Recommendation to Dismiss

Respondent’s Exhibit 3 – Letter to Cheryl Simmons dated November 3, 2010 - Dismissal

Respondent’s Exhibit 4 – Disciplinary Policy and Procedures

Respondent’s Exhibit 5 – Scotland Correctional Institution Standard Operating Procedures

Respondent’s Exhibit 6 – State of NC – Department of Correction Division of Prisons Policy and Procedures

Respondent’s Exhibit 7 – Position Description Form

Respondent’s Exhibit 8 – Letter to Cheryl Simmons from Joel N. Herron – Written Warning Unsatisfactory Job Performance dated July 26, 2010

Respondent’s Exhibit 9 – Respondent’s Internal Investigation (as limited)

Did Respondent have just cause to terminate Petitioner?

ON THE BASIS of careful consideration of the sworn testimony of witnesses presented at the hearing, documents received and admitted into evidence, and the entire record in this proceeding, the undersigned makes the following findings of fact. In making these findings, 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 and remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether such testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT 1. Petitioner began working for Respondent in October 1997 as a Correctional Officer and was employed at the Southern Correctional Facility until her discharge. (Tr. pg. 92)

2. Petitioner was promoted to Correctional Sergeant in 2004. (Tr. pg. 92)

3. As a Sergeant, Petitioner held supervisory duties including supervising officers, making sure policies and procedures were followed, and interpreting policy and procedures. (Tr. pg. 27 and 92-93)

4. On July 20, 2010, Petitioner was contacted several times via telephone by Correctional Officer Willie Chavis. (Tr. pg. 99 -100)

5. Both Petitioner and Officer Chavis were off duty at the time of the telephone calls. (Tr. pg. 100-102)

6. In the evening of July 20, 2010 at or about 9:00 pm, Officer Chavis advised Petitioner that he had previously brought cell phones into Scotland Correctional facility and given them to inmates. (Tr. pg. 78 and 87)

7. Neither Petitioner nor Officer Chavis were scheduled for duty until July 21, 2010 and Petitioner did not report Officer Chavis’ statement to anyone at Scotland prior to returning to duty on July 21, 2010. (Tr. pg. 104) Petitioner thought Respondent already knew about the incident.

8. Petitioner first reported Officer Chavis’ statement regarding the cell telephones to her supervisor, Lieutenant Simmonds the Officer in Charge, when she returned to work on July 21, 2010 at approximately 6:00 pm. (Tr. pg. 72 and 104)

9. Lieutenant Simmonds forwarded Petitioner’s report of Officer Chavis’ statement through her chain of command that same evening. (Tr. pg. 125-128)

10. At approximately 8:00 pm, Assistant Superintendent Gary Crutchfield arrived at Scotland Correctional facility to investigate the report. (Tr. pg. 128-129)

11. Mr. Crutchfield removed Officer Chavis from his duty station in the facility after 8:00 pm. (Tr. pg. 85-87)

12. For two (2) months prior to July 20, 2010, an anonymous caller had made multiple calls reporting that a Correctional Officer was supplying cell phones to inmates at Scotland Correctional facility. (Tr. pg. 121-123)

13. Approximately three (3) weeks prior to July 20, 2010, the anonymous caller identified Officer Willie Chavis as the Officer who was supplying cell phones to inmates. (Tr. pg.123)

14. These anonymous reports were received by Lieutenant Simmonds and reported through the chain of command. (Tr. pg 121-124) 15. At no time prior to July 20, 2010, did anyone remove Officer Chavis from duty despite Lieutenant Simmonds requests that he be reassigned. (Tr. pg. 124)

16. Respondent provided Petitioner with a Notice of Pre-Disciplinary Conference dated September 29, 2010. (Ex. 1)

17. The Pre-Disciplinary Notice stated that Respondent had “completed [its] investigation” and that dismissal was recommended due to unacceptable personal conduct. (Ex. 1)

18. The Pre-Disciplinary Conference letter indicated that Petitioner was being recommended for dismissal because she failed to report Officer Chavis’ statement regarding the cell phones until July 21, 2010. (Ex. 1)

19. Respondent later sent Petitioner a dismissal letter dated November 3, 2010, which stated that Petitioner was recommended for dismissal due to unacceptable personal conduct and grossly inefficient job performance. (Ex. 3)

20. The basis of the dismissal letter was that Petitioner failed to report Officer Chavis’ statement. (Ex. 3)

21. Joel Herron, Corrections Administrator, testified that he recommended Petitioner be dismissed due to her failure to immediately report the statement made by Officer Chavis. (Tr. pg. 6, 12-14)

22. Joel Herron testified that Petitioner engaged in Unacceptable Personal Conduct and Grossly Inefficient Job Performance by failing to carry out her duty to report Chavis immediately. (Tr. pg. 20-21)

23. Respondent did not produce any written policy that required Petitioner to immediately report the statement by Officer Chavis that he had previously provided cell phones to inmates.

24. Petitioner and Lieutenant Simmonds testified that they believed the policy required reporting with twenty-four (24) hours. (Tr. pg. 98, and 126-1)

25. Lieutenant Simmonds was Petitioner’s supervisor for almost two years. (Tr. pg. 120-121) Lieutenant Simmons performed appraisals or TAPS on Petitioner and gave her very good ratings. (Tr. pg. 121).

26. Lieutenant Simmonds disagreed with Petitioner’s punishment and felt it was too harsh. She has seen disparate treatment of employee offenders at Scotland since the date it opened. (Tr. pg 135-136) One such instance is when Sergeant Eric Jones brought a loaded weapon into the dining hall. He was not relocated; he was not fired. Lieutenant Simmonds does not feel Petitioner was treated fair compared to other employees at Scotland. Sergeant Jones received an18-month written warning. The incident occurred a few months before the cell phone incident. (Tr. pg. 135-137) Lieutenant Simmonds would have felt differently about Petitioner’s punishment if he had been at work when the telephone conversation occurred with Officer Chavis. (Tr. pg.138).

27. Petitioner reported the incident soon after his arrival at work.

28. Petitioner had a written warning dated July 26, 2010, that was issued due to her failure to ensure a maximum control inmate was properly restrained before opening his cell. (R. Ex. 8; Tr. 28, 93). This written warning was active at the time of Petitioner’s dismissal. (Tr. 28.)

BASED UPON the foregoing Findings of Fact, the undersigned hereby makes the following:

CONCLUSIONS OF LAW

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

2. When Respondent dismissed her, Petitioner was a career State employee entitled to the protections of the North Carolina State Personnel Act, including the just cause provision of N.C. Gen. Stat. § 126-35.

3. The State Personnel Act permits disciplinary action against career state employees for “just cause.” N.C. Gen. Stat. § 126-35. Although “just cause” is not defined in the statute, the words are to be accorded their ordinary meaning. Amanini v. Dep’t of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114 (1994) (defining “just cause” as, among other things, good or adequate reason). “The fundamental question... is whether the disciplinary action taken was ‘just.’ Inevitably, this inquiry requires an irreducible act of judgment that cannot always be satisfied by the mechanical application of rules and regulations.” N.C. Dept. of Environment and National Resources, Division of Parks and Recreation v. L. Clifton Carroll, 358 N.C. 649, 669; 599 S.E. 2d 888, 900 (2004).

4. Just cause’ like justice itself, is not susceptible of precise definition…. It is a ‘flexible concept, embodying notions of equity and fairness,’ that can only be determined upon an examination of the facts and circumstances of each individual case.” Id. [cites omitted.] “Just cause requires ‘misconduct of a substantial nature’ and does not encompass ‘technical violations of statute or official duty without a wrongful intention’” (emphasis added). Id. At 669, 901.

5. Respondent has the burden of proof in this contested case hearing to show that it had just cause to dismiss Petitioner in accordance with N.C. Gen. Stat. § 126-35(d). See also Teague v. N.C. Dep’t of Transportation, 177 N.C. App. 215,628 S.E.2d 395, disc. rev. denied, 360 N.C. 581 (2006).

6. Administrative regulations provide two grounds for discipline or dismissal based on just cause: Unsatisfactory job performance and unacceptable personal conduct. N.C. Admin. Code tit. 25 r. U.0604(b).

7. Unacceptable personal conduct includes: (1) conduct for which no reasonable person should expect to receive prior warning and; … or the willful violation of known or written codes. N.C. Admin. Code tit. 25 r. 1 J.06l4(i); see also Hilliard v. N.C. Dep’t of Correction, 173 N.C. App. 594, 620 S.E.2d 14 (2005). 8. Unacceptable personal conduct is misconduct of a serious nature. N.C. Dep’t of Env’t and Natural Resources v. Carroll, 358 N.C. 649,599 S.E.2d 888 (2004). One act of unacceptable personal conduct presents just cause for any discipline, up to and including dismissal. Hilliard, 173 N.C. App. at 597, 6 Reviewing whether disciplinary action is supported by just cause generally requires a two-part inquiry: (1) “whether the employee engaged in the alleged conduct,” and (2) “whether that conduct constitutes just cause for the disciplinary action taken.” N.C. Dep’t of Env’t & Natural Res. v. Carroll, 599 S.E.2d 888, 898 (N.C. 2004) (quoting Sanders v. Parker Drilling, 911 F.2d 191, 194 (9th Cir. 1990)) (internal quotation marks omitted). 20 S.E. 2d at 17.

9. 25 NCAC 1J .0604(c) provides that an employer may discipline or dismiss an employee for just cause based upon grossly inefficient job performance as defined in 25 NCAC 1J.0614. Grossly inefficient job performance may result in dismissal without any prior disciplinary action as provided in 25 NCAC 1J .0606.

10. “Grossly Inefficient Job Performance” is defined as “a type of unsatisfactory job performance that occurs in instances in which 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 bodily injury to . . . a person(s) over whom the employee has responsibility.” 25 N.C. Admin. Code 1J .0614(5).

11. Respondent dismissed Petitioner for unacceptable personal conduct and grossly inefficient job performance. The undersigned finds as a matter of law that Respondent’s failure to include “grossly inefficient job performance” in the Pre-Disciplinary Notice or the Pre- Disciplinary Conference letter was of no consequence because grossly inefficient job performance is a form of unacceptable personal conduct and the Dismissal letter’s inclusion of both unacceptable job performance and grossly inefficient job performance did not include any new acts or omissions set forth as reasons for the termination pursuant to NCGS 126-35(a). Moreover, Respondents failure to include “grossly inefficient job performance” in the pre- termination letters are also of no consequence since the undersigned finds as a matter of law that Respondent did not have just cause to terminate Petitioner for the reasons given.

12. As established by the foregoing Findings of Fact, the evidence fails to demonstrate that Petitioner engaged in unacceptable personal conduct or that Petitioner engaged in grossly ineffective job performance. Respondent failed to show any policy that Petitioner violated. Additionally, any argument Respondent raised that Petitioner’s actions created a safety issue are belied by its own conduct in refusing to remove Chavis for three (3) weeks.

13. Therefore, based on the foregoing, Respondent did not have just cause to dismiss Petitioner as it did not prove her actions amounted to unacceptable personal conduct or grossly ineffective job performance in accordance with N.C.G.S. 126-35 and the relevant provisions of the State Personnel Manual of the North Carolina Office of State Personnel.

BASED UPON the foregoing Findings of Fact and Conclusions of Law, I make the following: DECISION

Respondent did not meet its burden of showing, by a preponderance of the evidence, that it had just cause to dismiss Petitioner. Respondent’s decision to dismiss Petitioner from her position as a Correctional Sergeant is REVERSED. Petitioner shall be reinstated to her position with Respondent with all back pay and other benefits retroactively, as if she never had been discharged. Petitioner shall also be reimbursed her reasonable attorney’s fees.

ORDER AND NOTICE

It hereby is 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).

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 the 25th day of January, 2012.

______Joe L. Webster Administrative Law Judge