STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS HALIFAX COUNTY 05 OSP 0851

CHARLES H. BOYKIN, JR. ) Petitioner ) ) vs. ) DECISION ) HALIFAX COUNTY HEALTH ) DEPARTMENT ) Respondent )

THIS MATTER came on for hearing before the undersigned, Beecher R. Gray, Administrative Law Judge, on October 31, 2005, in Halifax, North Carolina. At the close of all evidence, the undersigned directed Respondent to draft a proposed decision. Respondent’s proposed decision was received September 1, 2006.

APPEARANCES

Petitioner: Charles H. Boykin, Jr., appeared pro se.

Respondent: William McBlief, Esq., Halifax County Attorney.

ISSUE

Whether Respondent had just cause to dismiss Petitioner for grossly inefficient job performance.

STATUTES AND RULES

1. Personnel Rules for Local Government Employment Subject to the State Personnel Act: Rules .2301; 2303; 2310; and

2. North Carolina General Statutes: N. C. G. S. §§ 126-35(a); 150B-23(a).

WITNESSES

Patricia Harris, R.N. Masqood Valliani, M. D. Patricia Gilmartin, Regional Environmental Health Specialist Jeff Dillard, Environmental Health Specialist Lynda Smith, Health Director, FINDINGS OF FACT

1. The parties stipulated on the record that each received notice of hearing by certified mail more than fifteen (15) days prior to the date of hearing and that notice was proper.

2. Cheyquan Smith, hereinafter “the child”, male, age three, was seen at the Health Department in early 2004 as a patient or client of the Health Department and as a member of the public of Halifax County, North Carolina, with an elevated blood level for lead, indicating lead poisoning.

3. Maqsood Valliani, MD, a pediatrician in private practice employed by the Halifax County Health Department, testified as an expert witness in pediatric medicine. He treated the child at the Health Department and found that the child had a blood lead level of 30, which is in excess of the normal blood lead level of 10 or less. The child twice tested positive for lead and was diagnosed by Dr. Valliani as having lead poisoning.

4. Dr. Valliani established that delay in treatment for lead poisoning created the potential for death or serious bodily injury to the child.

5. Dr. Valliani’s expert testimony established the following general effects of lead poisoning:

a. continued exposure to lead over time accumulates more and more lead in the body;

b. the lead is absorbed by the bones, muscles, and organs of the body;

c. the lead in the body can cause learning disability, developmental problems, lowered IQ, behavioral problems, and seizures;

d. that on rare occasions the lead in the body can even cause death; and

e. that children are the most at risk to the ill effects of lead poisoning because of their size and the developing process normal for children growing toward adulthood.

6. Patricia Gilmartin, Regional Environmental Health Specialist, an employee of the North Carolina Department of Environmental and Natural Resources since 2001, formerly served another North Carolina county in the same capacity as Petitioner served in Halifax County. North Carolina authorized Ms. Gilmartin from 1998 onward as an Environmental Health Specialist in the North Carolina child lead program.

7. Ms. Gilmartin’s investigation into this case found that the child presented a “confirmed case” of lead poisoning, meaning the child twice tested positive for lead at a level greater than 20 within the same month.

2 8. The job requirements of an Environmental Health Specialist in a confirmed lead poisoning case are as follows:

a. Environmental Health Specialist should take samples at the location of suggested exposure, placing the samples in a sealed bottle, and labeling the bottle with the date, exact area (e. g. window sill), child’s name and address, address of the location, and type of sample (e. g. dust, paint, or soil);

b. Environmental Health Specialist should send the bottles to the North Carolina laboratory with a form completed by the Environmental Health Specialist;

c. Environmental Health Specialist should review the lab report as soon as it arrives from the North Carolina laboratory;

d. Environmental Health Specialist should follow up with the owner of the lead contaminated premises, notify the owner of his duty to clean up the lead, and monitor the premises by periodic inspections of the lead contaminated area; and

e. in the event the lab report proved of no benefit for whatever reason, Environmental Health Specialist should immediately resample and start the process again.

9. Petitioner was certified by North Carolina as an Environmental Health Specialist. As an Environmental Health Specialist, he worked with Ms. Gilmartin when taking samples, and took direction from her in the course of performing the other requirements of his job. Ms. Gilmartin directed other Environmental Health Specialists in several counties in North Carolina in addition to Petitioner.

10. Ms. Gilmartin and Petitioner visited the child’s residence on March 30, 2004, and took samples which were placed in designated sample bottles. Petitioner labeled the bottles, which were left with Petitioner to forward to the North Carolina State laboratory. Ms. Gilmartin started the form but Petitioner finished the form and sent the bottles and form to the laboratory.

11. Ms. Gilmartin discovered, later in 2004, as part of her job duties, that she had not received Petitioner’s report of his monitoring inspections of lead contaminated premises. She repeatedly telephoned Petitioner without response and subsequently contacted Jeff Dillard, Petitioner’s immediate supervisor at the Health Department, to inform him that Petitioner had not replied to her calls and that Petitioner had the responsibility to schedule these monitoring inspections as part of this job duties as an Environmental Health Specialist. She traveled to Halifax, North Carolina to the Health Department, pulled Petitioner’s files for him from his own file storage, and heard Petitioner say he would get on it.

3 12. Ms. Gilmartin subsequently received a list of lead investigations by Petitioner from the Department of Environmental and Natural Resources for use by Petitioner to confirm the accuracy of the list so the Department of Environmental and Natural Resources could authorize payment to Halifax County. She realized, by reviewing the list, that Petitioner had not done any inspections of the child’s premises where she and Petitioner had taken the lead samples. She immediately contacted Petitioner who blamed the North Carolina laboratory. She then called Petitioner’s supervisor, Jeff Dillard, and arranged a meeting at the Halifax County Health Department with Ms. Gilmartin, Mr. Dillard, and the Halifax County Health Director, Lynda Smith.

13. Ms. Gilmartin attended the meeting as arranged, reviewed the lab report from the initial sample collections (Exhibit A, introduced into evidence), and she, Jeff Dillard, and Petitioner, that same day, went to the premises to resample for lead.

14. Ms. Gilmartin knew immediately upon looking at the lab report (Exhibit A) that a resample was needed, because the lab report did not show the area of the child’s home from which the sample was collected. Consequently, neither she, Petitioner, nor anyone else could tie the lab results to the exact area at the child’s home that contained lead.

15. The lab report (Exhibit A) reflected inadequate labeling by Petitioner as to exact sample origin, but Petitioner should have realized upon receipt of the lab report that he needed to immediately resample and start the process over.

16. Ms. Gilmartin found, by comparing the initial lab report (Exhibit A) concerning samples collected on March 30, 2004, with the subsequent lab report (Exhibit B, introduced into evidence) concerning samples collected on March 10, 2005, that:

a. Exhibit A showed “Sample Descriptions” as “Dust Sample”, “Soil Sample”, and “Paint Sample”, while Exhibit B showed “Dust, Front Porch Floor”, “Dust Living Room Window Sill”, “Dust Kitchen Floor”, etc.; as a result, Exhibit A did not correlate the samples with the exact area of the samples while Exhibit B did so correlate;

b. that both Exhibits A and B were written in Petitioner’s handwriting, except for the Table presumably written by someone at the state laboratory; and

c. the results from the North Carolina laboratory published in both reports (Exhibits A and B) showed samples containing levels of lead higher than the standards set by the State.

17. North Carolina is concerned with lead poisoning in children because of the serious health hazards it presents.

4 18. The chronology of events concerning lead poisoning of the child is as follows:

a. March 30, 2004 – samples taken at child’s residence;

b. April 12, 2004 – State lab report received by Petitioner at Halifax County Health Department;

c. September 17, 2004 – Ms. Gilmartin contacted Mr. Dillard about Petitioner’s failure to return her calls about his tardy monitoring investigations;

d. October 5, 2004 – Mr. Dillard met with Petitioner about the tardy monitoring investigations;

e. March 9, 2005 – Ms. Gilmartin contacted Mr. Dillard about Petitioner’s failure to conduct any monitoring investigations at the child’s residence; Mr. Dillard got the case file from Petitioner; Mr. Dillard saw the Halifax County Health Director, Lynda Smith, who told him to investigate the matter promptly;

f. March 10, 2005 – Ms. Gilmartin, Ms. Smith, and Mr. Dillard met at the Health Department; thereafter, they went to the child’s residence and resampled for lead;

g. March 14, 2005 – Mr. Dillard interviewed Petitioner about the 11 month delay from the receipt of the initial lab report (Exhibit A) to the resampling; Petitioner stated he forgot about it;

h. March 16, 2005 – the North Carolina lab report for the resamples (Exhibit B) was received; and

i. March 18, 2005 – Mr. Dillard met with Ms. Smith.

19. The first lab report (Exhibit A) was defective because it did not show where in or around the premises the samples were taken, making it impossible for the owner to remove the lead contamination and for Petitioner to conduct monitoring investigations of the owner’s compliance with his duty to remove the lead. The sample, defective on its face, showed the need for resampling of the premises but Petitioner did not resample, conduct a monitoring investigation, or do anything at all about the lead at the premises until eleven (11) months later after Ms. Gilmartin caught this delay.

20. The last lab report (Exhibit B) was proper because it showed the exact areas of lead contamination at or around the child’s premises.

21. Petitioner never asked his supervisor, Jeff Dillard, for help with respect to the sampling, investigating, or anything else at the child’s premises.

5 22. Either Supervisor Dillard or another Environmental Health Specialist followed up with the owner after the resampling and receipt of the correlated lab report (Exhibit B) to get the lead contamination areas cleaned so they no longer presented a health hazard.

23. Petitioner was certified by North Carolina as an Environmental Health Specialist following a three-day course offered by the State.

24. Petitioner later told Supervisor Dillard that personal “legal problems” had caused his delay in the child’s lead poisoning case. Petitioner also told Supervisor Dillard that he initially tried to contact Patricia Gilmartin about follow-up but then had forgotten about the case.

25. The following is a chronology of events concerning the lead poisoning of the child, Petitioner’s actions or inactions, and Health Director, Lynda Smith’s actions.

a. March 9, 2005 – the Health Department Nursing Supervisor gave Ms. Smith information showing high levels of lead in the child’s body from January 2004 through December 2004;

b. March 10, 2005 – Ms. Smith met with Mr. Dillard and Ms. Gilmartin;

c. March 21, 2005 – Ms. Smith held a predismissal conference with Petitioner during which meeting Petitioner said her forgot about the child’s lead poisoning case; a Memorandum dated the same day gave Petitioner notice of the meeting and Respondent’s consideration of dismissal for Grossly Inefficient Job Performance (Exhibit C introduced into evidence);

d. March 22, 2005 – Ms. Smith held a Dismissal Conference with petitioner; during the conference, Ms. Smith gave Petitioner his “Dismissal Letter,” dismissing him for Grossly Inefficient Job Performance (Exhibit D introduced into evidence); later the same day, Ms. Smith received Petitioner’s written appeal (Exhibit E introduced into evidence);

e. March 23, 2005 – Ms. Smith sent Petitioner a letter scheduling a hearing with her to provide Petitioner the opportunity to provide any additional information regarding his dismissal (Exhibit F introduced into evidence);

f. March 31, 2005 – at the scheduled hearing petitioner explained he did not have any additional information and Ms. Smith decided to let the original decision of dismissal stand; the next day, April 1, 2005, Ms. Smith put her decision in writing by letter to Petitioner (Exhibit G introduced into evidence);

6 g. April 8, 2005 – Petitioner appealed to the Halifax County Board of Health (Exhibit H introduced into evidence);

h. April 12, 2005 – Ms. Smith set the appeal hearing before the Board of Health for April 25, 2005 in a letter to Petitioner sent to Petitioner by registered mail (Exhibit I introduced into evidence); and

i. Petitioner did not appear at the Board of Health hearing on the date set out and the Board of Health upheld Petitioner’s dismissal.

26. Petitioner did not testify or present any witnesses on his behalf during this contested case hearing.

27. Petitioner did have the opportunity to cross-examine the Health Department’s witnesses and that evidence appears in the above paragraphs.

28. Cheyquan Smith, a three year old minor, was a client of the Halifax County Health Department because of his confirmed case of lead poisoning.

29. Petitioner made no reasonable effort to meet his job requirements as shown by his failure to return calls from the State Regional Environmental Health Specialist, his failure to perform a monitoring investigation after the State Regional Environmental Health Specialist came to his office and pulled the file for him, his failure to ask his immediate supervisor for help, his blaming the delay on the State laboratory, and his admission that he forgot about the minor’s case.

30. Petitioner’s job requirements were reasonable in that Petitioner was certified by the State to perform these duties.

31. Petitioner’s job requirements were directed by the management of the agency through Petitioner’s immediate supervisor at the Halifax County Health Department and by the State Regional Environmental Health Specialist.

32. Both lab reports, the defective one and the later one, showed dangerously high levels of lead.

33. Petitioner’s eleven month delay created the potential for death or serious bodily injury to the minor, including learning disability, behavioral problems, lowered IQ, developmental problems, and seizures as well as fatality, as a proximate result of lead poisoning from the lead contaminated areas of the minor’s premises.

34. 37. The essential elements of grossly inefficient job performance, as shown by Rule .2303 of the Personnel Rules for Local Government Employment Subject to the State Personnel Act, as well as by Baloch v. NC Department of Correction, No. COA 03-491 (January 14, 2004, NC Court of Appeals, pp 8-9 (unpub. op.) (summarizing decisional case law, statutes, and rules), include:

7 a. failure to satisfactorily perform job requirements; b. directed by the management of the agency; c. resulting in; d. the potential for death or serious bodily harm; e. to a client or members of public.

CONCLUSIONS OF LAW

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

2. Petitioner, employed by the Health Department as an Environmental Health Specialist, failed to meet his job requirements by delaying to take resamples at the minor’s premises from April 12, 2004, the date of receipt of a lab report from the state laboratory that tested lead samples taken from the minor’s premises, until March 10, 2005, when his immediate supervisor and the State Regional Environmental Health Specialist compelled him to resample the same premises in order to obtain a proper laboratory report from the State laboratory. Petitioner’s job performance created the potential for serious bodily harm or death to the child, a client of Respondent Halifax County Health Department.

3. Respondent produced substantial evidence for each essential element of grossly inefficient job performance.

4. Petitioner properly was dismissed for grossly inefficient job performance, a type of unsatisfactory job performance which supports dismissal for just cause.

5. Petitioner received proper notice of his pre-termination conference before the Health Director regarding his dismissal for grossly inefficient job performance as shown by the memo sent by the Health Director to him on March 21, 2005 (See Exhibit C).

6. Petitioner received proper notice of his termination for grossly inefficient job performance as shown by the letter from the Health Director on March 22, 2005 (See Exhibit D).

7. Petitioner received proper notice of his April 25, 2005 post-termination hearing before the Halifax County Board of Health regarding his dismissal for grossly inefficient job performance as shown by the letter sent by the Health Director to him by certified mail on April 12, 2005 (See Exhibit I).

8. Petitioner failed to carry his burden of proof that he failed to receive all the notice due him with respect to his dismissal for grossly inefficient job performance. See Leiphart v. NC School of the Arts, 80 N.C. App. 339, 348-53, 342 S.E.2d 917, 921-24 (1984), cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986).

8 DECISION

Respondent’s decision to dismiss Petitioner for grossly inefficient job performance is supported by the evidence and is affirmed.

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, N.C. 27699-6714, in accordance with North Carolina General Statute 150B-36(b).

NOTICE

The State Personnel Commission will issue an advisory opinion to the Director of the Halifax County Health Department. G.S. 150B-23(a). The Director of the Halifax County Health Department will make the final decision in this contested case.

The agency making the final decision in this contested case 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. G.S. 150B-36(a).

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

This 15th day of September, 2006.

______Beecher R. Gray Administrative Law Judge

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