State of North Carolina s52

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF PITT 07 OSP 0977Gary Stephens ) Petitioner ) ) vs. ) DECISION ) N. C. Dept of Juvenile Justice and ) Delinquency Prevention ) Respondent )This matter was heard before Shannon R. Joseph, Administrative Law Judge, on 15 October 2008 in Farmville, North Carolina and on 31 October 2008 in Raleigh, North Carolina. At the conclusion of the hearing, Judge Joseph announced that she had decided that the Respondent had just cause to terminate Petitioner’s employment. She further noted for the record that Petitioner’s credibility had been significantly undermined. Respondent’s attorney was directed to submit a proposed decision, which was filed on January 21, 2009. Judge Joseph having resigned her position in early January, this decision is being issued by Senior Administrative Law Judge Fred G Morrison Jr.APPEARANCESFor Petitioner: Calvin King Attorney at Law Post Office Box 1124 New Bern, North Carolina 28560For Respondent: Gail E. Dawson Special Deputy Attorney General Teresa H. Pell Special Deputy Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina 27602-0629ISSUEWhether the North Carolina Department of Juvenile Justice and Delinquency Prevention had just cause to dismiss Petitioner for unacceptable personal conduct and grossly inefficient job performance. MOTIONS AND STIPULATIONSRespondent moved for a protective order with respect to evidence identifying juveniles in the custody of the Department of Juvenile Justice and Delinquency Prevention. The motion was allowed.1. At hearing, Petitioner made no motion for a directed verdict.2. At hearing, Respondent moved to introduce into evidence a letter dated 2 May 2007 from Pitt County DSS to Stanley Melvin substantiating neglect/lack of proper supervision on Petitioner, identified as Respondent’s Exhibit 26. Petitioner objected to its admission. Judge Joseph allowed Petitioner’s objection. Respondent made an offer of proof with the Court’s permission. (T pp 401-404 ) WITNESSESPetitioner: NoneRespondent: Amando Pena, Annie Moye, Stanley Melvin, Linda Terry, Michael Bryant, and Petitioner EXHIBITS ADMITTED INTO EVIDENCEResp’s Exhibit 1: Diagram of Pitt Juvenile Detention CenterResp’s Exhibit 2: Serious Incident Report (1/11/07)Resp’s Exhibit 3: Written statement by Amando Pena for Serious Incident ReportResp’s Exhibit 4: Summary of Mr. Pena’s interview with Linda Terry on 1/22/07Resp’s Exhibit 5: Written statement by Ms. Moye for Serious Incident Report (2/9/07)Resp’s Exhibit 5A: Original of written statement by Ms. Moye for Serious Incident Report (2/9/07)Resp’s Exhibit 6: Summary of Ms. Moye’s interview with Linda Terry on 1/22/07Resp’s Exhibit 7: Summary of Ms. Moye’s second interview with Linda Terry on 1/31/07Resp’s Exhibit 8: Written statement by Ms. Moye (1/19/07)Resp’s Exhibit 9: Job Description - Youth Services Counselor Technician2 Resp’s Exhibit 10: E-mail memo from Stanley Melvin to Michael Bryant re: incident (1/11/07)Resp’s Exhibit 11: Letter from Stanley Melvin to Pitt County DSS, reporting abuse and/or neglect (1/11/07)Resp’s Exhibit 12: Letter from Pitt County DSS indicating report is being investigated (1/16/07)Resp’s Exhibit 13: Written statement by Petitioner for Serious Incident Report (1/11/07)Resp’s Exhibit 14: Notice of Investigatory Placement (1/11/07)Resp’s Exhibit 15: Pre-disciplinary Conference Notification letter (2/12/07)Resp’s Exhibit 16: Pre-Disciplinary Conference Notes from Stanley Melvin to Sharyn Holt (2/13/07)Resp’s Exhibit 17: Recommendation e-mail from Stanley Melvin (2/14/07)Resp’s Exhibit 18: Dismissal Notification letter (2/15/07)Resp’s Exhibit 19: DJJDP Policy YD/DC 6: Security and Control (Juvenile Supervision)Resp’s Exhibit 20: DJJDP Policy YD/DC 12.1: Residential LifeResp’s Exhibit 21: Statement of Understanding Policy signed by Petitioner (3/29/05)Resp’s Exhibit 22: Daily Schedule - Pitt Juvenile Detention CenterResp’s Exhibit 23: Weekend Schedule - Pitt Juvenile Detention CenterResp’s Exhibit 24: Audio CD of Linda Terry’s interview of Petitioner on 1/22/07Resp’s Exhibit 25: Summary of Petitioner’s interview with Linda Terry on 1/22/07Resp’s Exhibit 27: Letter to Petitioner documenting medication error made by him (1/24/02)Resp’s Exhibit 28: Written Warning issued to Petitioner regarding his misuse of State property (11/10/04)3 Resp’s Exhibit 29: Written Warning issued to Petitioner for failing to follow call-in policy (9/7/00)Resp’s Exhibit 30: Documented Counseling issued to Petitioner for unacceptable personal conduct (7/13/04)Resp’s Exhibit 31: Administrative Investigation Form signed by Petitioner (1/22/07)Pet’s Exhibit 1: Morse Watchman records (1/10/07, 9:40 until 11:43)FINDINGS OF FACT1. At hearing, Judge Joseph considered Petitioner’s claim that he was dismissed without just cause for unacceptable personal conduct and grossly inefficient job performance. (T p 7)2. Respondent, North Carolina Department of Juvenile Justice and Delinquency Prevention [hereinafter “DJJDP”], is a North Carolina State Agency responsible for, among other things, the custody, care, safety and supervision of juveniles being held in its detention facilities. (T p 132)3. Pitt Regional Detention Center is a facility operated by Respondent that holds juveniles as ordered by the courts pending hearing on allegations of delinquency. Many of the juveniles in Respondent’s custody have been alleged to have committed serious crimes and are a risk for assaultive behavior. The juveniles housed in detention facilities exhibit very unpredictable behavior. (T pp 10, 400) 4. Petitioner, Gary Stephens, a State employee for approximately thirteen years, was employed as a Youth Services Counselor Technician by the North Carolina Department of Juvenile Justice and Delinquency Prevention, Pitt Regional Detention Center, when he was dismissed by Respondent on 16 February 2007 for unacceptable personal conduct and grossly inefficient job performance. (T pp 132-133, 452, 454) 5. The primary job responsibility of a Youth Services Counselor Technician is to maintain the safety and security of the juveniles and the facility. Secondarily, Youth Services Counselor Technicians maintain the sanitary conditions of the facility, do laundry, process newly admitted juveniles and provide meals, access to medical care, counseling and personal hygiene time for the juveniles in the facility. (T pp 13, 62, 133, 401; Resp’s Exhibit 9)6. On 10 January 2007, Petitioner was scheduled to work the 4:00 p.m. to 12:00 a.m. shift. Petitioner was late that day and arrived to work about 5:05 p.m. Male staff members Moore and Simpson and female staff members Moye and Smith were also working when Petitioner arrived. (T pp 63, 282-83) When Petitioner arrived at work the juveniles were eating4 their meals and taking their showers. From 7:00 p.m. to 8:00 p.m. the juveniles had regularly scheduled visitation and then free time. The male juveniles were on A wing of the building supervised by Petitioner, Moore and Simpson. The female juveniles were on B wing of the building supervised by Moye and Smith. (T pp 65, 284-285, 288; Resp’s Exhibit 1)7. By 10:30 p.m. the male staff had locked the male juveniles in their rooms for bedtime and female staff had locked the female juveniles in their rooms for bedtime. Male juveniles D.H. and T.H. remained out of their rooms assisting with cleaning as well as watching a sports event on the A wing television. Staff members Moore, Simpson and Smith had finished their shifts, leaving Petitioner and Moye working in the facility. (T pp 63-64, 67, 285, 287-88, 290-91) Neither Petitioner nor Moye was superior in rank to the other or supervised the other. (T pp 62, 395, 465) Petitioner was with the male juveniles on A wing and Ms. Moye was with the female juveniles on B wing. (T pp 66, 285; Resp’s Exhibit 25)8. DJJDP Youth Development Detention Center Policy 6 and Policy 12.1 require that a female juvenile be supervised by at least one female staff at all times and that a male juvenile be supervised by at least one male staff at all times. (T pp 66, 222-223, 397; Resp’s Exhibits 19, 20)9. Thirteen year old male juvenile R.S. was in room 1 on A wing, housed with a roommate. (T pp 16, 29)10. On 10 January 2007 male staff Pena arrived at Pitt Regional Detention Center a few minutes before midnight to begin his midnight to 8:00 a.m. shift. (T pp 13-14) When staff Pena entered the facility, he saw Petitioner in A wing near the television talking with male juveniles D.H. and T.H. (T p 16)11. It was common for staff to choose juveniles to assist with cleaning after bedtime as a reward for positive behavior; however, it was not common for juveniles to be up at midnight and policy requires eight hours of sleep for juveniles. The day starts for juveniles at 6:00 a.m. (T pp 78-79, 184-185, 220; Resp’s Exhibit 20)12. Pena heard male juvenile R.S. making noise in Room 1. (T pp 15-16) Pena asked Petitioner what was up with R.S. Petitioner just shrugged like he didn’t know. Pena went through the control room to B Wing to get his coffee pot, dropped it off in the kitchen, and came back to A wing. Petitioner had put male juveniles D.H. and T.H. in their rooms. Petitioner was in the area of Room 1. Pena could still hear male juvenile R.S. saying something, but he sounded differently than usual. While talking to Petitioner, Pena heard R.S. moaning and he sounded like he was in pain. Pena opened Room 1 to investigate and found R.S. lying on his left side, facing the wall and holding the right side of his face with his right hand. Pena observed that R.S.’s mouth was locked in an open position. There was a bright red print on the right side of his face that looked like a closed hand had hit him. R.S. was saying what sounded like “he ha”, which Pena took to mean “it hurts”. (T pp 17-19, 33) R.S. was “mewling”, making sounds of being in pain and could barely talk. Although it took a while to understand R.S. because his mouth was locked open, Pena figured out that R.S. was saying that male juveniles D.H. and T.H. had assaulted him. (T pp 20-21,28; Resp’s Exhibit 2)5 13. Pena asked Petitioner what had happened and whether he had written anything about the incident. Petitioner said he did not know what had happened and that he did not see anything so he was not going to write anything. (T p 20) Petitioner questioned D.H. and T.H, offered R.S. some ice, and left. (T pp 23-24, 434-435)14. Pena spoke to male juvenile D.H. who was rolling around laughing and denying that anyone hit R.S. Male juvenile T.H. denied any knowledge of what happened. (T p 21) D.H. and T.H. later admitted to assaulting R.S. (T p 435)15. Pena notified his supervisors through the chain of command and received permission from Stanley Melvin, Facility Director, to transport R.S. to Pitt County Memorial Hospital Emergency Room. (T pp 25, 134)16. R.S.’s jaw was dislocated. After R.S. was medicated, a physician was able to manipulate his jaw back into place. (T p 26)17. Pena completed a Body Check/Verification form at the hospital to document his observations of R.S.’s injuries. Pena noted a dime -size scrape/bruise with raised welt on the center of his forehead at the hairline, bright red welts on his right cheek at the jaw, redness of the left cheek, a softball-size bruise on the left shoulder blade and pain, but no visible swelling of the left thigh. (T pp 29-31, Resp’s Exhibit 2)18. R.S. suffered serious injury. (T pp 20-21, 26, 28-31; Resp’s Exhibit 2)19. Pena had R.S. write a statement at the hospital. R. S. identified D.H. and T.H. as the juveniles who had assaulted him. (T pp 31-32)20. R.S. also told Pena that Petitioner told him he was going to let some boys come in if he didn’t stop making so much noise. (T pp 45, 199, 222, 390)21. Pena initiated a serious incident report regarding the injury to male juvenile R.S. (T p 28; Resp’s Exhibit 2)22. Stanley Melvin, Facility Director at Pitt Regional Detention Center, received the serious incident report from Pena, collected statements from juveniles R.S., D.H., and T.H., and from staff Pena, Lane and Moye and then sent it all to Michael Bryant, Director of Detention Services, at the DJJDP Central Office in Raleigh, North Carolina. (T pp 135, 139- 140,142,144,197, 387; Resp’s Exhibit 2)23. Melvin also filed a report of neglect with the Pitt County Department of Social Services, based on the allegations against Petitioner by juvenile R.S. (T pp 142-144, Resp’s Exhibits 2, 11, 12)24. On 11 January 2007 Melvin placed Petitioner on investigatory placement in accordance with customary practice when there has been an allegation of abuse or neglect. Investigatory placement is leave with pay until an investigation is completed. (T pp 146-147; Resp’s Exhibit 14) At the conference notifying Petitioner that he would be placed on investigatory placement, Melvin received a written statement from Petitioner. (T pp 148, 389;6 Resp’s Exhibit 13) Petitioner’s written statement made no mention of the fact that D.H. and T.H. were out of their rooms cleaning on the night of the incident. (T p 436; Resp’s Exhibit 13)25. DJJDP Investigator Linda Terry was assigned to conduct the internal investigation of the assault on R.S. (T pp 150, 230, 277)26. Investigator Terry interviewed Pena, Moye, Petitioner, Moore, and the juveniles. (T pp 277-279, 355; Resp’s Exhibits 4, 6, 7, 25)27. Petitioner told Terry that on 10 January 2007 the male juveniles were put in their rooms for bedtime at about 10:30. He said that the girls were on the other side of the building. Petitioner told Terry that “sometimes they intermingle, but on this night the girls were all on their side. Female staff always put the females in their rooms, and male staff put the males in their rooms.” All of the juveniles are locked in their rooms at bedtime. (T pp 284-285, 287, 370, 424, 486; Resp’s Exhibit 25)28. Petitioner told Terry that two male juveniles, D.H. and T.H., were not locked in their rooms at bedtime, but remained out in the facility cleaning up. Petitioner said that he locked male juvenile R.S. in his room at bedtime. (T pp 290-292)29. After the juveniles went to bed, Petitioner and Moye were the only staff working until the midnight shift reported. (T pp 288, 290)30. Petitioner told Terry that R.S. was loud not long after bedtime and he told R.S. he would take his book if he did not calm down. (T p 326)31. Petitioner told Terry that he knew that all of the other kids were upset with R.S. because he was promised a reward to be quiet. (T pp 333-334)32. Petitioner told Terry that he unlocked the door to the room where R.S. and his roommate were housed, as well as the door to another male juvenile’s room, for bathroom breaks. He said that none of the juveniles in either of those two rooms had requested a bathroom break. Juveniles D.H. and T.H. were in the day room close to the television. The day room is bordered by the male juveniles’ rooms. Petitioner told Terry that he left the boys’ side and went to the girls’ side to do room checks while the two doors were unlocked and D.H. and T.H. were in the day room. Petitioner told Terry that, if he was not mistaken, he thought Moye was in the control room. He said he was gone for four to six minutes. (T pp 296-308, 371; Resp’s Exhibit 1)33. Petitioner acknowledged to Terry that R.S. could have been assaulted when Petitioner went to the girls’ side, leaving the two doors unlocked and the two boys out cleaning. (T pp 326, 335-336, 370)34. Petitioner told Terry that he did not hear R.S. moaning when Pena arrived at work. He told Terry that he cannot hear and was working on getting a hearing aid. He later told Terry that he is not deaf and only has trouble hearing out of one ear. (T pp 319-320, 336)7 35. In his testimony at the hearing, Petitioner admitted that he unlocked room 1 and room 5 while D.H. and T.H. were in the day room and then went to the girls’ side, leaving the doors unlocked and D.H. and T.H. unsupervised. He was not sure of Moye’s location when he went to the girls’ side. (T pp 443-445)36. It is a known work rule that staff do not unlock a juvenile’s room to allow a juvenile to use the bathroom unless the juvenile knocks and requests a bathroom break. For staff safety, no more than one room should be unlocked and opened at a time to allow a juvenile to use the bathroom. If two juveniles are in one room, one must be seated on their bed before the other can be allowed out of the room, and only one at a time may leave the room. (T pp 39-41, 79-80, 165; Resp’s Exhibit 17)37. After Melvin reviewed the results of the investigation, he formed the opinion that Petitioner should be terminated and made that recommendation to Michael Bryant, Director of Detention Services. (T pp 219, 391)38. Bryant, along with several other DJJDP executive team members, reviewed the investigation, statements, incident report, and Melvin’s recommendation. They considered that Pena immediately heard R.S. crying, that the incident happened at a time of night when all juveniles should have been in their rooms, that Petitioner had opened two doors, left those doors unlocked, left D.H. and T.H. out of their rooms and unsupervised and went to the other wing, giving D.H. and T.H. the opportunity to enter R.S.’s room and assault him, and that R.S. was seriously injured. They agreed that dismissal was the appropriate action to take against Petitioner. (T pp 391-393)39. On 12 February 2007 Petitioner signed a written notice scheduling a pre- disciplinary conference. The letter informed Petitioner of the basis for Melvin’s recommendation of dismissal. (T pp 157-161; Resp’s Exhibit 15)40. On 13 February 2007 a pre-disciplinary conference was held. (T p 161)41. After considering Petitioner’s response at the pre-disciplinary conference, Melvin decided to continue to pursue dismissal. On 15 February 2007 Petitioner was given a letter notifying him of his dismissal for unacceptable personal conduct and grossly inefficient job performance. (T pp 166-171; Resp’s Exhibit 18)42. DJJDP policy YD/DC 6 requires that staff provide continuous supervision of juveniles and that at no time should they be left unsupervised. It also requires that male juveniles always be supervised by at least one male staff and female juveniles always be supervised by at least one female staff. (T pp 171-172; Resp’s Exhibit 19)43. DJJDP policy YD/DC 12.1 requires that staff provide ongoing supervision of juveniles to ensure a safe environment, that juveniles sleep at least eight hours per night, that staff supervise chores, and that male juveniles always be supervised by at least one male staff and female juveniles always be supervised by at least one female staff. (T pp 174-175; Resp’s Exhibit 20)8 44. Petitioner signed a statement of understanding of policies YD/DC 6 and 12.1 on 29 March 2005. (T pp 179-180; Resp’s Exhibit 21)45. After his dismissal Petitioner filed a grievance with Respondent and his disciplinary action was upheld by the hearing officer and the Secretary of the Department of Juvenile Justice and Delinquency Prevention. Petitioner was notified by letter of the final agency decision. (Resp’s Prehearing Statement)46. Another employee at Pitt Regional Detention Center had been dismissed for failing to supervise juveniles who escaped from the facility. He was reinstated because there was no documentation of his training on the relevant policies. No juveniles were injured, but the employee and another staff member sustained serious injury. (T pp 229-230) 47. Petitioner acknowledged on direct examination by Respondent that he previously received a documented counseling for neglecting to give three juveniles their medication. (T pp 449-450; Resp’s Exhibit 7) He also received a written warning for driving twenty-two miles in a state vehicle to several auto parts stores to purchase parts for his truck. (T p 451; Resp’s Exhibit 28)48. On cross examination by counsel for Petitioner, Petitioner denied any other previous discipline. (T p 452)49. On redirect examination by Respondent, Petitioner testified that he did not remember receiving a written warning for failing to follow the call-in policy and coming to work late. Petitioner signed the warning on 7 September 2000. (T pp 473-474; Resp’s Exhibit 29) Petitioner acknowledged that he also received a documented counseling for repeatedly failing to follow department policy for dress code. (T pp 476-477; Resp’s Exhibit 30)50. Petitioner testified on cross examination by counsel for Petitioner that he did all of the Morse Watchman room checks the night of the incident. (T pp 455, 466) He acknowledged that he told Investigator Terry that Moye did two of the room checks the night of the incident. (T p 457)51. On redirect examination, Petitioner denied that he lied to Investigator Terry, but claimed that he just “didn’t tell the complete truth.” (T pp 488-489)52. Petitioner acknowledged signing a document prior to his interview with Investigator Terry that informed him “the penalty for providing false or purposely misleading information may be dismissal.” (T pp 488-489; Resp’s Exhibit 31)53. Petitioner told Investigator Terry and testified on cross examination by counsel for Petitioner that he took books away from R.S. on the night of the incident to make him be quiet. (T pp 325-326, 462-463) In his initial written statement given to Director Melvin, Petitioner stated that he looked in on R.S. and he “never uttered a word” and that R.S. “wasn’t yelling or making any noises.” (T pp 470-471; Resp’s Exhibit 13)54. Petitioner testified on cross examination by counsel for Petitioner that the first time he was aware that his disciplinary action involved the failure to lock some doors was at9 the hearing that day. (T pp 468, 478-479) On redirect examination by Respondent, Petitioner acknowledged that his pre-disciplinary conference letter and his dismissal letter informed him that failing to secure the doors, leaving them unlocked, was part of the basis for the disciplinary action against him. (T pp 478-481; Resp’s Exhibits 15, 18)55. Petitioner was disciplined based on his admissions that he unlocked room 1 and room 5 while D.H. and T.H. were in the day room and then went to the girls’ side, leaving the doors unlocked and D.H. and T.H. unsupervised when he was not sure of Moye’s location. (T pp 443-445)56. Neither Petitioner nor Moye were disciplined for failing to hear R.S. moaning or failing to discover that he was seriously injured, for failing to lock D.H. and T.H. in their rooms at bedtime, for allowing juveniles D.H. and T.H. to be up past their bedtime or have a late night snack, for using or allowing use of another employee’s Morse Watchman identification number, or for failing to notify a supervisor of a policy violation. (T pp 399, 420-421)CONCLUSIONS OF LAW1. The parties are properly before the Office of Administrative Hearings and received proper notice of the hearing in this matter. This office has jurisdiction to hear the matter and to issue a decision to the State Personnel Commission which shall render a final agency decision.2. The Petitioner was a career state employee, as defined in N.C. Gen. Stat. § 126-1, et seq., and is subject to the State Personnel Act. North Carolina General Statute Section 126-35 provides that no career State employee subject to the State Personnel Act shall be discharged, suspended or demoted for disciplinary reasons, except for just cause. Although “just cause” is not defined in the statute, the words are to be accorded their ordinary meaning. Amanini v. Dept. 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).3. 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. Teague v. N.C. DOT, 177 N.C. App. 215, 628 S.E.2d 395, disc. rev. denied, 360 N.C. 581, 636 S.E.2d 199 (2006).4. There are two bases for the discipline or dismissal of employees under the statutory standard for “just cause” as set out in N.C.G.S. § 126-35. These two bases are: (1) discipline or dismissal imposed on the basis of unsatisfactory job performance, including grossly inefficient job performance, and (2) discipline or dismissal imposed on the basis of unacceptable personal conduct. See also 25 NCAC 1J .0604.5. Unacceptable Personal Conduct is conduct for which no reasonable person should expect to receive prior warning . . . or the willful violation of known or written work rules. 25 NCAC 1J 0614. Employees may be dismissed for a current incident of unacceptable personal conduct without any prior disciplinary action. 25 NCAC 1J 0608.10 6. Petitioner’s conduct on January 10, 2007 constituted a willful violation of Respondent’s policy YD/DC 6 and policy YD/DC 12.1, which require continuous supervision of juveniles.7. Respondent presented sufficient evidence that Petitioner failed to maintain continuous supervision of juveniles D.H. and T.H., who were not locked in their rooms, when he went to the girls’ side of the facility to conduct room checks, without being sure of Moye’s location.8. Respondent presented sufficient evidence that Petitioner failed to maintain continuous supervision of juvenile R.S. and his roommate, and the juvenile in Room 5 by unlocking their doors and leaving them unlocked when he went to the girls’ side of the facility to conduct room checks, without being sure of Moye’s location.9. Respondent presented sufficient evidence that Petitioner violated a known work rule by unlocking two rooms at the same time for bathroom breaks. 10. Respondent presented sufficient evidence that Petitioner violated a known work rule by opening a juvenile’s room for a bathroom break when the juvenile did not knock and request a bathroom break.11. Respondent has proven by a preponderance of the evidence that Petitioner opened two juveniles’ doors, left those doors unlocked, left D.H. and T.H. out of their rooms and unsupervised, and went to the girls’ side of the facility to conduct room checks, giving D.H. and T.H. the opportunity to enter R.S.’s room and assault him, and that R.S. was seriously injured. This conduct was in violation of known work rules and policy, was conduct for which no reasonable person should expect to receive prior warning, and constituted unacceptable personal conduct. 12. 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 an employee(s) or to members of the public or to a person(s) over whom the employee has responsibility. 25 NCAC 01J 0614. Employees may be dismissed on the basis of a current incident of grossly inefficient job performance without any prior disciplinary action. 25 NCAC 01J .0606. 13. Respondent’s evidence sufficiently showed that Petitioner’s primary job responsibility was to maintain the safety and security of the juveniles and the facility. 14. Respondent presented sufficient evidence to show that R.S. was a person over whom Petitioner had responsibility.15. Respondent’s evidence sufficiently showed that R.S. suffered serious bodily injury as a result of Petitioner’s failure to satisfactorily perform job requirements.11 16. Petitioner’s failure to satisfactorily perform job requirements and Respondent’s policy and known work rules was grossly inefficient job performance because it resulted in the “creation of the potential for death or serious bodily injury to ... a person over whom the employee had responsibility.” Specifically, Respondent presented sufficient evidence that Petitioner failed to maintain the safety and security of the juveniles. This resulted in juveniles D.H. and T.H. inflicting serious bodily injury on juvenile R.S., constituting grossly inefficient job performance.17. Petitioner’s credibility was significantly undermined by his failure to tell the truth to Investigator Terry after signing a statement acknowledging that there was a penalty for providing false information and that such penalty may be grounds for dismissal, and then still failing to acknowledge in his testimony at the hearing that he had not told the truth. Due deference is given to the Administrative Law Judge’s evaluation of the credibility of witnesses in a contested case hearing. See N.C. Gen Stat. § 150B-36(b) (2007); Enoch v. Alamance County Dept. of Soc. Servs., 164 N.C. App. 233, 249, 595 S.E.2d 744, 756 (2004). 18. Respondent met its burden to show by a preponderance of the evidence that it had just cause to dismiss Petitioner for unacceptable personal conduct and grossly inefficient job performance.DECISIONBased upon the foregoing Findings of Fact and Conclusions of Law, it has been determined that Respondent did have just cause to terminate Petitioner and the State Personnel Commission should affirm Respondent’s decision to dismiss Petitioner from employment for unacceptable personal conduct and grossly inefficient job performance.NOTICEThe North Carolina State Personnel Commission will make the Final Decision in this contested case. North Carolina General Statute § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.Pursuant to North Carolina General Statute § 150B-36(a), before the 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. North Carolina General Statute § 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina 27699-6714.This the 17th day of February, 2009.12 ______Fred G. Morrison Jr Senior Administrative Law Judge13

State of North Carolina s52

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