STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
08 OSP 3661
COUNTY OF WAKE
Darryll Williams
Petitioner
vs.
North Carolina Department of Health and
Human Services, Murdoch Developmental
Center
Respondent
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)
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DECISION
This matter came before Temporary Administrative Law Judge Eugene J. Cella on May
26 and 27, 2009 in Raleigh, North Carolina.
APPEARANCES
For Petitioner:
Michael C. Byrne
Wachovia Capital Center
Suite 1130
150 Fayetteville Street
Raleigh, NC 27601
For Respondent:
Sarah Buthe
Assistant Attorney General
N.C. Department of Justice
Administration Building
300 Veazey Road
Butner, NC 27509
Dorothy Powers
Special Deputy Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602
WITNESSES
For Respondent:
Mary Elizabeth (“Betsy”) Pippin
John Jones
Kristy Garcia
Wanda Williams-Pettiford
Maureen Crews
For Petitioner:
Darryll Williams
ISSUE
Whether Respondent had just cause to dismiss Petitioner from his employment as a Youth
Program Assistant I at Murdoch Developmental Center for unacceptable personal conduct
consisting of:
1)
Failure to remain alert and attentive while providing supervision to
resident, Jerry on September 9, 2008;
2)
Failure to cooperate with management and an advocacy investigation by
refusing to sign the statement he provided; and
3)
The inappropriate and disruptive manner in which he left the interview that
resulted in damage to state property?
EXHIBITS
Exhibits admitted on behalf of Respondent (“R Ex #”):
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
Petition for a Contested Case Hearing
Jerry’s Behavioral Intervention Program
Employee Training Attendance Report
Staff Training Record
**********
A B C Data Sheet
A B C Data Sheets
John Jones’ Statement
Darryll Williams’ Statement
Kristi Garcia’s Statement
Wanda Williams-Pettiford’s Statement
September 10, 2008 Placement on Investigation Letter
September 23, 2008 Pre-disciplinary Conference Letter
September 25, 2008 Dismissal Letter
Abuse, Neglect and Exploitation Policy, APM #: 2.1.8.3
Investigation Policy, APM #: 2.1.8.4
Advocacy Report
State Personnel Policies – Discipline/Appeals/Grievances, § 7
Darryll Williams September 23, 2008 Written Response at Pre-disciplinary
Conference
Exhibits admitted on behalf of Petitioner (“P Ex #”):
1.
2.
3.
4.
5.
Dismissal Letter
Petition
Petitioner’s Witness Statement
Policy: Investigation of Rights Violations
Advocacy Services Report
2
6.
7.
8.
9.
10.
Policy: Abuse, Neglect, and Exploitation
Behavior Intervention Program, Jerry R.
Wanda Williams-Pettiford Written Statement
John Jones’ Written Statement
Kristi Garcia’s Written Statement
FINDINGS OF FACT
BASED UPON careful consideration of the sworn testimony of the witnesses presented at
the hearing, the documents, and exhibits received and admitted into evidence, and the entire
record in this proceeding, the undersigned Administrative Law Judge (“ALJ”) makes the
following Findings of Fact. In making these Findings of Fact, the ALJ 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 witnesses, 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.
1.
The parties received notice of the scheduled hearing at least 15 days in advance of the
hearing.
2.
On December 23, 2008, through counsel, Petitioner filed a Petition for A Contested Case
Hearing with the Office of Administrative Hearings (“OAH”) claiming he was discharged without
just cause from his position as a Youth Program Assistant I on September 25, 2008. (R Ex 1; P Ex
2)
3.
At all times material, Petitioner Darryll Williams (“Petitioner”) was a career state
employee and was subject to the provisions of the State Personnel Act.
4.
At all times material, Petitioner was employed at Murdoch Developmental Center
(“Murdoch” or “Murdoch Center”) as a Youth Program Assistant I (“YPA I”).
5.
Petitioner was dismissed from his job as a YPA I at Murdoch Center effective September
25, 2008 for occurrences that occurred on September 9, 2008 in the Meadowview Cottage.
Specifically, Respondent alleges that:
1.
2.
3.
Petitioner failed to remain alert and attentive while providing supervision to
Jerry R. on September 9, 2008;
Petitioner failed to cooperate with a Management and Advocacy
Investigation when he refused to sign the statement he provided; and
The inappropriate and disruptive manner in which Petitioner left the
interview which resulted in damage to State property. (R Ex 12, 13, 14; P
Ex 1)
6.
Respondent further contends that Petitioner’s actions are unacceptable personal conduct
constituting a willful violation of known work rules, conduct unbecoming a state employee, and
3
conduct that no reasonable person should expect to receive prior warning. (R Ex 12, 13, 14; P
Ex 1)
7.
Murdoch Developmental Center (“Murdoch”) is an intermediate care facility for mental
retardation (“ICF/MR”) or developmental disabilities. It is a certified residential facility. It is one
of four such facilities in the state of North Carolina and serves the central region of the State. It is
home to approximately 550 individuals that have diagnoses of mental retardation or
developmental disabilities, and who live and receive treatment there. Campus-wide, the programs
take individuals from age 6 (and sometimes as young as age 4), through geriatric clients in their
90s. (T pp 21, 271-272)
8.
The Meadowview Cottage has two very different units. There is the Behaviorally
Advanced Residential Treatment (“BART”) unit, which has 12 beds and is all male. The ages
currently of the residents in the BART unit are 20 to 38. On the other end of Meadowview is the
STARS unit, which is a group of adolescents who range in age from 12 to 18 that are dual
diagnosed with some form of mental retardation or developmental disability and mental health.
There are 18 beds on that unit. (T p 273)
9.
The Behaviorally Advanced Residential Treatment (“BART”) Unit is located in the
Meadowview Cottage. It is designed to serve males with mild mental retardation or some other
developmental disability. It also serve males that have serious aberrant behavior, individuals that
can't be served in any other community capacity, individuals that have criminal involvement, and
individuals that are extremely dangerous that can't be served anywhere else. It serves the entire
state of North Carolina and is a locked unit. (T pp 26, 78)
10.
Petitioner has graduated from high school and has attended Chowan Junior College,
Thomas Nelson Community College and North Carolina Central University. (T pp 167-168)
11.
Petitioner has worked in State government many years and has held such positions as
health care technician, youth program assistant, and correctional officer trainee. Petitioner has
worked at John Umstead Hospital in the Rehab and Adolescent units, the Whitaker School, the
Murdoch Center and the Department of Correction’s Polk Youth Institution. In all of these
positions, Petitioner has had the responsibility to look out for the patients, residents, and/or
inmates’ safety and well being, as well as the safety and well being for himself and other staff and
visitors. Petitioner has worked in the patient/resident/inmate field for 18 years. (T pp 168, 174176)
12.
At the time of his dismissal, Petitioner was a Youth Programming Assistant I at Murdoch
in the Meadowview Cottage. He began working at Murdoch in March, 2006. He had been there
approximately two and a half years at the time of his dismissal. Petitioner was primarily in charge
of supervising Murdoch’s resident, Jerry. Petitioner worked with Jerry most or all of the time that
Petitioner was at work. His responsibilities were providing direct care to Jerry, assisting with
Jerry’s daily living skills, goal training, and vocational assistance if needed. He was responsible
for basic supervision of Jerry. This included implementing and monitoring Jerry’s programming,
and to intervention should a behavioral issue arise. Petitioner was assigned to carry out duties
throughout the day with Jerry, to ensure that whatever program requirements Jerry had would be
met and health care needs taken care of. (T pp 79, 105, 176-178, 278)
4
13.
Petitioner has had substantial training on how to look out for the safety of himself and
others in confined residential settings, including but not limited to, training in: CPR, first aid,
North Carolina Interventions, safety awareness, emergency operations planned training,
individual rights, rules for interaction, accidental injury, body mechanics, behavior management,
and behavior intervention. These courses are repeated at least yearly. All the training that
Petitioner had relates to his dealings with Jerry because they are all required as a Youth Program
Assistant I position. (T pp 175-176, 275, 281; R Ex 4)
14.
Mary Elizabeth (“Betsy”) Stallings Pippin (“Ms. Pippin”) is employed at Murdoch as a
Staff Psychologist II. In 1998, she earned a Bachelor of Arts in Psychology degree from the
University of North Carolina at Wilmington. She earned a Master’s degree in 2003 from Auburn
University in Auburn, Alabama, with a major in psychology and a concentration in applied
behavior analysis with a specialization in developmental disabilities. She is both a licensed
psychological associate and a board certified behavior analyst. (T p 20)
15.
Ms. Pippin has been a Staff Psychologist II at Murdoch for six years. As a Staff
Psychologist II, Ms. Pippin does intellectual and adaptive assessments. She makes
recommendations to the interdisciplinary team for behavior management strategies. She writes
and develops behavior intervention programs for the individuals that live at Murdoch, and
monitors their effectiveness and their behavior. She does staff training and makes general
recommendations for the residents’ everyday functioning to the interdisciplinary team. Because of
the interdisciplinary approach, at the Murdoch Center, all treatment team members collaborate as
to service planning for the individuals that live at Murdoch. (T pp 21-22, 25)
16.
John Jones (“Mr. Jones”) is employed at Murdoch as a Youth Program Assistant (“YPA”)
III. He is the second shift supervisor at Meadowview Cottage and has been Petitioner’s direct
supervisor for approximately 3 years. He has worked at Murdoch 31 years and has been a YPA
supervisor for 13 years. (T pp 76- 78)
17.
Kristy Garcia (“Ms. Garcia”) has a Bachelor’s of Science degree in Therapeutic
Recreation. She is employed at Murdoch as a Qualified Mental Health Professional (“QMHP”)
and is the Behaviorally Advanced Residential Treatment (“BART”) Unit Manager at the
Meadowview Cottage. She has worked at Murdoch for 9 years. Her duties as the unit manager
consist of monitoring the programming of 12 individuals, and supervising approximately 30 staff.
She also assigns primary and secondary staff to individuals living at Murdoch. She takes into
account the staff rapport, and the staff personality, matching those staff members qualities with
the individual to be served in order to best meet the individual's needs. (T pp 67, 102-103)
18.
Ms. Garcia helped recruit Petitioner to Murdoch. She met him and thought he would be a
good addition to the staff at Meadowview Cottage. Petitioner filled out an application,
Ms. Garcia interviewed him, and hired him. She became his supervisor when she hired him and
directly supervised him for a couple of years. (T pp 104-105)
19.
Wanda Williams-Pettiford (“Ms. Pettiford”) is the Director of Meadowview Cottage at
Murdoch. She has been at Murdoch since 2005, when 18 beds and 54 positions were
administratively moved from the Whitaker School to the Murdoch Center. As Director of
5
Meadowview Cottage, she is directly responsible for the everyday operation of the entire cottage,
which is comprised of approximately 90 staff and 30 beds. Previously, Ms. Pettiford worked with
the guardian ad litem program for eight and a half years as program supervisor and then as district
administrator from 1993 until 2000. She then went to Methodist Home for Children in Raleigh
where she recruited, licensed, and trained therapeutic foster parents. She left the Health and
Human Services field in 2000 and returned in the field in February, 2005 at Whitaker School as a
qualified mental health professional (“QMHP”). Murdoch Center is located down the street from
Whitaker School. Murdoch Center and Whitaker School are both divisions under the auspices of
the Department of Health and Human Services. (T pp 269- 272)
20.
Ms. Pettiford and Petitioner worked at the Whitaker School at the same time and they both
transferred to Murdoch at the same time. (T pp 272-273)
21.
At all times material to this contested case, Ms. Pettiford was Ms. Garcia’s direct
supervisor. Ms. Garcia directly supervised John Jones, who in turn directly supervised Petitioner.
(T pp 78, 82, 107, 274)
22.
Maureen Crews (“Ms. Crews”) is employed as an Advocate II, the Chief Advocate at
Murdoch Center. She has worked at Murdoch for 24 years. She supervises four Advocate I’s and
an Office Assistant IV. (T pp 345-346)
23.
Behavior intervention programs (“BIP’s”) are written programs that are designed to
decrease the inappropriate behaviors that individuals display, and to increase appropriate
behaviors. BIPs provide intervention guidelines to staff and notify staff of matters that staff
should know about the individual that are relevant to providing care to that individual. The BIP
lists supervision requirements to ensure safety for the individual the BIP is written for, for other
individuals that live at Murdoch, and for staff. It is a general plan to address inappropriate
behaviors. (T pp 34-35)
24.
Jerry resides in the Behaviorally Advanced Residential Treatment (“BART”) Unit at
Murdoch. He is potentially the most dangerous resident at Murdoch. He presents with a very
unique form of physical aggression. His physical aggression occurs in a very planned, calculated
fashion. It is potentially life threatening because you do not see it coming. His cognitive ability is
high enough that he can look for opportunity to engage in aggression. Because of this, he is very
dangerous. He stands out from the general population at Murdoch as a whole. He has the ability
to engage in injurious behavior that would potentially kill someone. (T pp 26- 27, 105)
25.
Jerry’s BIP includes procedures for addressing the target behaviors of physical aggression,
property destruction, and inappropriate verbal behaviors. (R Ex 2, P Ex. 1)
26.
Jerry’s intervention guide in his BIP indicates that he displays planned aggressive
behavior toward select individuals including peers and staff. His aggressive behavior often occurs
outside of any obvious trigger and therefore can be difficult to predict. In the past he has selected
individuals to aggress towards based on race. He primarily targets individuals that are white and
individuals that are socially skillful. He also targets individuals for the occurrence of perceived
social slights (for example, someone not speaking to Jerry before speaking to one of his peers,
someone who cancels a meeting, et cetera). Because of the danger associated with Jerry looking
6
for opportunities to aggress, strict adherence to Jerry's supervision schedule is required at all
times. (T pp 37, 105-107; R Ex 2)
27.
As a Staff Psychologist II, Ms. Pippin, along with other appropriate staff, write the BIPs
for Murdoch’s residents. Pippin was involved in writing Jerry’s BIP. Jerry’s BIP provided that
Jerry will be provided supervision as specified within the High Alert Supervision Protocol
(“HASP”) until he is asleep. (T pp 35-36; 181-182; R Ex 2; P Ex 1)
28.
In addition to Jerry’s specific BIP, the entire High Alert Supervision Protocol (“HASP”)
was written specifically for Jerry to meet his needs and specifically for the staff monitoring Jerry
to be highly alert because Jerry looks for opportunity to aggress. Jerry has the ability to engage in
life threatening behavior, and he's always looking for an opportunity to do so. Jerry is the only
patient on the Murdoch campus with the HASP protocol. The HASP is reserved for individuals
who display high intensity damaging behaviors that occur with minimal warning and/or in a
planned calculated matter. Strict adherence to the HASP at all times is essential for maintaining
safety. (T pp 37-38, 42, 182, 274, 476-468, 488; R Ex 2; P Ex 1)
29.
The justification for putting the HASP in place for Jerry was that he engages in very
planned, calculated, potentially life threatening behavior and that it is necessary for staff to be
highly alert and knowledgeable of the kinds of things that he is capable of doing. This protocol
was developed for only Jerry, who has potentially life threatening behavior. A staff member
being inattentive would be a violation of that protocol. (T pp 37-38, 49-50, 66)
30.
Murdoch ensures that staff are aware of all the information concerning residents through
staff training. Training includes a formalized sit down in-service training where staff are
instructed and taught pertinent information. Training also includes informal training, by informing
staff that something has changed as to an individual. The nature of the training depends on the
nature of the program. (T p 47)
31.
There was specialized specific training regarding Jerry. Due to the complexity of Jerry’s
HASP, at the time Jerry’s HASP was introduced, Ms. Pippin conducted an in-service training
with all the staff who would be working with Jerry. Ms. Pippin taught staff what the HASP
protocol was, why it was developed, and the justification for needing to put it in place. The
logistics of the supervision procedures was also covered. Petitioner attended this in-service
training and Petitioner was aware of the reasons for Jerry’s BIP and HASP. (T pp 47-50, 179180; R Ex 2, 3)
32.
Petitioner was aware that the staff who create the BIPs look through the residents' charts
to determine how the residents are doing. Petitioner was also aware that his noted behaviors
about Jerry in the chart influenced Jerry’s BIP authors. (T p 179)
33.
It would be a violation of the HASP protocol and Jerry's BIP if the staff that was assigned
to him was anything other than fully alert while monitoring him. If staff assigned to provide the
HASP supervision to Jerry were less than attentive for even only ten seconds, it would violate
Jerry's BIP. (T pp 42, 45, 82, 110)
7
34.
Staff members who work with Jerry, including Petitioner have access to his BIP. Staff
also have access to the records wherein they write their monthly progress notes. In addition to this
information, relevant pieces of the BIP are pulled out and put that into a summary format, which
is made available to staff. The summary is kept in the individual's unit book, where all the
documentation occurs on a day-to-day basis. Staff, including Petitioner, have access to the
summary at multiple times daily. Also, there are various copies of the summary that are kept
throughout the division, including the tech station, and the youth program assistant office.
Petitioner was privy to Jerry’s BIP and also to Jerry’s more plain-language BIP summaries.
(T pp 45-47, 179, 467-468; R Ex 2)
35.
Petitioner knew that it was mandatory that he be familiar with and follow Jerry’s BIP.
(T p 180)
36.
Jerry is the most dangerous individual at Murdoch Center. Jerry plots and plans those he
wants to aggress towards. He targets people. He waits for the most prime opportunity to try and
hurt other people. (T pp 105-106)
37.
Petitioner has personally observed Jerry act aggressively. (T p 487)
38.
On June 15, 2006, while in the dining room during dinner, Jerry attacked a peer. This was
documented by Petitioner. (T pp 57-58, 189; R Ex 7)
39.
On July 11, 2006, while on the softball field, Jerry attacked a peer from behind. This was
documented by Petitioner. (T pp 57-58, 189-190; R Ex 7)
40.
On April 5, 2007 there was an incident that gives a concrete example of why Jerry is so
dangerous and how he behaves in a very planned and calculated fashion; while in the day room
during unstructured leisure, Jerry was offering jelly beans to his peers. It was a way for him to
gain proximity to a target. While offering the peer the jelly beans, he got close to that peer and
then aggressed against that peer. (T p 34)
41.
On June 26, 2007, Jerry threatened staff in the day room. This was documented by
Petitioner. (T pp 59,190; R Ex 7)
42.
On July 19, 2007, while in the day room, Jerry threatened staff and then attempted to
throw a chair at staff. This was documented by Petitioner. (T pp 60, 191-192; R Ex 7)
43.
On July 2, 2008, while in the day room during unstructured leisure, Jerry hit one of his
peers. This was documented by Petitioner. (T pp 60, 192; R Ex 7)
44.
Petitioner was aware that Jerry displayed planned aggressive behavior toward select peers
and staff. (T p 185; R Ex 2)
45.
187)
Petitioner was aware that Jerry had assaulted his peer, JP, ten times or more. (T pp 186-
46.
Jerry experiences hallucinations. (T pp 475, 520)
8
47.
Jerry is restricted from sharing a bedroom with others. (T p 182; R Ex 2; P Ex 1)
48.
Staff providing supervision of Jerry, including Petitioner, do not have supervision
responsibilities for any other individuals. (T p 183; R Ex 2)
49.
Petitioner has been Jerry’s primary staff the majority of the 2 ½ years that Petitioner
worked at Murdoch’s Meadowview Cottage. As such, Petitioner worked with Jerry most or all
of the time Petitioner was at work. Jerry was Petitioner’s only client to look after from July 2007
through the time he was terminated. (T pp 178, 183)
50.
Petitioner was aware that because of the danger associated with Jerry looking for
opportunities to aggress, strict adherence to Jerry’s supervision protocol is required at all times.
(T p 186; R Ex 2)
51.
Petitioner was trained that being anything less than fully alert while supervising Jerry
could be highly dangerous to Jerry, to Petitioner, himself, and to others at Murdoch. Petitioner
was clearly instructed that being anything less than attentive while he was on the job supervising
Jerry would violate Jerry's BIP. (T pp 60- 61)
52.
Petitioner is aware that staff providing supervision to Jerry under the HASP should not
enter a bedroom or a bathroom or any other isolated area occupied by Jerry without a second staff
person present. The use of the two way radio is prohibited; there must be a second person
present. (T pp 182-183; R Ex 2)
53.
Petitioner was aware, as Jerry’s BIP indicates, that Jerry has demonstrated that he may use
toxic chemicals inappropriately- including throwing detergent in the face of others. (T p 186;
R Ex 2)
54.
On September 9, 2008, Petitioner was Jerry’s primary caretaker. Petitioner came to work
at his normal time of 2:30 p.m. At this time Jerry was on a high alert protocol, which meant that
he was one-on-one supervision, and a staff person was assigned to be with him at all times. (T pp
79-80, 179, 466, 472-473)
55.
On September 9, 2008, Petitioner’s immediate supervisor, John Jones, approached the
BART unit from the hallway and walked through a door that leads to the unit area. The tech
station has windows that allow you to see through into the day room area. As Mr. Jones walked
around, he could see Jerry and the Petitioner through the window in one of the day rooms.
Mr. Jones noticed that Petitioner’s head was lowered. Mr. Jones didn't know if Petitioner was
reading something, or saying something to Jerry. As Mr. Jones walked around to the day room
area, he went around to the right side and went into the tech station, where he could see both sides
of the areas back there. He looked over there, and Petitioner’s head was slightly lowered.
Mr. Jones glanced at Ms. Kristi Garcia who was on the other side. Mr. Jones asked Ms. Garcia if
she could take a look to see if she saw the same thing. Ms. Garcia motioned to hold on a minute.
Mr. Jones and Ms. Garcia walked over to the door of the day room adjacent to where Petitioner
and Jerry were. The individuals in the other day room were playing foosball. Ms. Garcia and
Mr. Jones stood about 5 to 10 feet from where the door was separating the two day room areas.
9
Ms. Garcia walked into the area. That was all that Mr. Jones knew of that incident at that moment.
Mr. Jones remained in the other day room with the residents playing foosball until Ms. Garcia,
who took over monitoring Jerry, asked him to relieve her. (T pp 80-83)
56.
Mr. Jones asked Ms. Garcia to assess the situation of Petitioner and Jerry because if
Petitioner was nodding, he was not carrying out Jerry's protocol and program to be fully aware
with him. Mr. Jones’ job responsibilities include making sure the individuals on the unit are
taken care of. If Petitioner was not supervising correctly, it is Mr. Jones’ job to respond to the
situation and report it to his supervisor. It is normal procedure at Murdoch that if an employee has
concern about another employee not fulfilling their duties, that employee would notify his
supervisor about that. (T pp 82, 91)
57.
Mr. Jones estimates that it took two to three minutes from when he first saw Petitioner
with his head lowered and when Ms. Garcia walked over. (T p 83)
58
On September 9, 2008, Ms. Garcia was in the right side day room talking to another
individual, and saw Mr. Jones in the tech station. She went to the door that has a clear plexiglass
panel and looked in there and saw Petitioner nodding his head twice to the right and his eyes were
closed. Petitioner’s head was down, and then it went to the right, came up a little bit, and went to
the right again. Petitioner then opened his eyes and raised his head. As Ms. Garcia proceeded to
open the door to the day room, she told Petitioner to take a break. Petitioner said, "For what?"
Ms. Garcia said, "Because you were drowsy and not alert." Petitioner said, "Where do you want
me to take a break to?" Ms. Garcia said, "I don't care. Just leave and walk around." Then
Petitioner left the room. (T pp 107-109)
59.
Ms. Garcia estimates that approximately 40 to 45 seconds passsed between the time she
first observed Petitioner with his head nodding and his eyes closed and when she opened the door
to the day room and Petitioner raised his head and opened his eyes. (T pp 117-118)
60.
When Ms. Garcia told Petitioner to take a break, she assumed Jerry’s supervision for a
very brief time. During the time Ms. Garcia was alone with Jerry in the day room, Mr. Jones was
standing at the door that separates the two day rooms. Mr. Jones could see what was going on in
the other day room where Ms. Garcia and Jerry were because the door between the day rooms has
a glass window. A person can also hear things from the adjacent day room when they are
standing by the door. During this time, Ms. Garcia was approximately 12 feet away from
Mr. Jones and the other staff in the adjacent day room. Ms. Garcia could see and hear the other
males in the adjacent day room. John Jones and other male staff were visible to Ms. Garcia
through a window between the 2 day rooms and she could hear them. Mr. Jones and the other
staff were in hearing distance and if Ms. Garcia needed assistance, she would have yelled for
help. Ms. Garcia provided supervision Jerry for a very brief time; a couple, five or ten minutes
when she asked Mr. Jones to take over for her. (T pp 95-98, 100-101, 117-120, 153-154, 156162)
61.
Jerry’s BIP provides that “[f]emale staff may provide supervision to Jerry, but a male staff
person must always be present.” (T pp 468-469, 526-527; R Ex 2, pages 2, 9; P Ex 7, page 9)
10
62.
Petitioner contends that the above statement requires that a male staff member must be
present in the room with Jerry and the female staff member. Petitioner also contends that
Ms. Garcia was in violation of Jerry’s BIP when she was alone with Jerry in the day room after
she told Petitioner to take a break and that Ms. Garcia created an unsafe situation. (T pp 468-469,
489, 526-527; R Ex 2, pages 2, 9; P Ex 7, page 9)
63.
Ms. Pippin, who authored Jerry’s BIP, testified that when she used the term "present" in
Jerry's BIP, it meant that somebody could see Jerry. It did not necessarily mean present in the
exact same room. If a female was providing Jerry supervision in a room by herself and there was
a male in another room, that would not be a violation BIP because the male would be within
hearing distance. Petitioner testified that he disagreed with Ms. Pippin’s interpretation of
“present.” (T pp 39-40, 70- 73, 526-529, 546)
64.
Mr. Jones testified that a male staff member must be “in the area” when a female staff
member is supervising Jerry. (T p 95)
65.
Mr. Jones was “present” when Ms. Garcia was monitoring Jerry in the day room. (T pp
95-98, 100-101)
66.
Ms. Garcia also confirmed that Jerry’s BIP does not require that secondary staff be in the
same room. John Jones being in the adjacent day room with other male staff while Ms. Garcia
was monitoring Jerry met the requirements of Jerry’s BIP. (T pp 155-157, 162)
67.
Jerry has never targeted a female, acted out or aggressed towards a female. (T pp 73, 529)
68.
Petitioner’s contention that a female can never be alone with Jerry and that Ms. Garcia
violated Jerry’s BIP is not consistent with the credible evidence in this case. Ms. Pippin, the
author of Jerry’s BIP, Mr. Jones, Petitioner’s direct supervisor, and Ms. Garcia, Mr. Jones’ direct
supervisor, all testified that a female can monitor Jerry alone as long as other male staff can be
seen and can hear the female if assistance is needed. (T pp 39-40; 70- 73, 95, 155-157, 162)
69.
Jerry’s HASP dictates that the person that's providing Jerry's supervision should have no
other responsibilities. They should not be providing supervision to other individuals because Jerry
requires such high alert. The staff providing the supervision should be within arm's reach of Jerry,
but there are certain times when that proximity can be lessened. If Jerry is in a room by himself
and there are no other individuals present, excluding the staff providing the supervision, then he
can be served with visual supervision, close proximity. This means that staff are in the same
room with Jerry, and they are putting eyes on Jerry or would need to be able to put eyes on Jerry
at any given time. There are also times when staff needs to re-increase that close proximity to
Jerry. For example, if Jerry and his assigned staff were in a room by themselves. The staff is
providing Jerry with the high alert supervision, but can go across the room and keep eyes on him.
However, if another individual walked in, the staff would need to increase his proximity to be
able to reach out and touch Jerry. (T pp 39-40, 96-97, 106-107, 162, 527; R Ex 2, last page)
70.
Ms. Garcia asked Mr. Jones to relieve her from monitoring Jerry because she wanted to
report that Petitioner was sleeping while he was monitoring Jerry to her supervisor, Wanda
Pettiford, Division Director the Meadowview Cottage. Ms. Garcia also wanted to confirm that
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Advocacy needed to be notified because Petitioner’s behavior constituted neglect according to the
policies, in that he was not properly implementing Jerry’s behavior plan. (T pp 120-121)
71.
Petitioner was allowed to return to supervising Jerry after he took a break because the
allegation of him not being alert had not yet been proven and he was alert after he took a break.
Further, Petitioner was not alone with Jerry. Petitioner and Jerry were in sight and an earshot of
male staff in the adjacent day room. (T pp 136, 164)
72.
Murdoch has an Abuse, Neglect and Exploitation policy. It provides in pertinent part:
“Neglect is any situation in which staff do not carry out their duties or
responsibilities deemed necessary to maintain the physical health, safety and well
being of a person who lives at Murdoch Center.” It further provides: “Neglect
includes but is not limited to the following examples:
A.
E.
Failure to implement programs as designed by the Interdisciplinary
Treatment . . .
Failure to appropriately monitor the individuals (i.e., leaving individuals
unattended in the bathtub/shower, staff sleeping, etc.)” (T pp 350- 353;
R Ex 15, page 3)
73.
Ms. Crews, the Chief Advocate at Murdoch, has the responsibility of making sure that the
Abuse, Neglect and Exploitation policy is updated. She updated the policy as of May 2007.
(T pp 351)
74.
The purpose of the Abuse, Neglect, and Exploitation policy is to ensure that staff are
aware of their responsibilities in regards to making sure people's rights are not violated. It also
informs staff regarding statutes pertaining to abuse, neglect, and exploitation. (T p 352; R Ex 15)
75.
Petitioner that date was “interviewed” about the “sleeping or nodding” allegation by
Respondent’s Patient Advocate, Maureen Crews. Garcia was present at this interview.
76.
Petitioner was asked to provide a written statement in response to the allegation that he
was “sleeping or nodding” while supervising the patient. (T 149) This, by Garcia’s admission,
was the only allegation made against him at that time. (T 149). This was also Petitioner’s
testimony. (T pp 491-492)
77.
Petitioner wrote a statement as follows: “Was not [a]sleep or nodding.” Petition Exhibit 3,
Respondent Exhibit 9.
78.
Garcia testified that this statement, while short, refuted the allegations made against
Petitioner. (T pp 149-150)
79.
Petitioner did not sign his written statement. (T p 150)
80.
The relevant Murdoch Center policy requires staff involved in an investigation of abuse or
neglect to be “truthful and forthright.” (T p 356)
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81.
The relevant policy also requires staff to provide a “confidential written statement” to the
advocate involved in the investigation. Id., Respondent Exhibit 15-16. However, nowhere in the
policy is there a requirement that the staff sign the statement after providing it, nor does the policy
require that such statements have to be “detailed” as suggested by Respondent. (T pp 408, 409)
82.
Nor does the form used for the statements (in general practice) state that a signature is
required. (T p 408) The form does reference a “detailed” statement, but such is not a policy
requirement, nor is use of the form concerned (T p 430), nor does the form or the policy inform
staff that they would face disciplinary action for not writing a “detailed” statement. (T p 429) In
fact, Respondent did not make use of the form in obtaining a statement from another staff
member, Wanda Williams-Pettiford. (T p 430)
83.
Crews gave Petitioner the option of adding additional information to his statement, and
Petitioner declined. (T p 417) Crews did not say that she directed Petitioner to provide additional
information and he refused, nor does her report so state. (T p 417)
84.
Neither Crews nor Garcia told Petitioner that his statement was incomplete, nor did they
point out any details that Petitioner was required to include. (T pp 493, 548)
85.
Neither Crews nor Garcia explained to Petitioner at the time he wrote his statement that
Petitioner was violating any rule or policy by not signing his statement. (T p 495) It was likewise
not Petitioner’s understanding at the time that he was required to sign his statement in addition to
providing it, (T p 495), nor as noted do Respondent’s policies state that a signature is required.
86.
Ms. Crews is not Petitioner’s supervisor. (T p 532)
87.
Respondent did not allege in its dismissal letter or at the hearing that Petitioner was
insubordinate in failing to add additional details to his written statement. Petitioner’s Exhibit 1,
Respondent’s Exhibit 14 (as redacted)
88.
The Petitioner left the building quickly by existing through the front door and out to his
car in the parking lot.
89.
Ms. Pettiford was in her office near the front door. She did not see the Petitioner go
through the door or see him break it. (T p 285)
90.
Ms. Pettiford did hear a loud “pop” or bang. (T p 285)
91.
it.
There was no evidence as to the condition of the door prior to Petitioner existing through
92.
No other witness testified that they saw Petitioner break the door, nor did they say that
Petitioner made statements indicating any intent to break the door. (T pp 157-158)
93.
Petitioner testified that he did not intend to break the door, which was the second closed
door he had passed through. Jones testified that the door could still be locked. (T p 104)
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94.
Ms. Pettiford testified that she saw the Petitioner leave the premises very quickly but
could not estimate the speed. (T pp 287-288)
CONCLUSIONS OF LAW
1.
The Office of Administrative Hearings has jurisdiction over the parties and the subject
matter pursuant to Chapters 126 and 150B of the North Carolina General Statutes and has the
authority to issue a Decision to the State Personnel Commission (“SPC”), which shall make the
final decision. To the extent that the Findings of Fact contain Conclusions of Law, or that the
Conclusions of Law contain Findings of Fact, they should be so considered without regard to the
given labels.
2.
The parties have been given proper notice of the hearing. At the time of his discharge,
Petitioner was a career State employee subject to the provisions of the State Personnel Act,
N.C.G.S. 126-1 et seq. Petitioner, therefore, could only “be warned, demoted, suspended or
dismissed by” Respondent for just cause.” N.C.G.S. 126-35 (a); 25 NCAC 01J .0604(a).
3.
Pursuant to N.C. Gen. Stat. § 126-35(d)(2005) and N.C. Gen. Stat. § 150B-29(a),
Respondent has the burden of proof by a preponderance of the evidence on the issue of whether it
had just cause to dismiss Petitioner for unacceptable personal conduct.
4.
Petitioner stipulated that Respondent’s internal grievance procedures and the predisciplinary conference procedures were followed. (Petitioner’s Second Motion in Limine; T pp
205-207)
5.
N.C.G.S. 126-35 (a) requires that before a State employee is disciplined, the employee
shall be furnished with “a statement in writing setting forth in numerical order the specific acts or
omissions that are the reasons for the disciplinary action.”
6.
N.C.G.S. 126-35 (a) has been interpreted to require that the acts or omissions be described
"with sufficient particularity so that the discharged employee will know precisely what acts or
omissions were the basis of his discharge. ... An employee wishing to appeal his dismissal must
be able to respond to agency charges and be able to prepare an effective representation."
Employment Security Commission v. Wells, 50 N.C. App. 389, 274 S.E.2d 256, (1981)
7.
Petitioner was given proper statutory notice of the reasons for his dismissal and the
dismissal letter met the requirements of the law. There is nothing ambiguous in the dismissal
letter concerning the specific acts committed by Petitioner which led to his dismissal. Petitioner
was clearly notified of the specific acts which led to his dismissal allowing him to respond to the
charges and prepare an effective representation, which he did. The dismissal letter was
sufficiently specific. (R Ex. 19)
8.
Although the statute does not define “just cause,” 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).
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9.
While just cause is not susceptible of precise definition, our courts have held that 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.” NC DENR v. Carroll, 358
N.C. 649, 669, 599 S.E.2d 888, 900 (2004). The Supreme Court explained that the fundamental
question is whether “the disciplinary action taken was ‘just’. Further the Supreme Court held that;
“Determining whether a public employee had just cause to discipline its employee requires two
separate inquires: First, whether the employee engaged in the conduct the employer alleges, and
second, whether that conduct constitutes just cause for the disciplinary action taken.” NC DENR
v. Carroll, 358 N.C. 649, 665, 599 S.E.2d 888, 898 (2004).
10.
25 NCAC 1J .0604(b) provides that an employer may discipline or dismiss an employee
for just cause based upon unacceptable personal conduct or unsatisfactory job performance.
11.
Pursuant to 25 NCAC. 1J .0608(a) (2005), an employer may dismiss an employee without
warning or prior disciplinary action for a current incident of unacceptable personal conduct.
12.
In pertinent part “Unacceptable personal conduct” is defined by 25 NCAC 1J.0614 (I) as:
(1) conduct for which no reasonable person should expect to receive prior warning; or . . .
(4) the willful violation of known or written work rules; or
(5) conduct unbecoming a state employee that is detrimental to state service.
13.
Murdoch’s Abuse, Neglect and Exploitation Policy, APM #: 2.1.8.3 is a known and
written work rule. (R Ex. 15)
14.
Jerry’s BIP and his HASP are known and written work rules. (R Ex 2)
15.
Petitioner’s failure to remain alert, in violation of Jerry’s BIP, while attending to Jerry on
September 8, 2009 is conduct for which no reasonable person should expect to receive prior
warning.
16.
Petitioner willfully violated Jerry’s BIP and HASP a known or written work rule, when he
was less than alert while attending to Jerry on September 9, 2009.
17.
A willful violation of known or written work rules occurs when an employee "willfully
takes action which violates the rule and does not require that the employee intend [the] conduct to
violate the work rule." Teague v N.C. Dept. of Correction, 177 N.C. App. 215, 628 S.E.2d 395,
400 (2006) citing Hilliard v. N.C. Dept. of Correction, 173 N.C. App. 594, 620 S.E.2d 14, 17
(2005).
18.
Petitioner’s failure to remain alert, in violation of Jerry’s BIP, while attending to Jerry on
September 9, 2009 is conduct unbecoming a State employee that is detrimental to state service.
19.
No showing of actual harm is required to satisfy definition (5) of Unacceptable Personal
Conduct (conduct unbecoming a state employee that is detrimental to state service), only a
potential detrimental impact (whether conduct like the employee's could potentially adversely
affect the mission or legitimate interests of the State employer). Eury v. Employment Sec.
15
Comm'n, 115 N.C. App. 590, 610-11, 446 S.E.2d 383, 395-96, disc. review denied, 338 N.C. 309,
451 S.E.2d 635 (1994); Hilliard v. N.C. Dept. Of Correction, 173 N.C. App. 594, 597, 620
S.E.2d 14, 17 (2005).
20.
There is substantial, credible evidence in the record showing that Petitioner’s being less
than alert while monitoring Jerry could potentially adversely affect the mission and legitimate
interests of the Respondent. Respondent has a duty to protect the health and safety of residents in
residential care facilities. Allen v. N.C. DHHS, 155 N.C. App. 77, 85, 573 S.E.2d 565, 570
(2002).
21.
North Carolina law presumes that the Agency has properly performed its duties, and this
presumption is rebutted only by a showing that the Agency was arbitrary or capricious in its
decision making. Application of Broad and Gales Creek Community Assoc., 300 N.C. 267, 280,
266 S.E.2d 645, 654 (1980); Adams v. N.C. State Bd. of Req. for Prof. Eng. and Land Surveyors,
129 N.C. App. 292, 297, 501 S.E.2d 660, 663 (1998); In Re Land and Mineral Co., 49 N.C. App.
529, 531, 272 S.E.2d 6, 7, rev. denied, 302 N.C. 397, 279 S.E.2d 351 (1980)(holding that “the
official acts of a public agency . . . are presumed to be made in good faith and in accordance with
law”).
22.
Administrative agency decisions may be reversed as arbitrary and capricious only if they
are “patently in bad faith,” or “whimsical” in the sense that “they indicate a lack of fair and
careful consideration,” or “fail to indicate ‘any course of reasoning and the exercise of judgment.”
ACT-UP Triangle v. Comm’n for Health Services for the State of North Carolina, 345 N.C. 699,
707, 483 S.E.2d 388, 393 (1997).
23.
There is not sufficient evidence in the record to conclude that the Petitioner’s failure to
sign his statement constituted a failure to cooperate with management and an advocacy
investigation
24.
There is not sufficient evidence in the record to conclude that the Petitioner’s conduct
resulted in damage to state property.
25.
Respondent has met the burden of persuading me by the greater weight of the evidence
presented that it had just cause to discipline Petitioner for failing to remain alert while providing
supervision of resident, Jerry, on September 9, 2008. Of the four possible sanctions (written
warning, disciplinary suspension without pay, demotion and dismissal) the Department chose to
terminate Petitioner’s employment. While I may have decided to impose a lesser sanction for this
violation by a long term state employee, I am not convinced that the Department acted
erroneously, exceeded its authority or jurisdiction, acted arbitrarily or capriciously, or failed to act
as required by law or rule in deciding to fire Petitioner. Thus its judgment must stand.
BASED UPON the foregoing Findings of Fact and Conclusions of Law, the undersigned
Administrative Law Judge makes the following:
DECISION
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The undersigned Administrative Law Judge finds that Respondent’s dismissal of
Petitioner for just cause should be UPHELD.
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).
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 the 18th day of September, 2009.
_____________________________
Eugene J. Cella
Temporary Administrative Law Judge
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