STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE
14 OSP 05446
JACQUELINE CLARK,
Petitioner,
v.
NORTH CAROLINA DEPARTMENT of
PUBLIC SAFETY,
Respondent.
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FINAL DECISION
THIS MATTER came on to be heard before the undersigned Administrative Law
Judge, Augustus B. Elkins II, on October 23, 24 and 27, 2014 in Raleigh, North Carolina.
Petitioner initiated this contested case by filing in the Office of Administrative Hearings
(OAH) a Petition alleging that she was discharged without just cause.
After presentation of testimony and exhibits, the record was left open for the
parties’ submission of materials, including but not limited to supporting briefs, further
arguments and proposals after receipt of the official transcript as well as any petition for
attorney fees and responses. Mailing time was allowed for submissions including the day
of mailing as well as time allowed for receipt by the Administrative Law Judge.
Respondent’s motion for extension of time to file proposals and any other post hearing
materials was granted. Petitioner and Respondent filed timely proposals on January 27,
2015 with receipt to the Undersigned from the OAH Clerk’s Office on January 28, 2015.
Petitioner filed a “follow up letter in the Clark matter regarding two Conclusions of Law
proposed by the Respondent,” on January 27, 2015. Respondent requested and was
granted permission to submit additional arguments to Petitioner’s proposal. Respondent
submitted additional materials on January 30, 2015. Petitioner submitted a Petition for
Attorney’s Fees on February 23, 2015. Despite the due diligence of all parties, the
complexity of this case and time needed for completion of this matter exceeded the usual,
regular and customary; and has presented a situation of a kind other than what ordinary
experience or prudence would foresee. As such, extraordinary cause has been shown for
the issuance of this decision beyond 180 days from the commencement of the case.
APPEARANCES
For Petitioner:
Michael C. Byrne
Law Offices of Michael C. Byrne
150 Fayetteville Street, Suite 1130
Raleigh, NC 27601
For Respondent:
Tamika L. Henderson, Assistant Attorney General
Yvonne B. Ricci, Assistant Attorney General
N.C. Department of Justice
9001 Mail Service Center
Raleigh, North Carolina 27609
WITNESSES
For Petitioner:
Jacqueline Clark
For Respondent:
Petitioner
Stephanie Leach
Gloria George
Faye Duffin
George Solomon
EXHIBITS
For Petitioner:
2, 8(sealed), 9-12, 16(sealed)
For Respondent:
1(sealed), 2(sealed), 3-5, 9-11, 13-19, 20(sealed-
CD)
PRELIMINARY MATTERS
1. Petitioner made a motion to exclude witnesses from the hearing room, which was
granted.
2. Petitioner made a prehearing motion to exclude from evidence all evidence
supporting a dismissal that was not cited in the dismissal letter given to Petitioner
as required by law, specifically N.C.G.S. 126-35(a). The Undersigned took this
motion under advisement.
ISSUES
1.
Whether Respondent had just cause to dismiss the Petitioner due to Unacceptable
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Personal Conduct?
2.
Whether Respondent had just cause to dismiss the Petitioner for Grossly
Inefficient Job Performance?
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 makes the following Findings of Fact by a preponderance of the evidence. In
making these Findings of Fact, the Undersigned has weighed all the evidence and has
assessed the credibility of the witnesses by taking into account the appropriate factors for
judging credibility, including, but not limited to the demeanor of the 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 this case.
FINDINGS OF FACT
1.
Petitioner Jacqueline Clark is a career status employee of Respondent North
Carolina Department of Public Safety (DPS) who was employed at Alexander
Correctional Institution in Taylorsville, North Carolina (Alexander or “the
facility”). Prior to the events of this case, Petitioner had no prior disciplinary
action in her record.
2.
Petitioner commenced her employment with the North Carolina Department of
Public Safety in April 2011 as a Professional Nurse, Contributing Competency
Level, also known as a travel nurse at Foothills Correctional Institution.
Petitioner was promoted to a Professional Nurse, Journey Competency Level, also
known as a Lead Nurse in October 2011 and Transferred to Alexander
Correctional Institution at that time. Clark acknowledged that she received
orientation and appropriate training on DPS’s Health Services Policy and
Procedures.
3.
In August 2012, Clark received another promotion to a Nurse Supervisor I
Contributing Competency Level (Nurse Supervisor). Clark did not receive
additional training for her new role. She was required to complete a selfassessment regarding her ability to take a position in Nursing Leadership. On that
assessment, Clark represented that she was highly competent in the following
relevant areas: Health Services Policy and Procedure, Alexander Correctional
Standard Operating Procedure, staff training, Alexander’s Medical Mission, and
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nursing protocols. Clark signed the assessment attesting that she was proficient in
the assigned duties per DPS policy and procedure.
4.
The role of a Nurse Supervisor I is to directly supervise the lead nurses, the
chronic disease nurses, the clinicians, and the medical records staff. They also
provide direct coverage over the individual shifts, and provide on-shift guidance
at the times medical events occur.
5.
In 2013, DPS created a new position at Alexander, Nurse Supervisor III. As
envisioned, this would be a primarily administrative role as opposed to a direct
care position. This position had not previously existed at Alexander. The purpose
of the position, according to Petitioner’s testimony, was to “facilitate better
communication between the facility and the regional and state levels” due to the
large number of medical missions at Alexander.” Tr. 614.
6.
In January 2014, Clark was promoted to Nurse Supervisor III. At all times that
Clark held the Nurse Supervisor III position she had charge nurses and lead nurses
under her who helped manage the other nurses at the facility. At the time
Petitioner took the position, her most recent performance review, consistent with
her previous reviews, gave her Very Good to Outstanding ratings. Petitioner’s
most recent performance review prior to her promotion praised her for an
“excellent” job in learning her duties as a Nurse Supervisor I and noted that she
would “continue” to learn her “new” duties as a Nurse Supervisor III.
7.
Petitioner was terminated by DPS, some three months after promotion to Nurse
Supervisor III, on April 17, 2014 following the March 2014 death of an inmate,
Michael Kerr, who at the time of death was being transported to Central Prison in
Raleigh.
8.
DPS Director of Prisons George Solomon was the decision-maker on several
terminations from DPS, including Petitioner’s, based on this occurrence. Those
dismissals included staff from Custody, Nursing and Psychology at Alexander.
Solomon testified that the disciplinary measures following this incident were
handled at the division level. Solomon saw the event as a “policy changer for
everything that we do from this point forward.” Tr. 526.
9.
Petitioner’s April 3, 2014 pre-disciplinary conference notification was signed by
and conducted by Gwen F. Norville, Deputy Director of Adult and Juvenile
Facilities. Deputy Director Norville was the person signing Petitioner’s April 7,
2014 dismissal letter. Norville, the individual conducting the conference and
issuing the dismissal letter, did not testify at this hearing.
10.
Solomon testified that he reviewed the dismissal letter prior to Norville issuing it
to Petitioner. In approving the dismissal of Petitioner he viewed her conduct
regarding documentation and the Nutraloaf approval.
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11.
Alexander is a 1200-inmate facility. Approximately 1,000 of the inmates are in
the close custody facility known as “Alexander Main.” Another 200 are in a
minimum custody facility adjacent to Alexander Main that is known as
“Alexander Minimum.” The facility is part of one of three regions of correctional
facilities run by DPS. Alexander is in the Western Region. Accordingly, the
supervision chain ran from the facility through regional management to the
central management located in Raleigh.
12.
The facility has four categories of staff: administrative, mental health, custody,
and medical. Petitioner was employed on the medical staff. The medical staff
provides medical services for both Alexander Minimum and Alexander
Maximum.
13.
Health care services at Alexander Correctional is nurse-driven meaning that
nurses provide care first and patients are referred to providers (doctors) by the
nurses when needed. As the new Nurse Supervisor III, Clark was the highest
nursing authority at the facility.
14.
The medical staff was given twice-yearly policy and procedures audits by regional
management. In December 2013, the medical staff was audited. It received the
highest ratings possible on these areas: tracking chronic diseases, random review
of chronic diseases, emergency response (“Code Blue” calls), managerial
oversight, access to care, sick call procedures, medical administration, and
segregated patient care. These were higher ratings than the medical staff received
in a similar audit in May 2013.
15.
The reporting chain for the Nurse Supervisor III position was two-directional.
One report was to the prison administration. The other report was to the DPS
regional management for medical issues.
16.
Petitioner reported to two off-site regional managers on the medical side. Faye
Duffin, Director of Nursing for the Division of Adult Corrections testified that
these individuals were Deirdre Epley and Sheila Green. Epley was the Regional
Health Treatment Administrator and Green was a Regional Nurse Supervisor.
Spence Sales had been in Green’s role but had not been serving in that capacity
for several months due to surgery. Of particular note in this case is that neither
Epley nor Green testified at the hearing despite being Petitioner’s direct
supervisors. Moreover, no interviews of either Epley or Green were put into
DPS’s investigative report of Kerr’s death. Sheila Green received no discipline as
Director Solomon felt she had not failed to supervise at a level that would require
discipline.
17.
Ms. Duffin, was unaware prior to the hearing that neither Epley nor Green, as
Petitioner’s up-line medical or clinical supervisors had visited Alexander after the
fall of 2013, despite it being referenced in DPS’s investigation report. Duffin
stated that this information surprised her and described Petitioner’s direct
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supervisors neglecting to visit the facility in more than six months as a failure.
Duffin testified that it was “a failure for them not to visit every month.” Tr. 474475.
18.
The primary purpose of the new Nurse Supervisor III position which Petitioner
held at Alexander was administrative in nature. The Nurse Supervisor I position
(two of which were supposed to report directly to Petitioner in her new role),
directly supervised the lead nurses, the chronic disease nurses, the clinicians, and
the medical records staff.
19.
With Petitioner moving into the Nurse Supervisor III position, both Nurse
Supervisor I positions that reported to Petitioner were left vacant. Respondent’s
regional management was aware of these vacancies. Petitioner, at the time she
took the job, discussed the vacant Nurse Supervisor I positions with Green and
was assured that they would be filled promptly. Prior to the events that led to
DPS terminating Petitioner, they never were.
20.
At the time Petitioner took the Nurse Supervisor III position, Alexander had a
nursing shortage. This shortage, even prior to Petitioner assuming the new job,
led to persistent problems in documentation issues. Petitioner testified, “There
were not enough nurses to do all the work [of direct patient care], let alone take
the time and do all the proper documentation.” Tr. 617-18. In fact, after
Petitioner took on her new position there was a change in nursing staff
requirements at Alexander Minimum where they were trying to manage 20
additional beds without additional staff.
21.
Petitioner made various efforts as a Nurse Supervisor III to address
documentation issues, as noted in the nursing meeting minutes. These minutes
were, per standard procedure, forwarded to Deidra Epley and Sheila Green. There
was no evidence presented of concern on the part of DPS management regarding
Petitioner’s efforts to address documentation issues prior to the events that led to
Petitioner’s dismissal. Duffin testified that it would have been Green and Epley’s
responsibility to assist Petitioner with the staffing shortage issues at Alexander.
Epley and Green failed to forward the understaffing reports to Duffin herself, per
her testimony.
22.
Petitioner attempted to address the absence of the critical Nurse Supervisor I
positions by seeking and interviewing candidates. Petitioner spent up to three
work days per month reviewing and interviewing candidates. This occurred
during the entire three months Petitioner was in her position prior to Kerr’s death.
Despite Petitioner selecting candidates for the positions and sending them up the
chain of command and to DPS Human Resources for approval, no response and
no approval ever came while Petitioner was in the Nurse Supervisor III position.
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23.
Due to the staff shortage, Petitioner had to try to fill in for the two missing Nurse
Supervisor I positions, as well as perform everyday staff nurse functions in order
to keep the unit functioning.
24.
It was the fulfillment of one of these staff nurse functions that led to Petitioner’s
only interaction regarding Inmate Kerr. Petitioner did not know Kerr and never
delivered any direct treatment to him. The first Petitioner heard of Kerr was
through an email sent by the custody staff seeking approval for Nutraloaf.
Nutraloaf approvals was not a duty Petitioner would ordinarily be involved in, but
there was no one else available due to the understaffing situation at the facility.
25.
DPS has a policy which establishes procedures for placing inmates on special
management meals. The special management meal is commonly referred to as
Nutraloaf. Nutraloaf is a loaf-style form of nourishment that may be utilized, in
conjunction with other behavior modification tools, to address inmates that
display disruptive behavior.
26.
Petitioner acted on a request from custody staff to approve a Nutraloaf issuance
for Kerr. Nutraloaf is ordered for disciplinary or control reasons. Custody staff,
not medical staff, make the initial request for Nutraloaf approval, which is
directed to medical.
27.
Medical staff are required to first determine whether or not there is a medical
reason that would prohibit placing the inmate on Nutraloaf. The policy expressly
forbids placing an inmate on Nutraloaf without medical concurrence.
28.
A nurse generally gives the necessary medical approval for placement on
Nutraloaf. The policy requires that the nurse medically assess that inmate,
including reviewing the inmates medical records to ensure that it is medically
acceptable for the inmate to be placed on the meal substitute. Medical approval is
communicated via the prison’s Offender Population Unified System (OPUS). The
nurse is required to obtain the inmate’s vital signs, weight and educate the inmate
about the Nutraloaf prior to approving the Nutraloaf in OPUS. The nurse is
required to document the assessment and review in the inmate’s progress notes.
29.
Nutraloaf is served with milk. The inmate has access to all the drinking water he
wants, even in segregation. Toilet water may be restricted by custody staff due to
various actions by an inmate, but drinking water is not.
30.
In February 2014, Clark gave approval to have inmate Michael Kerr, housed in
Alexander’s segregation unit, placed on Nutraloaf. Prior to approving it,
Petitioner reviewed Kerr’s medical record. Petitioner testified, “I consulted with
the nurse and reviewed the medical jacket, and I delegated the vital signs, the
physical assessment, and the education to the nurse on the unit.” Tr. 645.
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31.
Prior to approval, Clark did not see Kerr. She failed to take his weight and vital
signs. Beginning a Nutraloaf diet, per policy, requires that the inmate’s vital signs
be taken and recorded. Petitioner delegated this duty to another staff member,
who failed to follow through with the delegation. It was undisputed at hearing
that taking vital signs, which requires seeing the inmate, is a routine task that was
properly delegated to lower level personnel. However, Petitioner conceded at
hearing that she should have followed up to ensure that the vital signs were
recorded, and that she had not done so.
32.
Clark testified that she did review Kerr’s medical chart but she failed to document
the chart review and Nutraloaf approval in Kerr’s progress notes. Clark conceded
during her recorded interview that her review of Kerr’s chart and her approval of
the Nutraloaf should have been documented.
33.
Properly documenting in an inmate’s medical records/progress notes is an
important part of delivery of quality health care. The medical record serves many
purposes including the plan for patient care, continuity of care, continuity of
information about the patient’s medical needs and treatment thereof. Proper
documentation ensures that any other provider, physician, nurse or psychologist
that reads the record can tell what you have done for the inmate/patient.
34.
Prior to approving Nutraloaf, Clark was aware that other medical staff was
concerned that Kerr was dehydrated. Clark testified that she believed that the
dehydration issue was resolved because she received an email from custody staff
indicating as much but did not examine Kerr for herself.
35.
Petitioner had no involvement with or knowledge of the second Nutraloaf issued
for Kerr, which occurred in the days immediately prior to Kerr’s death.
Petitioner’s Nutraloaf approval was the first Nutraloaf ordered for Kerr, on
February 24, 2014. This was 16 days prior to Kerr’s death on March 12.
36.
Petitioner noted the approval of the Nutraloaf in OPUS, which is the record
consulted by custody staff. Petitioner was asked at hearing whether she had
followed the DPS Basic Medical Documentation policy in failing to ensure
recording of the vital signs, and she indicated that she had not.
37.
Between Petitioner’s approval of the first Nutraloaf and Kerr’s death, a second
Nutraloaf issuance was requested by custody staff for Kerr. Petitioner was
unaware of either the request or the approval. This request was approved by a
staff nurse, Rebecca Welch. A second round of Nutraloaf requires medical staff to
conduct further assessment prior to continuing an inmate on Nutraloaf. Further,
Kerr would have been offered a regular meal prior to being placed on the
Nutraloaf a second time according to DPS policy. Welch also delegated the taking
of Kerr’s vital signs. Welch was not disciplined regarding this second Nutraloaf
approval.
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38.
Following Kerr’s death, DPS conducted two separate investigations. The first
was a Sentinel Event Report, conducted by Stephanie Leach. Leach is a licensed
registered nurse and the Risk Manager for DPS. Leach has been employed by
DPS for eight years. Leach’s role was to assemble and lead the team conducting
the review of Kerr’s death. The goal of the review was unrelated to disciplinary
action. None of the team conducting the Sentinel review worked at Alexander.
39.
Leach testified that the entire Alexander facility, as opposed to Petitioner
specifically, was substantially out of compliance with respect to the issues she
investigated. She was unaware of the specified or actual numbers of registered
nurses on staff. Leach testified that it was the job of DPS management to ensure
that a prison facility has adequate medical staff to do their jobs safely and
responsibly. Leach did not interview Petitioner’s supervisor, Green.
40.
Leach’s investigation found that the nursing staff at Alexander did not see or
document seeing Kerr from February 21, 2014 until March 4, 2014. Leach was
aware of the two missing Nurse Supervisor I positions, but was unable to answer
whether those positions were to be the direct supervisors of the lead nurses and
clinicians.
41.
Leach testified that DPS has a Chronic Disease Policy. She was the sole witness
who testified with respect to a violation of the DPS Chronic Disease Policy
referenced in Petitioner’s dismissal letter. The Policy requires nursing staff to
track, assess and evaluate patients on the chronic disease list. Leach’s
investigation determined that the nurse which Clark had assigned to manage the
Chronic Disease Clinic was not properly tracking or documenting inmates that
had a known chronic disease. Leach was unaware that Petitioner served, or was
intended to serve, in an administrative position.
42.
With respect to Petitioner’s actions on the Nutraloaf issue, Leach said that a
review of the record before approval would be looking back over the prior month
but later, Leach testified that she would review several days back of the inmate’s
chart as a review. Leach acknowledged that the policy did not state how far back
the review should be.
43.
Leach was unaware that Petitioner had directed a nurse on the unit to take Kerr’s
vital signs in connection with Nutraloaf approval. Leach confirmed that taking
vital signs was an uncomplicated procedure that could be done by a nurse’s aide
and conceded that it would not be unreasonable for Petitioner to direct a
subordinate on the unit to take the vital signs for a Nutraloaf order. Leach agreed
that the person who should have documented the vital signs in Kerr’s record was
the person delegated to take them, as one should not document in a medical
record things that he or she did not personally do.
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44.
Leach did not testify that any of Petitioner’s actions regarding the Nutraloaf
issuance caused or resulted in death or serious bodily injury to Kerr or created
conditions that increased the chance for death or serious bodily injury to Kerr.
45.
A second investigation and report was done by Gloria George and Ricky
Anderson. George is the Director of the Professional Standards Office within the
Division of Adult Correction and Juvenile Justice. Her background included
serving as an Equal Employment Opportunity officer. There were eight
investigators assigned to the investigation. Only George testified at the hearing.
George had no experience in the medical or mental health areas.
46.
George’s report was cited as the basis for disciplinary action against the Petitioner.
George could not “recall whether Ms. Clark was interviewed once or twice
because in some cases we would have one team interview the staff person and
then another team might do a second interview.” Tr. 277. George knew Green
was Petitioner’s direct supervisor but did not interview Green. She assumed
another team member might have but there is no Green interview attached to the
report.
47.
George did not have access nor read the sentinel review but relied on some
matters from that review by having discussions with Stephanie Leach. George
was unaware of how many persons were supposed to be on the Alexander medical
staff. In her investigation, George did not consider the issue of whether the
Alexander facility was properly and adequately staffed.
48.
George did not consult or review the OPUS records, which included Petitioner’s
documentation of the Nutraloaf approval. George did not dispute that Petitioner
documented the approval in OPUS.
49.
George did not know what the Electronic Rounds Tracking System (ERTS) was. It
is used by custody to monitor, in this case, Kerr, on a 24 hour basis. George did
not review any of the notes in either OPUS or the ERTS in the process of
conducting her investigation or in reaching her conclusions.
50.
In her report, George charged Petitioner with “an admission that she failed to
document her approval of the second Nutraloaf in Kerr’s medical record.” R. Ex.
2. Petitioner had nothing to do with the second Nutraloaf. When asked at the
hearing whether it was true Petitioner had nothing to do with the second
Nutraloaf, George replied that “the report must have been inaccurate, and it must
have been the first. I don’t think that changes, but anyway, yeah, it must have
been the first [Nutraloaf]. Tr. 331. When asked whether her report was sent to the
authorities to take corrective action based on that her initial conclusion that
Petitioner issued the second Nutraloaf, George answered, “Yes.” Tr. 334-335.
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51.
George at first testified that the second Nutraloaf was not documented but later
admitted that the second issuance was, in fact, documented, noting that Clark did
not document the second Nutraloaf.
52.
The dismissal letter fails to note that Petitioner’s Nutraloaf approval was entered
into OPUS, where it could be seen by custody staff as well as by any member of
medical staff, such as the nurse who approved the second Nutraloaf for Kerr.
There was no evidence presented that the nurse who approved the second
Nutraloaf was unaware of the Petitioner’s issuance of the first Nutraloaf through
any act or omission of the Petitioner’s.
53.
George’s investigation concluded that Clark failed to provide adequate
supervision of the nursing staff and this failure resulted in a violation of the
Health Services Policies and Procedures. George did not review any nursing staff
minutes in her investigation.
54.
Following the completion of these investigations, Petitioner was dismissed from
DPS on April 7. 2014. The dismissal letter accused Petitioner of both
unacceptable personal conduct and grossly inefficient job performance. The DPS
manager who signed the letter regarding the pre-dismissal conference and who
ultimately signed the dismissal letter, Gwen Norville, did not testify at the
hearing.
55.
Faye Duffin, the Director of Nursing in the Division of Adult Corrections, who
did testify, recalled seeing Norville on the first day of the hearing. Duffin saw the
dismissal letter for the first time after it was issued and provided no input or
opinions to Norville at the time the dismissal decision was issued.
56.
Petitioner’s dismissal was based on the allegations made in the dismissal letter
which is based off of George’s report. Petitioner’s dismissal was not based off of
the testimony of Duffin. Director Solomon did not speak with Duffin, or hear or
consider any of the opinions she offered at trial, prior to deciding to dismiss
Petitioner.
57.
The dismissal letter cites several specific conduct and performance reasons for
dismissal. One includes Nurse St. Clair and her being asked by custody staff on
March 12, 2014 to assess Kerr after they observed superficial lacerations on him,
with her responding that she was “busy.” St. Clair instructed the custody officer
to come to her station and obtain bandages. She did not assess Kerr. DPS
asserted that St. Clair’s actions constituted a failure by Petitioner to supervise St.
Clair resulting in violations of policy. DPS further alleged that it was Petitioner’s
responsibility to ensure that St. Clair knew of the requirements and protocols of
nursing policies.
58.
St. Clair did not testify at the hearing. She was dismissed from DPS over the Kerr
incident. Petitioner was St. Clair’s upper level supervisor as a Nurse Supervisor
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III. St. Clair was a staff nurse. She was supervised by a lead nurse or charge
nurse. Petitioner had no direct or even indirect involvement with the St. Clair
incident.
59.
At the time of the St. Clair incident, the senior staff (including the Petitioner) was
in a staff meeting approximately 15 feet away from the nursing station. St. Clair
was trained that she could get assistance from them if the need arose. She did not,
despite being in close physical proximity and also having a telephone to seek
help.
60.
Petitioner said that when she saw the video she saw a person in need of medical
attention, not Band Aids. Leach confirmed, from her investigation, that the only
thing custody staff told St. Clair was that Kerr had abrasions on his wrists. They
did not tell St. Clair that Kerr was unresponsive, unable to rise from his bunk, or
the other things seen in the video. Leach testified that custody staff should have
told St. Clair about these things.
61.
There was no evidence that St. Clair had, prior to this incident, refused to provide
care when asked. There would have been no reason for Petitioner, through prior
experience, to suspect that St. Clair would do so, assuming she did, in this case.
No custody staff testified at this hearing. Leach agreed that there is no amount of
training or supervision that can prevent a medical staff member from just deciding
that they are not going to help.
62.
Leach did not review personnel files in her investigation. Leach did confirm that
she did not uncover any evidence that St. Clair had acted this way in the past, so
as to put Petitioner and other managers on notice.
63.
Another allegation in the dismissal letter relates to Kerr not taking his medication,
citing that he had been seen by Dr. Carlson on November 18, 2013 at which time
Kerr told him he had not been on medication for six months or more. No specific
acts or omissions tied to Petitioner were presented into evidence with respect to
this allegation, citing “there should have been additional documentation verifying
assessment of Inmate Kerr.” This allegation comes from George’s report, who
relied on Leach’s claims that various matters were not properly documented.
64.
The evidence at hearing showed that medical checks on Kerr were documented by
the custody staff through the ERTS system. Under policy, it is the job of custody
staff to monitor Kerr’s food and drink intake and refusal of same. Custody staff
also logs medical checks on inmates.
65.
Neither Petitioner nor other medical staff members had access to the ERTS
system, and could neither put entries into that system nor direct custody staff to do
so. George made no attempt to look at or review the ERTS logs.
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66.
The dismissal letter also cites performance issues regarding allegations
concerning a registered nurse named Brenda Sigmon. Sigmon responded to a
code blue, called by custody staff with respect to Kerr on March 8, 2014. A code
blue is any situation identified as a medical emergency in the confines of
Alexander Correctional Institution requiring immediate assistance of medical
personnel. The dismissal letter states that Sigmon failed to document Kerr’s
condition as policy required, and that no follow up was done after the incident.
67.
During her recorded interview Clark conceded that a code blue sheet should have
been completed and placed in Kerr’s records by Sigmon. Clark asserted that her
subordinate, Nurse Kemp informed her that the code blue was properly
documented. However, it was not documented.
68.
Petitioner was neither present for nor participated in the code blue response. The
code blue that was called by custody staff on Kerr was not documented in the
ERTS system by the custody staff. The staff that responded included an RN, a
LPN, and a CHA with another RN responding.
69.
The policy at issue, and cited in the dismissal letter, is the DPS Health Services
Policy VII-5. The policy states that “in the event of a real emergency, the
completed emergency response note becomes part of the patient’s chart.” Tr. 192.
The medical staff who responded appeared to conclude that there was no
emergency upon responding to the code blue call and cleared Kerr. Leach
conceded that nothing in the policy requires documentation of non-emergency
situations, but only in the event of a real emergency.
70.
A further allegation in the dismissal letter contends that Petitioner stated that
health checks are completed daily by medical staff for inmates in segregation.
The dismissal letter states that “It is obvious that this statement is incorrect as the
medical record for Inmate Kerr does not document visits by medical staff while he
was housed in segregation. This is a clear violation of Health Services Policy and
Procedure Manual Section; Assessment of Patient, Policy # A-5, which states that
inmates in segregation will receive daily visits from trained health care staff.”
71.
The checks by nursing staff would be to see if the inmate had concerns and that
they were talking and moving. The evidence demonstrated that checks referred to
are documented at Alexander in the ERTS custody staff logs. Neither George nor
Leach consulted these logs, or the OPUS record, in making their reports.
72.
Another allegation in the dismissal letter discusses the issues of documentation at
Alexander. This allegation in the dismissal letter does not state that Petitioner
committed unacceptable personal conduct or grossly inefficient job performance
with respect to the issues concerned. It states “be advised your job responsibility
is to ensure you personally review and follow-up on specific documentation
completed by staff to ensure compliance with policy,” and further citing that
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“delegating these tasks does not eliminate your overall responsibility as the nurse
supervisor.”
73.
As noted, George failed to review or consider any of the nurses meeting minutes
that demonstrated the various steps Petitioner took to address documentation
issues at Alexander. These minutes show steps taken by Petitioner to address
those issues that were forwarded to Petitioner’s direct supervisors, Epley and
Green, who raised no complaints about them.
74.
Faye Duffin testified that she would expect a supervisor to review some ten
random patient charts per month to ensure that proper documentation was taking
place. This testimony was not proffered as being a policy requirement. Petitioner
herself reviewed ten random patient charts per month, but also delegated to other
staff the task of reviewing still more random charts in order to get a better sample
based on the large size of the Alexander facility.
75.
The final specific allegation against Petitioner in the dismissal letter was that
Petitioner “did not realize that the Nurse Clinician was unaware of how to utilize
the OPUS tracking system and you asked her about it … it was your responsibility
to ensure that [she] was trained and knew exactly how to complete her duties.”
The assertion claims that this failure was an alleged violation of the Chronic
Disease Guidelines.
76.
Little if any evidence was offered on this allegation by DPS at hearing. As
previously found, the only specific violation of the Chronic Disease Policy
testified to by DPS witnesses occurred in 2012, before Petitioner was selected for
the Nurse Supervisor III role.
77.
Though the two investigation reports were admitted into evidence, no witnesses,
other than Petitioner, cited within the reports testified at this hearing. In the
Sentinel Event Report, Christine Butler, Staff Psychologist made a statement on
March 12, 2014, where she noted that on March 7, she attempted to have Kerr
attend his psychiatry appointment but he would not approach the cell door. She
noted he was verbally responsive but was observed to be very unkempt. She also
noted that on March 11, it was discussed in outpatient mental health morning
rounds that Kerr had come to the attention of medical and custody staff. The
mental health staff determined that though he was not exhibiting actively selfharmful behavior, referral was made to CPMH, because mental health staff had
been unsuccessful to bring him to outpatient psychiatry.
BASED UPON the foregoing findings of fact and upon the preponderance or
greater weight of the evidence in the whole record, the Undersigned makes the following
Conclusions of Law.
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CONCLUSIONS OF LAW
1.
All parties are properly before the Office of Administrative Hearings (OAH), and
jurisdiction and venue are proper. To the extent that the Findings of Fact contain
Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they
should be so considered without regard to the given labels.
2.
On August 21, 2013, the North Carolina Governor signed House Bill 834 into law
which substantially revised Chapter 126 of the General Statutes, now cited as
State Personnel System [State Human Resources System]. Any use of terms such
as State Personnel Act or Office of State Personnel or the like shall be construed
as a reference to the State Human Resources System.
3.
A court need not make findings as to every fact that arises from the evidence and
need only find those facts which are material to the settlement of the dispute.
Flanders v. Gabriel, 110 N.C. App. 438, 440, 429 S.E.2d 611, 612, aff’d, 335
N.C. 234, 436 S.E.2d 588 (1993).
4.
The death of inmate Michel Kerr is tragic in every sense of the word. Evidence
and argument presented by the Respondent included a DVD showing a very
lethargic and unresponsive Kerr lying on the bunk in his cell prior to his
transportation from Alexander to Central Prison. Custody staff enter his cell
wearing masks and must use bolt cutters to remove the feces caked handcuffs that
he is wearing before physically placing him in a wheelchair for exiting the unit.
This and other evidence certainly evokes great emotion but this case should and
must be singularly focused on this Petitioner, who had assumed her Nurse
Supervisor III role just two months prior to the death of Mr. Kerr, and the very
specific acts or omissions cited in her letter of dismissal.
5.
Petitioner was a career State employee at the time of her dismissal. She is entitled
to the protections of the North Carolina State Personnel Act. She has alleged that
Respondent lacked just cause for her dismissal.
6.
North Carolina General Statute (N.C.G.S.) § 126-35(a), in pertinent part,
provides:
No career State employee subject to the North Carolina Human Resources
Act shall be discharged, suspended or demoted for disciplinary reasons,
except for just cause. In cases of such disciplinary action, the employee
shall, before the action is taken, be furnished with a statement in writing
setting forth the specific acts or omissions that are the reasons for the
disciplinary action and the employee’s appeal rights.
7.
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
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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 Sec. Comm’n v. Wells,
50 N.C. App. 389, 393, 274 S.E.2d 256, 259 (1981).
8.
In a career State employee’s appeal of a disciplinary action, “the burden of
showing that a career State employee was discharged, demoted or suspended for
just cause rests with the employer.” N.C.G.S. § 126-34.02(d).
9.
The North Carolina Administrative Code, specifically 25 NCAC 1I.2301(c),
enumerates two grounds for disciplinary action, including dismissal, based upon
just cause: (1) unsatisfactory job performance, including grossly inefficient job
performance; and (2) unacceptable personal conduct. Petitioner was dismissed
for grossly inefficient job performance and unacceptable personal conduct.
10.
N.C.G.S. § 126-35 only permits disciplinary action against career state employees
for just cause. Although “just cause” is not defined in the statute, the words are to
be accorded their ordinary meaning. Amanini v. Dep't of Human Resources, 114
N.C. App. 668, 678, 443 S.E.2d 114, 120 (1994) (defining "just cause" as, among
other things, good or adequate reason). “Just cause, like justice itself, is not
susceptible of precise definition. It is a flexible concept, embodying notions of
equity and fairness that can only be determined upon an examination of the facts
and circumstances of each individual case.” N.C. Dep't of Env't & Natural Res. v.
Carroll, 358 N.C. 649, 669, 599 S.E.2d 888, 900 (2004) (citations omitted).
11.
In accordance with Carroll, the fundamental question in determining just cause is
whether the disciplinary action taken was just. Our Supreme Court has stated that
there is no bright line test to determine just cause and not every violation of law
gives rise to just cause for employee discipline.
12.
Cases involving unacceptable personal conduct require a multi-step analysis. This
first inquiry is whether the employee engaged in the conduct the employer
alleges. The second inquiry is whether the employee’s conduct falls within one of
the categories of unacceptable personal conduct provided by the Administrative
Code. Unacceptable personal conduct does not necessarily establish just cause for
discipline. If the employee’s act qualifies as a type of unacceptable personal
conduct, the tribunal proceeds to the third inquiry of whether that misconduct
amounted to just cause for the disciplinary action taken. Just cause must be
determined based “upon an examination of the facts and circumstances of each
individual case.” Warren v. N.C. Dep’t. of Crime Control & Pub. Safety, 221 N.C.
App. 376, 381, 726 S.E.2d 920, 925 (2012), disc. rev. denied, 366 N.C. 408, 735
S.E.2d 175 (2012).
13.
25 N.C.A.C. 1J.0606 (a) authorizes the dismissal of an employee without prior
warning for grossly inefficient job performance. 25 N.C.A.C. 1J.0614 (5) states
that “Gross Inefficiency (Grossly Inefficient Job Performance) means “a type of
16
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 (a) 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; or( b) the loss of or damage to state property or
funds that result in a serious impact on the State or work unit.”
14.
With respect to the policy violations cited, the weight of the evidence fails to
show Petitioner’s violation of the policies named by Respondent in the dismissal
letter. The evidence does not establish a violation of the Assessment of Patient
Policy as that violation is premised on the absence of medical staff segregation
checks in the inmate medical records. The records of custody staff, where the
checks would be recorded, were not reviewed by the investigator, George, on
whose report this allegation was based. The evidence also does not establish a
violation of the Chronic Disease Policy by the Petitioner. As noted, no Chronic
Disease Policy violation was established that occurred during the time when
Petitioner served as a Nurse Supervisor III. Lastly the weight of the evidence
does not establish a violation of the policy regarding emergency response
documentation as it is connected to this Petitioner.
15.
On the issues generally described or pertaining to alleged failures to supervise her
staff, the weight of the evidence fails to connect any of the staff failures cited to
the Petitioner, other than Petitioner being either the indirect, or de facto supervisor
of two employees identified, St. Clair and Sigmon.
16.
The Respondent as the party with the burden of proof, did not establish, by the
greater weight of the evidence, actionable conduct on Petitioner’s part cited in the
dismissal letter with the exception of matters related to the Petitioner’s approval
of the first Nutraloaf for Kerr.
17.
With respect to Petitioner’s oversight of the Nutraloaf issuance, the greater weight
of the evidence does not establish gross inefficiency on the part of the Petitioner.
No witness testified, and the dismissal letter itself does not allege, that any act or
omission of Petitioner regarding her Nutraloaf issuance caused or resulted in
death or serious bodily injury to Kerr or created conditions that increased the
chance for death or serious bodily injury to Kerr.
18.
The weight of the evidence reveals that the disciplinary action on the Nutraloaf
issue was based on the false premise, found by George in her report and never
corrected, that Petitioner failed to document the second Nutraloaf. The evidence
shows that Petitioner had nothing to do with the second Nutraloaf approval, which
was issued between Petitioner’s issuance of the first Nutraloaf and Inmate Kerr’s
death. There was no evidentiary connection made between the Petitioner’s
documentary oversights on the Nutraloaf issue and Inmate Kerr’s death. Barring
17
such evidence, gross inefficiency cannot be inferred and attributed to this
Petitioner.
19.
Petitioner admitted her oversights with respect to ensuring that the first Nutraloaf
issuance was properly documented in the inmate’s medical record. While not
directly attributing this to the Nutraloaf issue, the dismissal letter does assert that
Petitioner’s actions generally constituted “willful violations of known or written
work rules.”
20.
The Undersigned does not conclude that Petitioner should not have approved the
Nutraloaf request (there is no evidence that approval of the request was medical
or professional error) or that Petitioner failed to consult the medical record and do
the other obligations required prior to such approval. Petitioner did fail to
properly document in the medical record and failed to ensure that a subordinate,
who was delegated the documentation tasks and failed to complete them, actually
did not.
21.
The Undersigned does not conclude that Petitioner willfully refused to follow up
with the appropriate entries in Kerr’s medical record, but that she neglected to do
so and admitted that she should have done so.
22.
As set forth by the United State Supreme Court, “we have held that “the burden of
proof” is a “ ‘substantive’ aspect of a claim.” Raleigh v. Illinois Dept. of Revenue,
530 U.S. 15, 20–21, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000); Director, Office of
Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 271,
114 S.Ct. 2251, 129 L.Ed.2d 221 (1994) (“[T]he assignment of the burden of
proof is a rule of substantive law ...”); Garrett v. Moore–McCormack Co., 317
U.S. 239, 249, 63 S.Ct. 246, 87 L.Ed. 239 (1942) (“[T]he burden of proof ... [is]
part of the very substance of [the plaintiff's] claim and cannot be considered a
mere incident of a form of procedure”).” Medtronic, Inc. v. Mirowski Family
Ventures, LLC, 134 S. Ct. 843, 849, 187 L. Ed. 2d 703 (2014)
23.
Our own North Carolina courts have emphasized in multiple cases that ‘'[t]he rule
as to the burden of proof is important and indispensable in the administration of
justice. It constitutes a substantial right of the party upon whose adversary the
burden rests, and therefore it should be carefully guarded and rigidly enforced by
the courts. State v. Falkner, 182 N.C. (793), 798, 108 S.E. 756, 17 A.L.R. 986, and
cases there cited.’ Skyland Hosiery Co. v. [American Ry.] Express Co., 184 N.C.
478, 114 S.E. 823. ‘ Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341,
344; Crain v. Hutchins, 226 N.C. 642, 39 S.E.2d 831.” Tippite v. Atl. Coast Line
R. Co., 234 N.C. 641, 644, 68 S.E.2d 285, 288 (1951)
24.
Respondent has failed to carry its burden of proof that just cause existed to
dismiss Petitioner. Petitioner’s actions did not constitute unacceptable personal
conduct or grossly inefficient job performance.
18
25.
In Warren v. N.C. Dep’t. of Crime Control & Pub. Safety, 221 N.C. App. 376, 381,
726 S.E.2d 920, 924 (2012), disc. rev. denied, 366 N.C. 408, 735 S.E.2d 175
(2012), the North Carolina Court of Appeals interpreted Carroll to mean that not
every instance of unacceptable personal conduct as defined by the North Carolina
Administrative Code provides just cause for discipline. The Warren Court further
held that after the court determines whether the individual’s conduct constitutes
unacceptable personal conduct, then the court must “balance the equities” to
determine if the unacceptable personal conduct constituted just cause for
dismissal. Warren at 382, 726 S.E.2d 925.
26.
The Undersigned notes that even if Petitioner’s action(s) were at some level
considered to be some type of unacceptable personal conduct, Petitioner’s actions
did not constitute just cause for dismissal when the equities in this case are
balanced. Those include the following: 1) Petitioner’s substantial, discipline-free
employment history with Respondent as well as her record of good performance
in her duties as recorded in her performance reviews; 2) Petitioner had been
promoted to Nurse Supervisor III only two months prior to inmate Kerr’s death;
3) the position had not previously existed at Alexander and was primarily an
administrative role; 4) two Nurse Supervisor I positions were authorized for
Alexander and designed to directly supervised the lead nurses, the chronic disease
nurses, the clinicians, and the medical records staff; 5) Both Nurse Supervisor
positions who would have reported directly to Petitioner in her new role were
vacant; 6) the nursing staff shortages were known or according to testimony
should have been known and addressed by Petitioner’s supervisors and were not;
and 7) Petitioner was faced with the responsibility of not only carrying out her
duties as a Nurse Supervisor III but also provide direct care, staff nurse functions
to address a rather large facility.
27.
In reaching the conclusions in the case as well as the findings of fact, the
Undersigned again notes that no direct supervisor of Petitioner testified at this
hearing, and of prominent importance, the individual conducting and analyzing all
matters brought forth as part of the pre-disciplinary conference and ultimately
issuing the dismissal letter to Petitioner, also did not testify as a witness in this
hearing.
28.
In accordance with N.C.G.S. § 150B-33(b)(11), an administrative law judge may
“[o]rder the assessment of reasonable attorneys’ fees and witnesses’ fees against
the State agency involved in contested cases decided under … Chapter 126 where
the administrative law judge …orders reinstatement or back pay.” Further, in
accordance with N.C.G.S. § 126-34.02(e) the “Office of Administrative Hearings
may award attorneys’ fees to an employee where reinstatement or back pay is
ordered.”
29.
The starting point for determining the amount of a reasonable fee is the
calculation of “the number of hours reasonably expended on the litigation
19
multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433,
103 S.Ct. 1933, 1939, 76 L.Ed2d 40 (1983).
30.
The determination of a reasonable attorney’s fee is a matter of discretion with the
Court. See Robinson v. Equifax Info. Servs., 560 F.3d 235, 243 (4th Cir. 2009). In
determining what is reasonable, the Fourth Circuit has instructed that a Court
should be guided by the following factors, known as the “Johnson factors”: (1)
the time and labor expended; (2) the novelty and difficulty of the questions raised;
(3) the skill required to properly perform the legal services rendered; (4) the
attorney’s opportunity costs in pressing the instant litigation; (5) the customary
fee for like work; (6) the attorney’s expectations at the outset of the litigation;(7)
the time limitations imposed by the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the experience, reputation and ability of
the attorney; (10) the undesirability of the case within the legal community in
which the suit arose; (11) the nature and length of the professional relationship
between attorney and client; and (12) attorneys’ fees awards in similar cases.
Grissom v. The Mills Corp., 549 F.3d 313, 321 (4th Cir. 2008) (applying twelvefactor test set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,
717-19 (5th Cir.1974)) (citation omitted).
31.
Petitioner through counsel has filed a Petition for Attorney Fees (Petition), as well
as Petitioner’s Engagement (retainer) letter, and Petitioner’s Invoice from counsel
for services and costs. The Undersigned has studied and considered all matters
submitted.
32.
Petitioner seeks an award of attorneys’ fees and related costs in the amount of
$22,335.42 (see Para 18 of Petitioner’s Petition) (incorrectly calculated as
$22,345.42 in the first paragraph of the Petition) based upon the handling of this
case. Michael C. Byrne, the sole attorney representing the Petitioner, is licensed
in the State of North Carolina and is an attorney in good standing with the North
Carolina Courts.
33.
An award of attorney fees should be based on rates prevailing in the community
where the action takes place. The Undersigned has reviewed the qualifications
and experience of Petitioner’s attorney. Based on the information provided and
the Undersigned’s own knowledge of and experience with prevailing rates
charged in the relevant community, the Undersigned finds the requested hourly
fees to be reasonable. Further, the Undersigned finds that the time charged by Mr.
Byrne in the representation of the Petitioner is reasonable in light of his skill,
training, and experience.
BASED UPON the foregoing Findings of Fact and Conclusions of Law the
Undersigned makes the following Final Decision.
20
FINAL DECISION
The Undersigned finds and holds that there is sufficient evidence in the record to
properly and lawfully support the Conclusions of Law cited above. The Undersigned
enters the following Final Decision based upon the preponderance of the evidence,
having given due regard to the demonstrated knowledge and expertise of the Agency with
respect to facts and inferences within the specialized knowledge of the Agency.
Based upon the foregoing Findings of Fact and Conclusions of Law, the
Undersigned holds that Respondent failed to carry its burden of proof by a greater weight
of the evidence that there was just cause to dismiss Petitioner on the grounds set forth in
the dismissal letter. The finder of fact cannot properly act upon the weight of evidence,
in favor of the one having the onus, unless it overbear, in some degree, the weight upon
the other side. The weight of Respondent’s evidence does not overbear in that degree
required by law the weight of evidence of Petitioner to the ultimate issue, and as such
Respondent’s dismissal of Petitioner was in error.
Petitioner is entitled to be reinstated to her position of employment with the same
pay. She is to be paid all compensation to which she would otherwise have been entitled
since the date of dismissal, including but not limited to back pay, leave, contributions into
the State retirement system, and any and all benefits to which she would have been
entitled.
The Undersigned further holds that Petitioner Jacqueline Clark’s Petition for
Attorney Fees is granted, and Petitioner shall have and recover of the Respondent the
sum of Twenty-two Thousand Three Hundred and Thirty-five Dollars and Forty-two
Cents ($22,335.42) in attorney’s fees and costs.
NOTICE
THIS IS A FINAL DECISION issued under the authority of North Carolina
General Statute § 150B-34. Under the provisions of North Carolina General Statute §
126-34.02(a): “An aggrieved party in a contested case under this section shall be entitled
to judicial review of a final decision by appeal to the Court of Appeals as provided in
G.S. 7A-29(a). The procedure for the appeal shall be as provided by the rules of
appellate procedure. The appeal shall be taken within 30 days of receipt of the written
notice of final decision. A notice of appeal shall be filed with the Office of
Administrative Hearings and served on all parties to the contested case hearing.”
In conformity with the Office of Administrative Hearings’ Rules, and the Rules of
Civil Procedure, N.C. General Statute 1A-1, Article 2, this Final Decision was served on
the parties the date it was placed in the mail as indicated by the date on the Certificate of
Service attached to this Final Decision.
21
Under North Carolina General Statute § 150B-47, the Office of Administrative
Hearings is required to file the official record in the contested case with the Clerk of the
Court of Appeals within 30 days of receipt of the Petition for Judicial Review.
Consequently, a copy of the Petition for Judicial Review must be sent to the Office of
Administrative Hearings at the time the appeal is initiated in order to ensure the timely
filing of the record.
IT IS SO ORDERED.
This is the 4th day of March, 2015.
______________________________
Augustus B. Elkins II
Administrative Law Judge
22