STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
06 OSP 0787
COUNTY OF WAKE
PAMELA Y. TURNER,
Petitioner,
)
)
)
v.
)
)
NC DEPARTMENT OF HEALTH AND )
HUMAN SERVICES, WHITAKER
)
SCHOOL,
)
Respondent.
)
DECISION
This matter was heard before the Honorable Beryl E. Wade, Administrative Law Judge,
on October 13, 2006 in the Lee House Hearing Room, 422 North Blount Street, Raleigh, North
Carolina, commencing at 9:30 a.m.
APPEARANCES
For Petitioner:
Michael C. Byrne
Attorney at Law
5 West Hargett Street, Suite 310
Raleigh, NC 27601
For Respondent:
Kathryn J. Thomas
Assistant Attorney General
9001 Mail Service Center
Raleigh, NC 27699-9001
ISSUE
Did Respondent have just cause to dismiss Petitioner pursuant to N.C.G.S. §126-35?
APPLICABLE STATUTES AND RULES
N.C.G.S. § 126, et. seq.
N.C.G.S. § 150B-23, et. seq.
25 N.C.A.C. 01, et. seq.
WITNESSES
For Respondent:
Pamela Y. Turner
Kevin Kester
Ray Newnam
Guy Baker
ISSUE:
Did Respondent have just cause to dismiss Petitioner pursuant to N.C.G.S. §126-35?
GOVERNING LAW, RULE, AND POLICY
1. N.C.G.S. 126 et. seq.
2. N.C.G.S. 150B et. seq.
3. 25 N.C.A.C. 1J.0608
4. 25 N.C.A.C. 1J.0614
5. DHHS Directive 61
6. N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 669-670 (N.C. 2004)
7. Allen v. DHHS, 155 N.C. App. 77, 573 S.E.2d 565, cert. denied, 357 N.C. 163, 580 S.E.2d
358 (2003)
8. North Carolina State Personnel Manual
9. Whitaker School Abuse Policy
WITNESSES
Called by Petitioner: Pamela Turner (Petitioner), Peggy Anderson
Called by Respondent: Ray Newnam, Kevin Kester, Guy Baker
EXHIBITS
Petitioner’s Exhibits 1 - 20 were admitted on behalf of Petitioner.
Respondent’s Exhibits 1 - 21 were admitted on behalf of Respondent.
Following the hearing, Respondent objected to Petitioner’s Exhibits 4 and 5 on the grounds of
hearsay. Exhibit 4 was a medical record of Petitioner consisting of a doctor’s note confirming
Petitioner’s condition of rhinitis, or hay fever, and accompanying irritation of the vocal cords.
This Court overrules the objection as the doctor’s note, identified by Petitioner, merely
corroborates the testimony of Petitioner and another witness, Peggy Anderson, that Petitioner
was experiencing these conditions on the date of the incident at issue, and is admitted for what
corroborative value it has.
Exhibit 5 was a statement from one Tiffany Wilkerson, a former employee of Whitaker School
who witnessed the incident at issue. Wilkerson’s statement was collected by Respondent itself as
part of its investigation of the incident among several other statements, all of which were
admitted into evidence by the Respondent. The Court overrules the objection as Exhibit 5 is a
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business record collected by and in fact obtained and initiated by Respondent as a part of its
investigation of this incident; it was identified and authenticated by witnesses for Respondent at
the hearing.
FINDINGS OF FACT
In making the Findings of Fact, the undersigned has weighed all the evidence and assessed the
credibility of the witnesses. The undersigned has taken into account the appropriate factors for
judging credibility of witnesses, including but not limited to the demeanor of the witness, any
interests, bias, or prejudice the witness may have. Further, the undersigned has carefully
considered 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.
After careful consideration of the sworn witness testimony presented at the hearing, the
documents and exhibits admitted into evidence, and the entire record in this proceeding, the
undersigned makes the following FINDINGS OF FACT:
1.
Petitioner Pamela Turner (“Petitioner”) is a state employee with career status. Until
January 20, 2006, Petitioner was employed as a Youth Program Assistant II (“YPA II”) with
Respondent North Carolina Department of Health and Human Services at their facility known as
“Whitaker School” (collectively “Respondent”) in Butner, North Carolina. Whitaker School is a
treatment facility operated by the Secretary of the N.C. Department of Health and Human
Services. N.C.G.S. §122C-181.
2.
As of January 20, 2006, Petitioner had been employed with Respondent for
approximately six years. Respondent, on that date, dismissed Petitioner from employment.
Respondent stated as just cause for this dismissal an allegation that Petitioner abused a student,
“SS,” by yelling at her and speaking harshly, causing her to cry hysterically. SS did not testify at
the hearing and no statement from SS was admitted into evidence. Petitioner completed
Respondent’s internal grievance process and timely filed a Petition for a Contested Case in the
Office of Administrative Hearings.
3.
Whitaker School is a highly restrictive mental health treatment facility for adolescents
with serious emotional and behavioral disturbances who have been unsuccessfully treated in less
restrictive environments. The overall program philosophy at Whitaker School is based on the
ReEducation model which stresses the importance of addressing every aspect of the adolescent’s
life in treatment in a highly structured program (R Ex 2) The program usually lasts from nine to
twelve months, and the purpose is to get the students back into the community so that they can
function. Some students have self-destructive behaviors, and others have aggressive behaviors.
(T 66-67) The criteria for admission include having been through multiple treatments and
multiple placements, and Whitaker School is “kind of the last stop on the mental health track.”
(T 67) All of the children have been diagnosed with mental illnesses. (T 68) The age group
served is from thirteen through seventeen. It is a secure residential unit for some of the most
difficult children in the state. On average, each child has failed at least eight placements prior to
coming to Whitaker School. They have multiple diagnoses; they are aggressive, and dangerous
to self or others. (T 112-113) The ReEducation Model is client-centered, strength-based which
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involves building on their strengths, trying to get them normalized and point out to them what
they do well, and try to build on that so that they can function in society. (T 68)
4.
Kevin Kester (“Kester”) a licensed professional counselor and Social Worker III at
Whitaker School testified for Respondent. Kester is a Social Worker III at Whitaker School
where he works as unit clinician and therapist on the Eagles Unit. (T. 65-66) He is a licensed
professional counselor. (T. 98) There are a maximum of nine students on the unit at one time.
Kester has worked as a counselor and therapist since he received his master’s degree in 1984.
He received his North Carolina license in 1992-93 and previously worked in California. He also
works part-time for the Five-County Mental Health for emergency services evaluations which
involves determining whether a person requires hospitalization or not. (T. 65-66)
5.
Kester provides individual, family therapy, group therapy, runs treatment teams, and is
responsible for monitoring the clinical interventions for the unit with the unit director. Kester
received training for the Re-Education model by reading the training manual and attending
annual conferences. (T p 69) He has also received training in North Carolina Interventions
which involves learning how to safely handle agitated, combative situations, and de-escalate
problem situations. (T p 70)
6.
Kester has a lot of individual interactions with the students at Whitaker School, and he is
sometimes on the unit helping other staff when he is not attending to his other responsibilities.
(T p 69) In his job, he works closely with the Youth Program Assistants. (T p 70)
7.
Ray Newnam, (“Newnam”) senior psychologist at Whitaker School, testified for
Respondent. He has been employed at Whitaker School since 2001. He has also served as
director of the school and as unit psychologist. Prior to that time he was senior psychologist for
the Area Mental Health System of Vance, Granville, Franklin, and Warrant Counties for twentyfour years. He is very familiar with the population served by Whitaker School. He is familiar
with the ReEducation model which is based on the children learning to trust adults, developing
competence, and learning cognitive control of their interactions with others. (T pp 112-115)
8.
Newnam is also familiar with training requirements for staff, though he did not train
Petitioner. When Newnam was the director of Whitaker School he had to ensure that all staff was
recertified each year in North Carolina Interventions, CPR, and blood borne pathogens, first aid,
and abuse policies. (T p 119) NCI is designed to make sure that the staff prevents violence or
self-injury, and interventions are required to protect the children. (T p 122)
9.
Newnam is familiar with Petitioner. She worked on the Cedar Unit while he was a unit
psychologist there, and when he became director, she continued to be an employee at Whitaker
School. (T p 123) Newnam had “long-standing concerns” about Petitioner’s dealings with
students. T. 123. However, he never documented any of these concerns, either at the time or
later. T. 131-132. Newnam had the authority to document his “concerns” about Petitioner on
Petitioner’s performance evaluation. T. 134-135. However, he did not do so. T. 134-135.
Newnam did not witness any part of the incident between Petitioner and SS. T. 130. Petitioner
talked regularly with Newnam in his office and that Newnam never expressed these “concerns”
to Petitioner. T. 277-79.
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10.
Guy Baker (“Baker”) a mental health unit director for Eagle Lodge at Whitaker School
testified for Respondent. Baker’s job responsibilities include managing the unit for nine
students, five boys and four girls. He is responsible for all staffing including interviewing,
hiring, motivating, training, and disciplinary actions on all three shifts.
He makes sure
scheduling is appropriate, and supervises all of the Youth Program Assistant I’s and II’s. He has
been at Whitaker School since 2000 and was previously a supervisor at Butner Adolescent
Treatment Center where he had worked since 1998. (T p 163) Whitaker School and Butner
Adolescent Treatment Center were merged. He has worked for many years as a residential
counselor and therapeutic foster parent (T p 164) The average stay for children at Whitaker
School is nine to ten months after which they are reintegrated into their community. (T p 165166)
11.
Baker’s normal daily routine involves reviewing incident reports and making sure
documentation is appropriate, dealing with children in seclusion, scheduling, making sure
systems such as mandatory overtime are in place, participating in management and treatment
team meetings as well as program development and community-based meetings. He also attends
shift exchanges where information about student progress is shared. (T p 167) His hours vary
throughout the week because he tries to touch base with all shifts sometime during the week. (T
p 168)
12.
Peggy Anderson (“Anderson”), a Youth Program Administrator III and third shift
supervisor, testified for Petitioner. Anderson had been employed at Whitaker School for over
eleven years, longer than Kester, Baker, and Newnam. T. 250. Anderson was familiar with
Petitioner’s work conduct and habits through personal experience, though she did not personally
witness the incident with SS. Anderson had worked with Petitioner frequently and never
observed her being abusive toward a student, or yelling and/or using harsh tones. T. 257, 265.
Nor did Anderson ever observe Petitioner being unkind to students. T. 265.
13.
Petitioner, Pamela Y. Turner (“Petitioner”) has worked for the State of North Carolina
since 1998, first at Murdoch Center and, since 1999, at Whitaker School. (T p 13-14) In her
capacity as Youth Program Assistant II she was responsible for monitoring the students and the
staff and generally conducting the responsibilities set out in her job description. (T p 20) In
addition, Petitioner’s responsibilities included “not to have them hurt themselves or hurt others,
to give consequences to their actions and behaviors, [and] to teach them how to go out and be
independent.” (T p 24) Petitioner provided treatment to the children by giving out medications,
comforting the children, redirecting them when they did wrong, and leading group sessions
where they talked about how their day went. Petitioner also took students on off-campus trips,
including SS, on her own time, including trips with SS to shop and get her hair done. T. 264, 282
Petitioner, in her most recent performance evaluation prior to her dismissal, received an overall
rating of “Very Good,” the second highest available. T. 136, 140.
14.
Petitioner received training to work at Whitaker School which included training in the
ReEducation model of therapy. (T pp 37) One purpose of the therapy is to help the children
cope with stresses in their lives. (T p 41) The training for reeducation involves caring for the
students, listening to the students, role playing with the students, and modeling appropriate
5
behavior including using the proper tone of voice, as well as leading the agenda process in the
group meetings. (T pp 37-38, 41) Petitioner’s training in the reeducation model included reading
a book and going to a two-day conference. (T pp 37-40; R Ex 1)
15.
Petitioner’s training record while she worked at Whitaker School was introduced into
evidence. The record indicated that Petitioner had received NCI recertification in October 2005.
In August, 2005, Petitioner had received training in “Human Rights for Patients, which includes
making sure students get appropriate treatment and protection from abuse. In addition, in May
2005, Petitioner had reviewed “Abuse and Neglect and Exploitation Annual Update.” (T pp 5152, R Ex 6) Petitioner specifically agreed to abide by the Whitaker School abuse policies when
she began working there in 1999. (T p 53, R Ex 7) In addition, Petitioner had received training
for John Umstead Hospital abuse policies as well. (T p 55, R Ex 10) . Neither of those policies
includes the term “yelling” as abuse or describe raising one’s voice to a student as abuse.
16.
Petitioner was trained in North Carolina Interventions (NCI). (T p 49) Petitioner
understands that the purpose of NCI is to protect you and the student from harming themselves
or others, and if other staff sees a situation escalating, they are to intervene. (T p 49. In fact, the
purpose of NCI is to de-escalate situations where the student is losing emotional control. (T pp
50-51). NCI was not presented to Petitioner as a disciplinary policy nor were Petitioner or others
warned that a failure to “remain calm” or fail to use certain tones per the NCI was a violation of
work rules that could lead to disciplinary action. T. 212, 281
17.
Student SS, with whom the incident with Petitioner took place, did not testify at the
hearing nor was any statement from SS placed into evidence. SS had feigned emotional distress
in the past – “very much so” according to Kester – and did so believably. T. 90, 279.
18.
On January 5, 2006, the date of the incident at issue, SS had come from a home visit the
night before, and was a little irritable or tired. They went down to the schoolroom, had class, and
SS did not want to complete her work, but wanted to sleep and go to the Quiet Room, which is a
room where staff send students to calm down or think about what they have done. (T p 30) A
coworker gave SS a five-minute time-out where she could lay her head down on the desk. After
her five minutes were up SS repeated the same behavior-- she was tired and did not want to
complete her school work... Petitioner told SS that she needed to listen to the teacher, and that
she was disrupting class, and SS continued to do so, so Petitioner gave her an early bed. (T pp
30-31) An early bedtime, such as given to SS by Petitioner earlier that day, was not an unusual
“consequence,” or tool, at Whitaker School. T. 94.
19.
The group then went upstairs. The students sat in the milieu (a central meeting area)
where they having a meeting led by another staff person, and the children were stating their
agendas (issues with staff members) in an “agenda meeting” while Petitioner was doing
paperwork in the back of the room. SS stated an agenda on Petitioner, that she did not appreciate
Petitioner giving her an early bed. Petitioner listened to the student and “explained to her how
she was acting and demonstrated how she was acting.” Petitioner “asked how did she think it
looked to her peers. . . that another student had gotten an early bed earlier that day for sleeping in
a meeting, and it wouldn’t be fair to that student if they got an early bed and she was doing the
same thing he was doing.” Petitioner acted out for SS examples of how she was acting in a
6
disruptive fashion. T. 277 Petitioner allowed SS to “have her say” on the matter, and that
Petitioner then “had her say” on the matter, as was the usual conduct in agenda meetings. T. 27677. SS showed no emotion while Petitioner undertook this activity.
20.
The agenda meeting was moderated by Tiffany Wilkerson, a former Youth Program
Administrator I (“Wilkerson). Wilkerson did not testify at the hearing. Wilkerson presented a
written statement to Respondent’s personnel investigating the incident (P. Ex. 5). It makes no
mention of Petitioner “shouting,” “yelling,” or raising her voice, and states that the situation with
Petitioner and SS was de-escalated when the student – SS – calmed down. Wilkerson was
present for the entire incident between Petitioner and SS. T. 276, 279.
21.
As the agenda meeting was progressing, Kester approached the milieu area. Kester is
familiar with Petitioner having worked with her for several years at Whitaker School. (T p 74)
He did not directly supervise her. (T p 97) Using Respondent’s Exhibit 19 for illustrative
purposes, Kester testified that he had walked to the kitchen (Room 12) and began a conversation
with a person in the kitchen when he heard loud voices going back and forth and became
concerned that there might be a physical altercation, fight or something that needed intervened.
He went out of the room and saw people still seated – including Petitioner, who did not at any
pertinent time rise from a seated position - so Kester determined that it was not an emergent
situation, but still watched to assess if everything was okay, and then “the arguing kept going
back and forth so it wasn’t de-escalating.” Kester walked down the hallway and following his
entry into the room, SS burst into tears. Kester asked SS to come with him and went to the quiet
room with her. SS was still upset and did not want to talk then, so he told her to cool off and he
would have someone come back to talk to her. Kester walked back across the hallway and spoke
to the unit director, Baker. Kester told Baker what he had done and left. (T pp 75-76, 84)
Kester also sent an email to Baker regarding the incident. (T p 84, R Ex. 13, p 2) This email did
not allege that Petitioner abused SS nor did it allege that Petitioner’s conduct constituted abuse
under any policy. T. 88-89.
22.
Kester did not witness the entire interaction between Petitioner and SS on the date in
question. T. 93.Kester could not say whether SS viewed Petitioner’s voice tone as harmful or
not. T. 84. SS did not begin crying or showing signs of upset, to Kester’s knowledge, until Kester
entered the room and Kester and SS made eye contact. T. 93. Kester stated that his appearance
could have triggered the hysterical outburst by SS.Kester accompanied SS to the “QR,” or quiet
room, and left shortly thereafter; he did not know what transpired between Petitioner and SS
following that time. T. 95.Kester did not speak to Petitioner following the immediate incident,
nor did he follow up with Petitioner following the immediate incident. T. 98. Kester did not
know and never learned what Petitioner and SS were discussing at the time Kester entered the
room. T. 101. Kester stated that he “intervened” in this incident for the benefit of both parties;
however, intervention is a common practice at Whitaker School and does not in itself indicate an
abusive act on Petitioner’s part. T. 103-104. Following Kester’s intervention the situation “deescalated promptly.” T. 104.
23.
At approximately the same time as Kester approached the milieu area, and the agenda
meeting was going on, Baker had just left his office which is located on the boys side of the
Eagle Lodge. He saw Kester and another staff person and asked, “What was that loud noise?”
7
(T p 180) He walked down the hall with Kester, and at the kitchen decided to they needed to
investigate. He saw Petitioner sitting at a table and the loud noise, which was yelling, was
coming from her. Petitioner was seated at the time Baker saw her, did not rise from her seat, and
did not approach SS or ‘get in her face.’ T. 220. Because there was a group there, they decided
that it would be disruptive if more than one person went into the situation, so Kester went down
and Baker went into the kitchen. Baker then heard a student yelling hysterically. It was a very,
very loud crying type of yell, like wailing. When Kester cam back, he gave Baker an assessment
of what he saw and what the noise was in detail. (T p 181) The sound was very unusual because
the voice level was really escalated. (T p 182). The tone was “argumentative.” It went on for a
couple of minutes. Baker could not see SS, but could see Petitioner. (T p 183-184)
24.
When Kester came back, he reported what he saw to Baker (T p 185). Baker then notified
the student advocate. The student advocate, Michael Bramwell, did not testify at the hearing. He
did not interview Petitioner about the incident with SS. Likewise neither Baker nor Kester, nor
Bram well nor Newnam, interviewed Petitioner or obtained her version of the facts prior to her
dismissal (or, in Newman’s case, reporting Petitioner to NC DHHS Facility Services and DSS).
T. 271.
25.
Neither Baker nor Kester could hear any exact words spoken to SS by Petitioner. Neither
Kester nor Baker spoke to Petitioner at the time they entered the room or inquired as to what had
occurred. T. 279. Following about a five-minute period in which SS calmed down, Petitioner got
SS her lunch and sat with her while she ate it, with no problems. T. 279-280. Baker made no
attempt to separate Petitioner from SS, nor did Kester. Petitioner worked with SS without
incident for another four or five hours that day, and that Baker, who was aware of this, made no
attempt to separate Petitioner from SS that day. T. 280-281. Over the weekend, Baker contacted
Petitioner and told her not to work around SS until further notice.
26.
Newnam initially testified that he contacted the Granville County Department of Social
Services (“DSS”) about the incident between Petitioner and SS within five days of its
occurrence. T. 145. However, on the “Five Working Day Report” Newnam submitted to the NC
DHHS Division of Facility Services on the incident, Newnam indicated that he had not reported
the incident to DSS. T. 144. Further, the “Five Working Day Report” was actually filed with
Facility Services weeks, not days, after the incident took place. T. 144. Newnam’s contact with
DSS was via a telephone call, for which he made no documentation of any kind. T. 143. The
DSS employee to whom he spoke informed him that Petitioner’s conduct did not constitute abuse
under DSS protective services standards. T. 145-46.
27.
DHHS Facility Services, which investigates allegations of abuse and neglect by health
care personnel in North Carolina, responded to Newnam’s allegations about Petitioner by
declining to conduct an investigation of them following its initial screening process (and
considering them closed), nor did it substantiate the allegations. T. 146-148. Newnam knew that
if he or Whitaker School disagreed with DHHS Facility Services’ determination of declining to
investigate Petitioner’s actions as abuse, they could contact Facility Services regarding that
disagreement. Neither did so. T. 149.
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28.
The students at Whitaker School trusted Petitioner. T. 262. SS herself asked after
Petitioner’s whereabouts on more than one occasion following Petitioner’s dismissal (of which
SS was not aware), and that SS “missed” Petitioner. T. 264. Further, Petitioner, on her own time,
had previously taken SS on trips off of the campus to shop and get her hair done.
29.
Baker and his own supervisor, Phyllis Timberlake, decided that Petitioner’s conduct
deserved a written warning. T. 190. However, Baker testified that he and Timberlake decided to
dismiss Petitioner because she had a previous written warning. T. 190.
30.
There was no intent on Petitioner’s part to use “harsh” tones with SS or to abuse SS.
Petitioner had been having difficulty speaking in moderated tones because of her rhinitis, which
irritated the mucus membranes in her throat and caused her, as Anderson testified, to “blurt” out
words and phrases. Petitioner authenticated a statement from her physician confirming this
condition, which was admitted into evidence and was additionally confirmed by Anderson, who
witnessed Petitioner having this difficulty. T. 262-267. Petitioner testified that she did not yell at
SS, did not engage in abusive conduct, and did not intend to do so.
31.
Anderson, an eleven-year employee of Whitaker School, had never been taught or
informed that it was considered abuse to raise one’s voice or be “argumentative” with a student,
nor had she heard of any staff member being terminated for such or for “yelling” or raising one’s
voice around a student. T. 257.
Based on these findings of fact, the Court makes the following
CONCLUSIONS OF LAW
1.
The Office of Administrative Hearings (OAH) 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 will make
a final decision. The parties received proper notice of hearing and this matter is properly before
the Court for decision.
2.
The burden of proof for showing that Respondent had just cause to dismiss Petitioner
from employment lies with the Respondent. Respondent has the burden of proof to show just
cause in by a preponderance of the evidence. Respondent’s contention is that Petitioner
“abused” a student, thus committing unacceptable personal conduct.
3.
A state agency has just cause to dismiss an employee on the basis of unacceptable
personal conduct. 25 N.C.A.C. 01J .0604 Employees may be dismissed for a current incident
of unacceptable person conduct without any prior disciplinary action. 25 N.C.A.C. 01J .0608
Unacceptable Personal Conduct is defined to include the “abuse of client(s), patient(s), student(s)
or a person(s) over whom the employee has charge or to whom the employee has responsibility”.
25 N.C.A.C. 01J .0614.
9
4.
There is a state standard for “abuse” in North Carolina. North Carolina adopted the
Federal definition of “abuse” as its own. Allen v. DHHS, 155 N.C. App. 77, 573 S.E.2d 565,
cert. denied, 357 N.C. 163, 580 S.E.2d 358 (2003).
5.
That definition, as set forth in Allen, defines “abuse” as “The willful infliction of injury,
unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or
mental anguish.” Id. See also 42 CFR, Part 888, Subpart E.
5.
The Respondent did not prove that Petitioner willfully inflicted injury, unreasonable
confinement, or any of the other factors mentioned in the definition upon student SS. Nor did SS
so allege, as she was not called to testify and no statement from her was admitted into evidence.
6.
Further, SS, after calming down, sat quietly with Petitioner and ate her lunch, and then
spent the next four to five hours in close proximity to Petitioner without incident. And, SS
missed Petitioner and asked after her whereabouts on more than one occasion.
7.
This does not appear to be the behavior of one abused toward her abuser, or of one
suffering “mental anguish” as a result of Petitioner’s conduct. Moreover, the Court cannot ignore
the substantial evidence that SS had, in the past, engaged in convincing, but staged, “emotional
distress” in the presence of witnesses for both sides of this case. This makes the absence of any
statement from SS indicating that Petitioner’s conduct caused her real distress more significant
than it might otherwise be, given there was no evidence presented that SS was incompetent or
otherwise unable to testify or make a statement in this case. Moreover, with respect to proof
issues, the Court notes the utter absence of any testimony from Tiffany Wilkerson, who
apparently witnessed the entire incident between Petitioner and SS, and whose written statement
makes no allegation of Petitioner yelling or even raising her voice at SS, or using harsh tones.
8.
Further evidence that this matter did not constitute “abuse” by Petitioner lies in the fact
that DHHS Facility Services not only failed to substantiate Newnam’s allegation of abuse against
Petitioner, but closed the allegation after the initial screening process; i.e., without opening a
formal investigation. Granville County DSS also informed Newnam that Petitioner’s conduct
was not “abuse” under the same protective services standards set forth in DHHS Directive 61
(below).
9.
As an agency, Respondent itself, through DHHS Directive 61, copies of which were
admitted into evidence at the hearing, employs the abuse definition listed above. This is of
importance due to the fact that, while under Respondent’s Disciplinary Action Policy
unacceptable personal conduct does include “the abuse of clients, patients, students, or persons
over whom the employee has charge or to whom the employee has a responsibility, or an animal
owned by the state” (DHHS Policies and Procedures, Section V, Disciplinary Action, p.6.).
directly below that section, such conduct (abuse) is listed as: “Patient, client, resident, and
student abuse and neglect as defined by agency policy.” Id., p. 6 subsection 14(E). Agency
policy, in this case, clearly is the policy cited above, and which Respondent failed to prove
Petitioner violated.
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10.
Respondent argues that despite all this, Petitioner may be properly dismissed in this case
for violating Whitaker School’s abuse policy. The Court disagrees.
11.
First, the Court observes that Respondent appears (given the existence of the policies
above) to be “searching” for a policy it can claim that Petitioner violated, thus justifying her
dismissal. Hence Respondent’s arguments about the NCI policy, which has apparently never
been presented as a disciplinary policy – and in all sense cannot be one, as it would then justify
dismissal on unacceptable personal conduct grounds for any staff member who, for instance,
failed to “remain calm” on a certain day.
12.
Respondent is left, then, with its contention that Petitioner may be dismissed under the
Whitaker School policy for abuse, neglect, and exploitation, on the grounds that Petitioner’s
conduct constituted actions that “curse, bait, tease, or humiliate, by conversing, acting, or
gesturing in a manner demeaning to the student.”
13.
Assuming arguendo that Petitioner can be dismissed for violating this policy, there is no
evidence that Petitioner cursed SS, or baited her or teased her. Both Baker and Kester, the
witnesses who witnessed part of the exchange between Petitioner and SS, testified that they did
not hear Petitioner’s specific words to SS, and, as noted, there was no evidence presented on this
point from SS herself. As for “humiliating” and “demeaning,” once again SS did not so state, nor
did Respondent present even hearsay testimony that other than the initial crying SS engaged in
upon seeing Kester enter the room, SS was adversely affected at all. And, following a period of
upset that lasted less than ten minutes, she quietly sat with Petitioner and ate her lunch.
14.
The court notes Baker and Kester’s description of Petitioner as using an “argumentative”
tone with SS. However, this is subjective impression of Petitioner’s intent – and one that
Petitioner denies. There is no evidence that career personnel at Whitaker School would expect to
be dismissed for violation of known or written work rules due to a subjective impression of an
“argumentative” tone, especially when, as here, the actual words spoken by Petitioner herself
remain a mystery other than Petitioner’s own testimony that both sides had their say and that
Petitioner demonstrated SS’s conduct to her. At least one witness in addition to Petitioner,
Anderson, testified that she had never heard of employees being disciplined or subject to
discipline under such subjective standards. Finally, the Court notes the utter absence, again, of
any evidence that Petitioner intended to abuse SS either verbally or non-verbally.
15. “Determining whether a public employer had just cause to discipline its employee requires
two separate inquiries; first, whether the employee engaged in the conduct the employer alleges,
and second, whether that conduct constitutes just cause for the disciplinary action taken.” N.C.
Dep’t of Env’t & Natural Resources v. Carroll, 358 N.C. 649, 665, 599 S.E.2d 888, 898 (2004);
Early v. County of Durham Dep’t. of Social Services, 172 N.C. App. 344, 616 S.E.2d 553
(2005). Under the evidence presented, Petitioner did not engage in the conduct alleged by the
Respondent, as the evidence fails to show that Petitioner “abused” SS or had any intention of
doing so.
16. In conclusion, the Court holds that Respondent failed to meet its burden of proof in this case
that Petitioner was dismissed for “abuse” of a student at Whitaker School. While a finding that
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the Petitioner abused SS would indeed constitute unacceptable personal conduct, Respondent did
not meet its burden of proof in showing such abuse actually took place, or that Petitioner’s
conduct generally in this incident constituted unacceptable personal conduct.
DECISION
As Respondent did not meet its burden of proof, and did not have just cause to dismiss Petitioner
based on the evidence, its decision to dismiss Petitioner for just cause is REVERSED, and it is
recommended that the State Personnel Commission:
1. Direct that Respondent reinstate Petitioner in employment with Respondent at
Whitaker School in the position of YPA II.
2. Direct that Respondent shall pay to Petitioner back pay accruing from the date of
Petitioner’s dismissal (January 20, 2006) through her date of reinstatement.
4. Direct that Respondent shall reimburse Petitioner for costs of this action, including
reasonable attorney’s fees.
NOTICE
The Agency that will make the final decision in this contested case is the North Carolina
State Personnel Commission.
The Agency is required to give each party an opportunity to file exceptions to the
recommended decision and to present written arguments to those in the Agency who will make
the final decision. N.C. Gen. Stat. § 150-36(a). The Agency is required by N.C. Gen. Stat. §
150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the
parties’ attorney of record and to the Office of Administrative Hearings.
In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact
contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the
preponderance of the admissible evidence. For each finding of fact not adopted by the agency,
the agency shall set forth separately and in detail the reasons for not adopting the finding of fact
and the evidence in the record relied upon by the agency in not adopting the finding of fact. For
each new finding of fact made by the agency that is not contained in the Administrative Law
Judge’s decision, the agency shall set forth separately and in detail the evidence in the record
relied upon by the agency in making the finding of fact.
This the 29th day of December, 2006.
____________________________
Beryl E. Wade
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Administrative Law Judge
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