STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
01 OSP 1741
COUNTY OF HALIFAX
Gladys Faye Walden
Petitioner
)
)
)
)
)
)
)
vs.
N. C. Department of Correction
Respondent
DECISION
On April 15 and 16, 2002, Chief Administrative Law Judge Julian Mann, III, heard this
contested case in Halifax, North Carolina. Administrative Law Judge James L. Conner, II
conducted a post hearing settlement conference on May 30, 2002. Judge Conner reported in the
record that this conference was unsuccessful.
APPEARANCES
For the Petitioner:
Gladys F. Walden, Pro se
P.O. Box 61
Tillery, NC 27887
For the Respondent: Ann Stone
Assistant Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602
STATUTES, RULES & POLICIES IN ISSUE
25 NCAC 1J.0608
25 NCAC 1J.0614
N.C. Gen. Stat. Section 126-1.1
N.C. Gen. Stat. Section 126-35
N.C. Gen. Stat. Section 126-36
N.C. Gen. Stat. Section 126-37
N.C. Gen. Stat. Section 126-38
N.C. Department of Correction, Personnel Manual
Office of State Personnel, Personnel Manual
ISSUE
1.
Did Respondent meet its burden of proof that it had just cause to dismiss Petitioner in
accordance with N.C.G.S. Section 126-35?
2.
Did Petitioner meet her burden of proof that she was retaliated against because she had
previously filed a complaint with the North Carolina Department of Correction alleging sexual
harassment?
WITNESSES
Petitioner presented the following witness: Petitioner, Anthony Carter, William Mayo,
Harry Debrow, Rickie Robinson, Daryl Mitchell, Albert Jones, Gary Grant, and Petitioner.
Respondent presented the following witnesses: Randall Lee, Franklin Barnes, Timothy
Gordon, Betty Daughtry, Steven Pierce, Louis Wiggins, Lawrence Solomon, Grady Massey, and
Hinton Alston.
EXHIBITS
The following exhibits were offered and admitted into evidence by Petitioner:
P1
P2
P3
P4
P5
P6
P7
P8
P9
P10
5-19-98
5-08-01
6-19-01
1-23-97
Written Warning
Logbook entries
Briefing Report
SOP’s - Medication Call
DOC Personnel Manual, Sec. 6, p. 11
Time Line
DOC Personnel Manual, Sec. 6, p. 3
Sexual Harassment Policy
Memo from Superintendent Lee to Staff
Notice of Claim and Request for Separation Information
The following exhibits were offered and admitted into evidence by Respondent:
R1
R2
R3
R4
R5
R6
R7
R8
R9
R10
R11
R12
R13
R14
R15
7-02-01
5-18-01
5-14-01
6-13-01
5-14-01
5-13-01
5-16-01
5-17-01
6-13-01
6-14-01
2-03-00
4-18-00
3-08-01
2-10-01
Dismissal Letter
Internal Investigation Memo
NCDOC Internal Investigation Form
NCDOC Internal Investigation Form
Statement of Sgt. Steven Pierce
Statement of c/o Timothy Gordon
Statement of c/o Betty Daughtry
Statement of Lt. Franklin Barnes
Memo from Cpt. Louis Wiggins to Randall Lee
Memo from Lt. Lord to Lawrence Solomon
Petitioner’s Complaint Filed with NCDOC EEO
Memo from Cpt. Alston to Superintendent Lee
Letter from Cheryl Fellers to Petitioner
Petitioner’s Written Warning
Internal Investigation Form signed by Petitioner
2
R16
R17
R18
R19
R20
3-02-01
R21
R22
R23
R24
R25
6-11-01
6-27-01
6-14-01
6-19-01
2-3-00
Internal Investigation Form signed by Petitioner
Standard Operating Procedure, re: Form 141
Pre-Disciplinary Conference Memo from Superintendent Lee to Petitioner
Recommendation to Dismiss
Memo from Superintendent Lee to Cheryl Fellers re: Environmental
Harassment
Memo from Superintendent Lee to Mr. Solomon re: Investigation
E-mail from Glenn Perry to Jennie Lancaster
DOC Personnel Manual, Sec. 6, p. 38
Office of State Personnel, Personnel Manual, Sec. 3, p. 6
DOC Personnel Manual, Sec. 3, p. 9
STIPULATIONS
Petitioner and Respondent entered into stipulations which are recited in the record of this
contested case.
Based upon the stipulations of record and by the preponderance of the admissible
evidence, the undersigned makes the following:
FINDINGS OF FACT
1.
Petitioner had been employed as a correctional officer (“c/o”) with the North Carolina
Department of Correction (“NCDOC”) at Caledonia Correctional Institution (“CCI”) for five and
half years. At the time of her dismissal on July 2, 2001, Petitioner was assigned to work in Unit
1 and had worked in this unit for the last four and a half years at CCI. (T p. 303).
2.
There are 424 staff members and 698 inmates at CCI. It is a paramilitary organization.
Because of the potentially dangerous nature of a maximum penal institution, a superior’s
instructions given to a subordinate must be followed explicitly.
3.
Unit 1 is a segregated unit with each inmate assigned to one cell. There are 6 blocks in
segregation and 24 inmates assigned to each block. It is a maximum custody unit. Some of the
most potentially dangerous inmates are incarcerated in Unit 1. Seemingly routine situations can
escalate quickly into volatile confrontations between staff and inmates. (T p. 21, 22, 45, 112,
132, 133).
4.
On March 8, 2001, Petitioner received a written warning for unacceptable personal
conduct for discussing an internal investigation after she had signed the NCDOC Internal
Investigation Form indicating she would not discuss it with anyone. (T p. 22, 73, 74,
Respondent’s Exhibit 14).
5.
Petitioner was dismissed for insubordination and failure to provide complete and accurate
information regarding the investigation. Dismissal can result upon establishment of either
ground. (T p. 23-26, Respondent’s Exhibit 1).
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6.
According to the DOC Personnel Manual, Section 6, p. 38, the following causes are
examples of Personal Conduct that would warrant discipline:
9.
Refusal to accept a reasonable and proper assignment from an
authorized supervisor. Insubordination: Refusal to follow the
orders of a superior or supervisor; or refusal to follow established
policy or practice.
22.
Failure to cooperate with Federal, State, Local, or Departmental
officials or hindering internal/external investigations.
(T pp. 23, 24, Respondent’s Exhibit 23).
7.
On May 8, 2001, from 5:45 p.m. to 6:00 a.m., Lt. Franklin Barnes was on duty. As he
was making his rounds on Unit 1, C block, Inmate McNeil of cell 5 inquired about his PRN
medication. An hour had passed since any staff members had responded to him concerning his
medication. (T pp. 37, 38, 268).
8.
All members of the staff assigned to Unit 1 were in the downstairs sergeant’s office. Lt.
Barnes asked the staff if anyone knew the status of Inmate McNeil’s medication. C/O Timothy
Gordon replied that the nurse had informed him that the medication had been discontinued. Lt.
Barnes asked who was assigned to block C and the c/o’s acknowledged that it was Petitioner. (T
pp. 37, 38, 50, 56).
9.
At 1:45 a.m., Lt. Barnes instructed Petitioner to go onto the Unit and inform Inmate
McNeal of the status of his medication. Petitioner responded in a manner that indicated a lack of
urgency to immediately respond to the directive given to her by a superior. Petitioner replied: “I
will when I finish my paperwork.” Lt. Barnes immediately sensed the disregard and again
instructed Petitioner to inform the inmate about the status of his medication within the next five
minutes. Petitioner replied again in the same manner: “I will when I finish my paperwork.” (T
pp. 38, 39, 40, 44, 50, 56).
10.
Lt. Barnes, not wanting to create a confrontation in the presence of other staff, walked
upstairs to the sergeant’s office and directed Sgt. Steven Pierce to call Petitioner and instruct her
to come to the sergeant’s office. Petitioner responded: “I will when I finish my paperwork.” (T
pp. 39, 50, 57, 61).
11.
Lt. Barnes waited five to seven minutes in the sergeant’s office before he departed.
Petitioner did not report to the sergeant’s office until ten to twelve minutes after Sgt. Pierce
called her. It would have taken Petitioner one minute to walk from Unit 1 to the sergeant’s
office. (T p. 39, 47, 48, 61).
12.
On May 8, 2001, Petitioner was filling out form 141 - Daily Report on Segregated
Inmates. Significant events such as medical attention, meals, showers, and any actions
warranting staff interventions concerning an individual inmate are documented on these forms.
(T p. 41).
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13.
At 1:45 a.m., Petitioner would have been documenting if the inmates appeared to be
asleep. At that time of night it would take from five to ten minutes to complete Form 141. Staff
members do not have to complete Form 141 every hour. (T pp. 42, 43, 44).
14.
Petitioner told Inmate McNeil the status of his medication at 2:10 a.m. (T p. 315).
15.
Inmate McNeil is a known “door-banger.” At times he becomes violent. Situations that
may seem minor in other institutional settings may become high risk factors in a maximum
custody prison setting. If inmates do not receive responses quickly to legitimate inquiries,
sometimes they will beat and bang on the cell doors, flood their cells, assault staff, and even may
set fires. Correctional staff must respond quickly to legitimate inquiries to keep an incident from
escalating. (T pp. 140, 141, 217, 222, 254, 263, 272).
16.
Cpt. Louis Wiggins conducted the internal investigation concerning the accusations
against Petitioner. He has conducted 75 or more investigations. By policy, the NCDOC Internal
Investigation Form has to be signed before Respondent can take a statement from anyone when
they are conducting an investigation. (T p. 69, 70).
17.
Cpt. Wiggins met with Petitioner on May 14, 2001 and gave her the NCDOC Internal
Investigation Form to read and sign. Petitioner refused to sign it.
18.
After Superintendent Randall Lee received the entire investigation report, he rejected
taking further steps because he wanted to be sure Petitioner clearly understood the charges
against her and the ramifications of what could happen if she did not participate or provide
information regarding this investigation. (T pp. 25, 26, Respondent’s Exhibit 21).
19.
Superintendent Lee’s memo to Assistant Superintendent Lawrence Solomon dated June
11, 2001, provides, in part:
Please instruct Captain Wiggins to meet with Petitioner again and
specifically inform her that an internal investigation is being conducted
regarding her actions on May 8, 2001. Captain Wiggins should reiterate to
Petitioner that by providing a statement she is telling her side of the story
and assisting in conducting a complete investigation. If Petitioner
continues to refuse to make a statement and read and acknowledge by
signature the internal investigation form, ensure that she understands that
as part of the internal investigation she is expected to cooperate with
officials and that the penalty for refusing to answer questions may be
dismissal.
(Respondent’s Exhibit 21).
20.
Cpt. Wiggins met with Petitioner again on June 13, 2001. He gave Petitioner the
NCDOC Internal Investigation Form and read it to her. She still refused to sign it. (T pp. 6567).
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21.
Mr. Solomon discussed the NCDOC Internal Investigation Form with Petitioner. He told
her that she could receive disciplinary action up to and including dismissal for hindering an
internal investigation. Petitioner refused to sign it. (T pp. 72, 73, 78).
22.
During the pre-dismissal conference on June 19, 2001, Superintendent Lee went over the
charges with Petitioner. He asked her what happened. She would not provide any information.
(T p. 28, 29).
23.
Respondent gave Petitioner several opportunities to provide information and she would
not, so Superintendent Lee made his decision based on the information that was presented to
him. He made his decision after the pre-dismissal conference. (T pp. 30, 31, 101).
24.
Petitioner filed a complaint alleging environmental harassment with NCDOC Equal
Employment Opportunity Office (“EEO”) on June 26, 2000, complaining that staff members
were spreading rumors about her and Sgt. Clarence Jones. (T pp. 31, 32, 323, Respondent’s
Exhibit 11). Numerous staff members at CCI have seen Petitioner and Sgt. Clarence Jones
together outside of work. Petitioner testified that they are dating now. (T pp. 45, 51, 62, 76,
323).
25.
Petitioner received a letter from Cheryl Fellers, EEO/Title VII Director, stating that her
allegations did meet the definition of sexual harassment. (T pp. 32, 33, Respondent’s Exhibit 13).
26.
Petitioner provided no credible evidence that linked her dismissal with the filing of her
complaint alleging environmental harassment.
CONCLUSIONS OF LAW
1.
The parties are properly before the Office of Administrative Hearings and the Office of
Administrative Hearings has personal and subject matter jurisdiction over the parties and this
contested case.
2.
The Petitioner was a career State employee at the time of her dismissal. Respondent has
the burden of proving that it had just cause to dismiss Petitioner on the grounds as alleged and
found herein which are unrelated to discrimination or retaliation. N.C.G.S. § 126-35(d).
Respondent carried its burden of proof by the preponderance of the evidence. N.C.G.S. § 12635(d). Petitioner has the burden of proving that she was dismissed based on retaliation for filing
a complaint with the NCDOC EEO. Petitioner did not carry her burden under any legally
sufficient proof scheme. No causal connection was established by Petitioner between her
dismissal and the filing of a sexual harassment charge nor was there evidence of pretext in the
actions taken by Respondent.
3.
An employee may be dismissed for unacceptable personal conduct without any prior
disciplinary action. 25 NCAC 1J.0608(a).
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4.
Unacceptable personal conduct is:
(4) the willful violation of known or written work rules.
25 NCAC 1J.0614(i).
5.
Insubordination is the willful failure or refusal to carry out a reasonable order from an
authorized supervisor. Insubordination is considered unacceptable personal conduct for which
any level of discipline, including dismissal, may be imposed without prior warning. 25 NCAC
1J.0614(h).
6.
N.C.G.S. § 126-35 provides, in part:
No career State employee subject to the State Personnel Act shall
be discharged, suspended, or demoted for disciplinary reasons,
except for just cause.
7.
DOC, Personnel Manual, Section 6, p. 38, provides, in pertinent part:
The following causes are examples of Personal Conduct:
9.
Refusal to accept a reasonable and proper assignment from
an authorized supervisor. Insubordination: Refusal to
follow the orders of a superior or supervisor; or refusal to
follow established policy or practice.
22.
Failure to cooperate with Federal, State, Local, or
Departmental officials or hindering internal/external
investigations. (Respondent’s Exhibit 23).
8.
On May 8, 2001, Petitioner was insubordinate in her failure to immediately follow the
directives of her supervisors, Lt. Barnes and Sgt. Pierce. She did not respond promptly when
given a reasonable directive to accomplish an assigned task. Petitioner could have paused from
her paperwork, informed the inmate of his medical status, and then completed her paperwork. It
could have taken less than two minutes for Petitioner to inform the inmate about his medical
prescription status. Petitioner could have requested permission from her superior to delay in
responding to the directive, which she did not do. Further, Petitioner failed to follow Sgt.
Pierce’s directive for her to report to Lt. Barnes’ office within the time specified. .
9.
Petitioner was insubordinate for her willful disregard of a legitimate directive given to
her by a superior in the context of her duties directly affecting a potentially dangerous and
disruptive inmate in a maximum security prison. Reasonableness and immediacy of the directive
in this context were legitimate concerns of her superior. Petitioner disregarded the immediacy of
complying with the directive. Petitioner took it upon herself to determine for herself when this
directive was to be carried out and by so doing potentially placed herself and others, including
other inmates, in threat of danger. Because harm did not occur from her delay does not justify
her disregard of the immediacy of the directive in this institutional context. Petitioner's actions
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constituted just cause for her dismissal and was not an arbitrary or capricious action taken by
Respondent. *
10.
Petitioner also failed to cooperate with the internal investigation. During the
investigation, Petitioner was given four opportunities to relate her account of the situation and
sign the NCDOC Internal Investigation Form. This she also failed to do after she was aware of
Superintendent Lee’s call for her to co-operate. Superintendent Lee did not have to delay his
decision and advise Petitioner to cooperate as evidenced by Respondent's Exhibit #21. Petitioner
refused to avail herself of this reprieve which demonstrated a disregard of the directive of the
Superintendent himself. This follows the same pattern of disregard of the legitimate directives
given to her by both Lt. Barnes and Sgt. Pierce. Petitioner's actions constituted just cause for her
dismissal and was not an arbitrary and capricious action taken by Respondent.
11.
Petitioner was not dismissed due to retaliation because she had filed a complaint with the
NCDOC EEO.
DECISION
Based upon the foregoing, Respondent has met its burden of proof that it had just cause
to dismiss Petitioner on the grounds found herein and that Respondent's action in dismissing
Petitioner is hereby affirmed. Petitioner did not meet her burden of proof that she was retaliated
against because she had previously filed a complaint with the NCDOC EEO.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance
with N.C. Gen. Stat. Section 150B-36(b3).
NOTICE
The Office of State Personnel is the agency making the final decision in this contested
case, which is required to give each party an opportunity to file exceptions to this decision and to
present written arguments to those in the agency who will make the final decision. N.C. Gen.
Stat. Section 150B-36(a). This decision will be reviewed by the agency making the final
decision under the provisions of N.C. Gen .Stat. Section 150B-36(b)-(b3).
Questioning the legitimacy of directives from superiors or delaying responses thereto will not in
all contexts justify dismissal. From my observation of Petitioner, she is a very serious
individual, perceptive and caring. In a context other than a maximum security prison setting, I
might find this response as not insubordinate. However, the context of a maximum security
prison cannot here be ignored.
*
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The agency is required by N.C. Gen. Stat. Section 150B-36(b) to serve a copy of the final
decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of
Administrative Hearings.
This the 12th day of July, 2002.
_________________________________
Julian Mann, III
Chief Administrative Law Judge
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