State of North Carolina s35






Petitioner, )






Respondent )

THIS MATTER came on for hearing before Beecher R. Gray, Administrative Law Judge, on March 6, 2006, in Albemarle, North Carolina.


Petitioner: Destrik A. Burns, appearing pro se

229-C South Morrow Ave.

Albemarle NC 28001

Respondent: Neil Dalton

Assistant Attorney General

N. C. Department of Justice

P. O. Box 629

Raleigh, North Carolina 27602


1) Whether Petitioner’s dismissal from a Correctional Officer position for just cause is supported by the evidence.


Respondent’s Exhibits Nos. 1-25, 27-30


1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.

2. At the time of his termination, Petitioner was a Correctional Officer at Albemarle Correctional Institution, [Albemarle].

3. Albemarle is a North Carolina prison housing approximately 850 inmates, many of whom are dangerous felons. At the time of the discharge of Petitioner, Jennifer Langley was the Administrator of Albemarle. Testimony of Jennifer Langley.

4. For the safety and security of the inmate population as well as the prison staff, it is important that correctional officers remain alert at their posts at all times. Testimony of Jennifer Langley, William Efird, Susan Luther, Martin Deaton.

5. Each post assignment for correctional officers has a list of Post Orders. The Post Orders for each position includes remaining alert at all time. Testimony of Jennifer Langley; Respondent’s Exhibit [R. Ex.] 27.

6. Correctional officers on the night shift at Albemarle are frequently reminded at shift line up to remain alert, and to ask for relief if they get sleepy. Additionally, officers, including Petitioner, were advised to request relief if they get sleepy by their sergeants at times outside of the line up. Petitioner never told his supervisor that he was sleepy and needed relief. Testimony of William Efird, Lynn Ritter, Martin Deaton.

7. Petitioner was terminated from his position as a correctional officer for two incidents of failure to remain alert amounting to Grossly Inefficient Job Performance occurring on November 24, 2004, and November 27, 2004. Testimony of Jennifer Langley; R. Ex. 15.

8. On November 24, 2004 at approximately 12:25 a.m., Sergeants Efird and Luther were making a security check of the Tillery Housing Unit at Albemarle. There they observed Petitioner in the control room with his head down on his arms snoring, apparently asleep. They observed Petitioner in this position for approximately 5-6 minutes before waking him. After waking him, Petitioner appeared disoriented. They reported the incident to Captain Ritter who ordered Petitioner relieved and escorted to Captain Ritter. Testimony of William Efird, Susan Luther, Lynn Ritter.

9. From his post in the control room of Tillery Housing Unit, Petitioner had electronic control of the doors going in and out of the facility, as well as interior doors. In addition, from this post, the entire dormitory could be observed, including inmates in their sleeping areas. On the night in question, another correctional officer, Jackie Nash, had the responsibility of patrolling the dormitory while Petitioner was manning the control booth. If an incident arose, it would be up to Petitioner in the control booth to summon assistance and allow assisting officers in or out and to various locations in the Tillery Housing Unit. Testimony of William Efird, Jackie Nash; R. Ex. 29.

10. Just minutes before Sergeants Efird and Luther arrived in Tillery at 12:25 a.m., Jackie Nash had just found Petitioner asleep in the control room and had awakened him. He was concerned for his own safety because Petitioner in the control booth was providing security for him as well as the inmate population. He asked Petitioner if he wanted to walk around for a while and get fresh air. Petitioner assured Mr. Nash that he was able to stay awake. Mr. Nash then went to get a cup of coffee. A few minutes later when he returned to the Tillery Housing Unit, Officer Nash saw Sergeants Efird and Luther observing Petitioner while he was asleep. Testimony of Jackie Nash.

11. Petitioner was administratively reassigned to the Institution Team while the Respondent conducted its investigation of the November 24th incident. Although important, the Institution Team assignment involved keeping the shift log and observing perimeter fences which was considered less crucial than dormitory supervision. Testimony of Lynn Ritter; R. Ex. 3.

12. On November 27, 2004 at approximately 4:45 a.m., Petitioner was working in the Operations Control Center as an assignment on the Institution Team. Petitioner was observed by both Captain Ritter and Sergeant Efird for three to four minutes with his chin down on his chest, not moving, not alert, and apparently asleep. Testimony of William Efird, Lynn Ritter, R. Ex. 9,

13. Both the November 24th, 2004 and the November 27th, 2004 incidents were investigated by Captain Ritter. Petitioner did not deny being non-alert on either occasion to Captain Ritter verbally, or in his written statements concerning these incidents, in his grievance hearing, or at the Contested Case Hearing. Testimony of Lynn Ritter, Jennifer Langley; R. Exs. 4, 8, 16, 23.

14. Petitioner previously had been given written warnings on April 14, 2004 and October 6, 2004 for failure to remain alert. Each written warning concerned two incidents that occurred in close proximity to each other. Petitioner did not deny that he had not been alert for any of these incidents. Testimony of Jennifer Langley, R. Exs. 1-2.

15. Respondent contemplated discharging Petitioner in October of 2004 for two failure to remain alert incidents. At his pre-disciplinary conference however, Petitioner stated that his failure to remain alert was due to his condition of sleep apnea. Petitioner asserted that he was currently being treated for this problem and that he thought he could remain awake. Petitioner was told that he would be given another chance and that he should advise the Superintendent or Assistant Superintendent if they could do anything to assist him. It is the usual practice in the North Carolina Department of Correction that staff members receive one or two written warnings for failure to remain alert and then are discharged the next time. Testimony of Jennifer Langley.

16. After Petitioner was caught sleeping on November 24, 2004, (the 5th time he had been found to be non-alert) he requested a different shift in writing dated November 26, 2004. It was the very next night that Petitioner was found to be non-alert for the 6th time. R. Ex. 21.

17. Prior to the November 24th and 27th incidents, Petitioner was urged by Captain Ritter, Officer Nash, and Sergeants Efird and Deaton, to seek a different shift that has more movement and activity. Petitioner rebuffed all such advice and maintained that he preferred the 6 p.m. to 6 a.m. shift because it was more laid back. Testimony of William Efird, Lynn Ritter, Jackie Nash, Martin Deaton.

18. Petitioner confided to Captain Ritter that he had slept while on duty when he was assigned to the day shift. No evidence was presented at the hearing that Petitioner would have stayed alert had he been assigned to a day shift. Testimony of Lynn Ritter.

19. By Respondent’s policy, an example of Grossly Inefficient Job Performance is the failure to remain alert on a post. R. Ex. 19.


1. The parties properly are before the OAH.

2. Petitioner is a Career State Employee subject to the provisions of the State Personnel Act, N.C.G.S. § 126-1, et seq.

3. 25 N.C.A.C 1J .0614 defines Grossly Inefficient Job Performance as: A type of unsatisfactory job performance that occurs in instances in which the employee fails to satisfactorily perform job requirements as specified in the job description, work plan, or as directed by the management of the work unit or agency; and, that failure results in:

(1) 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;

4. From his post orders, prior written warnings, and repeated cautions from supervisors, Petitioner had more than adequate notice of the need to remain alert and to stay awake on his post.

5. By failing to remain alert on both November 24th and 27th 2004 at his post at Albemarle, Petitioner engaged in grossly inefficient job performance by causing: “(1) the creation of the potential for death or serious bodily injury to employee(s) and to members of the public or to a person(s) over whom the employee has responsibility.” 25 N.C.A.C. 1J 0614(f).

6. Grossly inefficient job performance is just cause for dismissal. 25 N.C.A.C. 1J .0604. Petitioner’s dismissal was with just cause.


Based upon the foregoing findings of fact and conclusions of law, I find that Respondent’s decision to dismiss Petitioner from his correctional officer position for Grossly Inefficient Job Performance in the form of repeatedly sleeping on the job while serving in a medium security correctional housing unit is supported by the evidence and is affirmed.


It is hereby ordered that the agency serve a copy of the FINAL DECISION on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with N.C. Gen. Stat. § 150B-26(b).


The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-36(b). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency making the final decision is the North Carolina State Personnel Commission.

This the 10th day of March, 2006.


Beecher R. Gray

Administrative Law Judge