STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF NASH 97 OSP 1408

SADIE B. HARPER, )

)

Petitioner, )

)

v. )

) RECOMMENDED DECISION

EDGECOMBE-NASH MENTAL )

HEALTH SERVICES, )

)

Respondent. )

This matter came on for hearing before Temporary Administrative Law Judge George M. Anderson on November 30, 2000, in Nashville, North Carolina.

APPEARANCES

Petitioner: Sadie Harper-Scott f/k/a Sadie B. Harper, pro se

2964 State Road 26 West

West Lafayette, Indiana 47906

Respondent: Steven A. Rowe

Poyner & Spruill L.L.P.

Post Office Box 353

Rocky Mount, North Carolina 27802-0353

ISSUE

Was Petitioner’s dismissal based on racial discrimination?

EXHIBITS

The following exhibits offered by the Respondent were received in evidence:

R1-A Supervision Documentation Sheets

R1-B Personnel Note, dated May 9, 1997

R1-C Letter from Ms. Adams to Petitioner, dated May 9, 1997

R1-D Memorandum from Ms. Salacki to Petitioner, dated May 29, 1997

R1-E Memorandum from Ms. Hardison to Petitioner, dated June 17, 1997

R1-F Second Written Warning from Ms. Adams to Petitioner, dated June 19, 1997

R1-G Letter from Ms. Adams to Petitioner, dated July 16, 1997

R1-H Summary of Meeting Between Ms. Salacki, Ms. Adams, and Petitioner

R1-I Personnel Note from Ms. Adams to Petitioner, dated July 18,1997

R1-J Letter from Ms. Adams to Petitioner, dated July 21, 1997

R1-K Letter from Ms. Adams to Petitioner, dated August 20, 1997

R1-L Letter from Ms. Adams to Petitioner, dated October 2, 1997

R1-M Decision of Adjudicator Judith A. Monroe of the Employment Security Commission of North Carolina, dated August 9, 1997

R1-N Appeals Decision of Appeals Referee Steven A. Armstrong of the Employment Security Commission of North Carolina

R1-O Transcript of Testimony of September 9, 1997 Hearing before Appeals Referee Steven A. Armstrong of the Employment Security Commission of North Carolina

R1-P Commission Decision of the Employment Security Commission of North Carolina, entered by Jay Parker Chesson, Jr., Chairman, dated December 31, 1997

R1-Q Letter from Ms. Adams to Medicaid, dated October 31, 1997

R2 Respondent’s Personnel Policies

R3 Respondent’s Personnel Policies

R4 Respondent’s Personnel Policies, Petitioner’s Personnel File Documents, and Respondent’s Employee Handbook

R5 Personnel Documents of Former Employees of Respondent (not asked to be admitted into evidence)

R6 Personnel Documents of Former Employees of Respondent (not asked to be admitted into evidence)

R7 Statistical Breakdown of Respondent’s Employees

R8 Decision of the Civil Rights Division of the Office of Administrative Hearings, dated July 28, 2000

R9 Dismissal and Notice of Rights issued by the Equal Employment Opportunity Commission, dated August 17, 2000

Petitioner did not offer any exhibits.

WITNESSES

Petitioner Sadie Harper-Scott, pro se, presented the following witnesses:

None

Respondent presented the following witnesses:

Patricia B. Adams, Area Director for the Respondent

STATUTES AND RULES IN ISSUE

N.C. GEN. STAT. § 126-1.1

N.C. GEN. STAT. § 96-14

25 NCAC 1J.0604

25 NCAC 1J.0605

25 NCAC 1J.0606

25 NCAC 1J.0608

25 NCAC 1J.0610

25 NCAC 1J.0613

STATEMENT OF THE CASE

Petitioner was dismissed from employment with the Respondent on July 18, 1997 due to unsatisfactory job performance and unacceptable personal conduct consisting of her failure to follow the requirements of the corrective action plan and frequent instructions from her supervisor regarding the completion of client progress notes.

Petitioner did exercise her right to appeal her termination, and a conference in regard to same was held on August 14, 1997 with Patricia B. Adams, who is the Area Director for the Respondent. Following the conference, Ms. Adams upheld the termination of the Petitioner. By letter dated August 20, 1997, Ms. Adams informed Petitioner of her decision in regard to same.

On September 3, 1997, Respondent received written notification from Petitioner’s counsel that her client was appealing the termination of her employment to the Personnel Committee of the Respondent. This hearing was held on September 17, 1997. Following the hearing, the Area Board of Respondent upheld the termination of Petitioner. Petitioner was informed of same in a letter dated October 2, 1997 from Ms. Adams.

On November 3, 1997, Petitioner filed a Petition for Contested Hearing with the North Carolina Office of Administrative Hearings (“OAH”). In her petition, Petitioner alleged that she was terminated without just cause and discriminated against on the basis of her race. On November 26, 1997, Respondent filed a Verified Motion to Dismiss and Incorporated Memorandum of Law with the OAH. On December 9, 1997, Petitioner filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). On December 10, 1997, the EEOC issued a Notice of Charge of Discrimination which it served on Respondent. In said Notice of Charge of Discrimination, the EEOC indicated that it was deferring its investigation to the OAH. On January 23, 1998, a hearing was held on Respondent’s Motion to Dismiss before The Honorable Julian Mann, III, Chief Administrative Law Judge. On January 28, 1998, Judge Mann entered an Order in which he denied Respondent’s Motion to Dismiss but stayed the action pending investigation of the EEOC charge by the Civil Rights Division of the OAH. These pleadings are contained in the file maintained by the OAH.

On July 28, 2000, the Civil Rights Division of the OAH issued a Notice of Determination in which it indicated that “Respondent has not violated any applicable statutes in its employment decision”. On August 17, 2000, the EEOC issued a Dismissal and Notice of Rights in which it “adopted the findings of the state or local fair employment practices agency that investigated this charge”.

On October 9, 2000, Senior Administrative Law Judge Fred G. Morrison, Jr. issued a Notice of Hearing which indicated that a hearing was scheduled in this action for November 2, 2000. On October 25, 2000, counsel for Petitioner filed a Motion for Withdrawal and Motion to Continue in this action. In an Order dated October 30, 2000, Temporary Administrative Law Judge George M. Anderson allowed Petitioner’s counsel’s Motion for Withdrawal and Motion to Continue, and continued the matter for hearing until November 30, 2000. At the hearing on November 30, 2000, Petitioner made an oral Motion to Continue the hearing which was denied by Temporary Administrative Law Judge George M. Anderson.

Based upon careful consideration of the testimony and evidence presented at the hearing, the documents and exhibits received into evidence and the entire record in the proceeding, the undersigned makes the following:

FINDINGS OF FACT

1.  The parties both received notice of the hearing at least 15 days in advance.

2.  Petitioner is an African-American female, born on June 2, 1957.

3.  On April 1, 1996, Petitioner was hired by Respondent as a Social Worker III, Willie M Case Manager.

4.  In this position, Petitioner was responsible for coordinating and overseeing services for a group of behaviorally disturbed children know as “Willie M” children. Petitioner was to engage in direct contact with these children, personnel at their schools and other professionals. Furthermore, Petitioner was responsible for documenting the services provided to each child in a formal medical record, so that all care givers for the child could be informed as to the child’s progress and status, and so that Respondent could receive reimbursement and funding for these services from Medicaid and from the State of North Carolina. Respondent required Petitioner to complete both a Service Activity Log (“SAL”) and Progress Notes for each child.

5.  At the time Petitioner was hired as a Willie M Case Manger, Patricia B. Adams, Area Director of the Respondent, knew that Petitioner was an African-American.

6.  At the time she was hired, Petitioner was given an employee handbook which specified that she must keep the documentation described above up to date. Early in her employment, Ms. Harper also received statewide training as well as one-on-one training from her supervisors, Willie M coordinators Karen Salacki and Terry Hardison. In addition, between August and November of 1996, Ms. Harper attended at least part of two half-day training sessions on procedures for completing and maintaining the required progress notes, and she received a packet of information on these topics from these training sessions. R4.

7.  From April, 1996 to September, 1996, Petitioner performed her work in a satisfactory manner, maintaining client contact and completing both the SAL and progress notes. However, beginning in October, 1996, Petitioner stopped completing progress notes. This failure on Petitioner’s part went undetected initially by Petitioner’s supervisors at Respondent, because another employee known as the medical records technician is responsible for filing the documentation completed by the Willie M case managers. In addition, Respondent did not have a supervisor for Willie M services until February 1, 1997. Although Petitioner’s immediate supervisor noticed the missing documentation from client charts in January, 1997, she assumed that Petitioner had completed the documentation, but the medical records coordinator had not yet filed it.

8.  In early March, 1997, Petitioner’s immediate supervisor, Terry Hardison, detected for the first time that Petitioner had failed to complete a significant number of progress notes dating back to October, 1996, and there was a backlog of missing documentation from the medical records of Petitioner’s clients. On March 13, 1997, Ms. Hardison met with Petitioner and discussed the need for her to complete this documentation in a timely fashion. Ms. Hardison gave Petitioner sufficient time to complete this task. R1-A.

9.  Petitioner, however, did not complete the missing documentation. On May 9, 1997, a meeting was held with Petitioner, Ms. Hardison, Ms. Karen Salacki, who is coordinator of Children Services, and Ms. Pat Adams, who is Area Director of Respondent. At said meeting, Petitioner was informed that she needed to complete the missing notes within one week. At said meeting, Petitioner did not suggest or even hint that she allegedly was a victim of any type of racial discrimination. In fact, Petitioner indicated at said meeting that all of this began, referring to the disciplinary process, as a result of her requesting reimbursement for personal funds she had expended on behalf of clients. Petitioner specifically stated at said meeting that “Until two weeks before the May 9 corrective action, I got along fine with Terry Hardison until I asked for reimbursement and called Sandra Langley”. Petitioner was given one week to complete the missing notes; however, she failed to comply. R1-B, R1-C.

10.  On May 29, 1997, Karen Salacki transmitted a memorandum to Petitioner in regard to the documentation not being completed by the deadline of May 16, 1997. R1-D.

11.  On June 17, 1997, Terry Hardison transmitted a second memorandum to Petitioner in regard to the incomplete documentation. R1-E.

12.  On June 19, 1997, Ms. Adams gave Petitioner a second written warning in regard to the missing and incomplete documentation. Petitioner was given until June 27, 1997 in order to complete the documentation. R1-F.

13.  Petitioner, however, still did not complete the missing documentation. Petitioner missed nine days of work shortly after this second warning, five days for an unspecified “family emergency” and four days because she was suffering from “headaches”. Petitioner was then given additional time to complete the missing documentation.

14.  On July 16, 1997, as a result of her continued unsatisfactory job performance evidenced by her failure to follow instructions and meet the requirements of the corrective action plan, Petitioner was notified in writing that termination of her employment was being considered. Petitioner was instructed to meet with Ms. Adams on July 17, 1997 at 9:00 a.m. for the purpose of her pre-dismissal conference. R1-G.

15.  On July 17, 1997, a pre-dismissal conference was held. Present at the conference were Ms. Salacki, Ms. Adams, and Petitioner. At the conference, Petitioner was given the opportunity to provide information on her behalf. She was informed that the purpose of the conference was to provide her an opportunity to give any information that might influence the consideration of the decision to terminate her employment. It was emphasized that no decision had been made at this point. At the conference, Ms. Harper stated, “I have no information at this time”. Petitioner further indicated that all of the problems started in May because “Terry was angry” when she requested reimbursement for certain items. Petitioner further acknowledged at each of the disciplinary conferences that Ms. Hardison had attempted to help her to catch up delinquent charts by offering her office on occasion and had assisted her in preparing a rehabilitation treatment plan as required by medical records standards. In all of the disciplinary conferences with Petitioner, she freely admitted that she had not done the chart work but had been in the field and busy with clients. At no time during any of the disciplinary conferences did Petitioner indicate that she believed that she was being discriminated against on the basis of her race. R1-H, R1-I.

16.  On July 18, 1997, Petitioner met with Ms. Adams, Ms. Salacki, and Ms. Moore. At said meeting, Ms. Adams informed Petitioner that she was being terminated effective on that date. As an employee with “status” pursuant to the State Personnel Act, Petitioner was provided with a copy of her appeal rights at that time. R1-H, R1-I.

17.  On July 21, 1997, Ms. Adams transmitted a termination letter to Petitioner. A copy of her appeal rights was also included in the letter. R1-J.

18.  Petitioner did exercise her right of appeal, and a conference in regard to same was held on August 14, 1997. During this first step of the appeal process, there was no mention of alleged racial discrimination by Petitioner or her counsel. Following the conference, Ms. Adams upheld the termination of Petitioner. R1-K.

19.  On September 3, 1997, Respondent received written notification from Petitioner’s counsel that her client was appealing the termination of her employment to the Personnel Committee of the Area Board of Respondent. Petitioner was entitled to this appeal pursuant to her “appeal rights”. This hearing was held on September 17, 1997. During this hearing, Petitioner was asked by her attorney why she was terminated, and Petitioner emphatically stated, “It was done because Terry Hardison was angry about the reimbursement incident”. During this hearing, racial discrimination was not alleged by Petitioner or her counsel. Following the hearing, the Area Board of Respondent upheld the termination of Petitioner. R1-L.