STATE OF NORTH CAROLINAIN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CUMBERLAND 00 OSP 1490

______

)

ALVIN EARL WILLIAMS )

Petitioner, )

)

v. )

) DECISION

DIRECTOR OF CUMBERLAND COUNTY )

DEPARTMENT OF SOCIAL SERVICES )

Respondent. )

______

STATEMENT OF CASE

Petitioner was terminated from his position as an Adult Home Specialist with the Cumberland County Department of Social Services on November 28, 2001. A Petition for Contested Case Hearing was filed in the Office of Administrative Hearings on January 2, 2002. A hearing was conducted on June 9, 2003 in Fayetteville, North Carolina before the undersigned Administrative Law Judge.

Appearances:

Carmen Battle, Esq., for Petitioner

Douglas E. Canders, Esq., for Respondent

ISSUES

Whether Respondent had just cause to terminate Petitioner’s employment for grossly inefficient job performance.

FINDINGS OF FACT

1.Petitioner was a career employee at the time of his dismissal.

2.Petitioner was employed as an Adult Home Specialist in the Preventive Services Division of the Cumberland County Department of Social Services (“CCDSS”). This position was assumed by Petitioner in summer of 1998.

3.Previously, Petitioner was employed by the United States Air Force as an assistant superintendent in Social Actions/ Equal Employment Opportunity. Also, Petitioner served as a first sergeant during the Persian Gulf War, Desert Storm, and Desert Shield. Petitioner worked as a volunteer mediating disputes for the Cumberland County Dispute Resolution Center. Petitioner has two Masters Degrees in human resource development and in special education.

4.As an Adult Home Specialist, Petitioner was required to fully qualify as an Adult Home

Specialist. Adult Home Specialist training include, at a minimum, pre-orientation, basic orientation, post-basic orientation. At the time of his termination, Petitioner’s training was not complete.

5.On July 30, 1998, Petitioner received minimal basic training. On November 2 -6, 1998,

Mr. Ransom Creech, DFS consultant, provided the pre-orientation training.

6.This training consisted of Mr. Creech reading to Petitioner and co-worker, Lucy Sharp, the residents' rights.

7.Next, Petitioner completed basic orientation that consisted of an overview of the whole Program, specifically, the thirteen (13) monitoring areas and the overall operation of the facility.

8.During the basic orientation the adult home specialist is expected to learn on his own. There is no supervision in the field. The adult home specialist reads and learns by trial and error.

9.Petitioner did not receive post-basic orientation, where he would receive on-the-job training. Post-basic training consisted of the consultant observing the AHS and identifying, if any, weaknesses in order to develop an individualized work plan.

10.No one developed an individualized work plan for Petitioner, based upon the post-basic orientation or the April 2001 work plan. The post-basic orientation was not implemented before Petitioner’s termination

11.Post-basic orientation is the key step in becoming a fully qualified Adult Home Specialist. Respondent never offered this training from 1998 to 2001.

12.Petitioner had two encounters with DFS Consultant Michele Elliot. Consultants provide training, technical assistance and consultation.

13.At meetings, the consultant identifies strengths, weaknesses and obstacles or concerns preventing the proper care of a DDA facility.

14.The DFS Consultant then assists the AHS in meeting those standards. On September 19,

2000, Petitioner first met with DFS Consultant Michele Elliot.

15.On the Report of Review, Petitioner achieved a hundred percent in all the areas.

Petitioner then met with DFS Elliot at Sunlight in December, 2000. Petitioner met standards in the next monitoring.

  1. Petitioner received three (3) personnel appraisals. For the three month period July 1998

through November 1998, Petitioner earned a 4.0 on a 4 point system.

  1. From November 1998 through October 1999, Petitioner earned 3.65

18From October 1999 through October 2000, Petitioner earned a 2.89.

19.Petitioner’s appraisals were interpreted with a weighted factor and all appraisals were

satisfactory or above.

  1. During his employment, Petitioner’s supervisor was Ruby Underwood, Supervisor of the

Preventive Services Division. She ceased contact with Petitioner shortly after he was employed in 1998. She was available for Petitioner’s questions and answers.

  1. In 1999, after Petitioner filed a rebuttal, Mrs. Underwood stopped speaking to Petitioner.

Petitioner filed a rebuttal because the 3.65 performance appraisal reflected three “2s” and one was in the area of relationship with the supervisor.

  1. Ms. Underwood did not counsel or document Petitioner in any area for improvement.
  1. Subsequent to the rebuttal, Mrs. Underwood remained Petitioner’s supervisor but said

very little to him from that point until he was terminated.

  1. Mrs. Underwood did not provide training to Petitioner at the DDA facility. He was

evaluated by Mrs. Underwood from her desk. She accompanied Petitioner to the DDA facility, Carol Parker House, only once. At that time he was only asked “How are you doing?” That was about the extent of the field training that Petitioner received from Ms. Underwood.

  1. Lucy Sharp testified that she was employed in Petitioner’s work area as an AHS. She

worked from 1997 and plans of retiring in June 2003, with 29.25 years of service. She stated that from the date of her employment as an AHS, Ruby Underwood has been her supervisor. She further testified that Mrs. Underwood has never visited one of her facilities to inspect, observe or train.

  1. On his performance evaluation, Petitioner was never cited for violating safety rules or

regulations.

  1. Petitioner wrote corrective action reports for facilities in violation of rules and

regulations. One facility, Sunlight, was closed based upon his corrective action report.

  1. During the period of employment from 1998 through 2001, Petitioner did not receive any

disciplinary actions, warnings, reprimands or other write-ups.

  1. However, during his employment, Petitioner did receive certificates of recognition,

thank-you notes, and commendations. One certificate was from Supervisor Underwood. On July 31, 2000, Petitioner received special commendations from the HUD Secretary for the five Crest DDA facilities. Petitioner attended holiday and special functions at his assigned DDA facilities to interact with the residents and clients.

  1. Petitioner’s work environment became more tense and hostile subsequent to a complaint

filed with the CCDSS Director, William Scarlett, concerning DFS Consultant, Ms. Siv Dossett, a white female.

  1. In May 2000, Ms. Siv Dossett came into the facility to observe Petitioner. Ms. Dossett

was looking through Petitioner’s files and inquiring about complaints in his DDA facilities.

  1. Petitioner advised that he did them within the deadline of thirty days. In fact, Petitioner

advised that he was the only AHS meeting the deadline; however, Mrs. Underwood permitted four to five months to complete complaints.

  1. Thereafter, Ms. Dorsett shouted at Petitioner in a loud tone of voice and used words

Petitioner found to be unpleasant and demeaning.

  1. Ms Dorsett continued to harass Petitioner about his performance throughout the day.
  1. Supervisor Underwood was there in and out of her office which is adjacent to Petitioner.

However, she did not intervene or take any corrective measures.

  1. During this observation, Ms Dorsett went with Petitioner to Rosa Vista and belittled the

black administrator and the assistant.

  1. Ms Dorsett’s behavior escalated when she returned to Petitioner’s work area.
  1. Near the end of the meeting, Ms. Dorsett got about two inches from Petitioner’s face and

continued to harass Petitioner in the presence of Mrs. Underwood and his co-workers.

  1. She continued to yell at Petitioner in a voice that could be heard by other co-workers in

the area. Mrs. Underwood still did not stop the harassment. Petitioner was at the point of having an emotional break down, therefore, he walked out to stop the harassment. Thereafter, he received medical treatment as a result of the emotional stress.

  1. Based upon this incident, Petitioner filed a complaint to William Scarlett, Director of

Cumberland County Department of Social Services, and with the Human Resource Office. The incident was substantiated.

  1. As a result, Ms. Siv Dorsett was forbidden to return to the facility.
  1. Ms. Siv Dorsett did not follow protocol, and Petitioner testified that he had never seen

her treat Caucasians in that manner.

  1. After the May 20, 2001 incident, and the complaint filed, Mrs. Underwood accompanied

Petitioner to the McLeod facility for a routine monitoring. This was the first time Mrs. Underwood accompanied Petitioner to a monitoring since July/August 1998.

  1. There was no mention of inefficient work performance.
  1. There was one suggestion regarding monitoring of the medicine box.
  1. Petitioner received training from Ms. Michelle Elliott, Coordinator, NCDHHS, DFS on

April 24, 2001 concerning the changes in regulations setting the standards and restriction on restraint of residents by licensees of developmentally delayed adults and adults care homes.

  1. Prior deaths under the old standards were used to underscore, the importance of

enforcement measures to insure that the new standards were put in place immediately.

48.On May 15, 2001, Petitioner conducted an inspection at Hillside Rest Home, monitoring

compliance with medical care requirements of the regulations. Petitioner’s investigation on May 15, 2001 revealed that Hillside Rest Home did not have a restraint policy consistent with the amendments to the law and regulations that went into effect in January 2001.

49.Petitioner did not issue to Hillside Rest Home, on May 15, 2001, a Type B

violation.

  1. Petitioner was counseled by Ms. Underwood and Mr. Duke regarding his merely noting the restraint violation as a concern on Hillside Monitoring Report instead of a written corrective action. They informed him that the corrective action plan requires that action be taken within a specified period of time. Petitioner issued the written corrective action when he revisited the facility.
  1. Ms. Michelle Elliott, Adult Home Consultant, of NCDHHS, DFS, visited CCDSS to conduct a quarterly review on June 28, 2001. She reviewed Mr.Williams’ work and went to Rosa Vista Adult Care Home to monitor his inspection of health care issues for compliance.
  1. She noted that Petitioner did not point out residents in restraints.
  1. When she directed Petitioner’s attention to the resident in restraints, he advised that that was not a medical care issue. Ms. Elliott informed him that it was covered in the checklist for medical inspection in the State Manual that he was using. (Appendix C, Adult Care Home Procedures Manual)

54.In the pre-exit conference between Ms. Underwood, Ms. Elliott and Mr. Williams, which is used to prepare the summary for the exit meeting with the home Administrator, Mr.Williams indicated he was going to address the restraints as a concern on the monitoring report.

55.Petitioner was instructed that a correctiveaction report was required. He was instructed that law and the manual clearly define when a Type B violation is required and when a corrective plan is used to enforce correction of a violation.

56.Petitioner failed to cite the licensee with a violation of the restraint provisions of N.C.G.S. § 131D-21 and N.C.A.C. T10-C42-S42C.2302 pursuant to N.C.G.S. § 131D-34 during the exit interview with the home Administrator.

  1. Petitioner advised the Rosa Vista Home Administrator that the restraint violation was a concern and recorded it as such on the monitoring report.

58.From May, 2000 until April, 2001, no one approached Petitioner regarding his performance as grossly inefficient, or placing Petitioner on a work plan.

  1. On April 9, 2001, Petitioner agreed to enter a work plan. He requested that his

evaluator for the work plan not be Supervisor Underwood, due to the historical hostile work environment, his prior rebuttal filed, and the incident with Siv Dorsett.

  1. These requests were sent to William Duke and Mr. William Scarlett. Nevertheless, Ms.

Underwood was his evaluator for the work plan which was not implemented as written.

  1. Ms. Underwood made four field visits over the three month period, while the work plan

provided for three times per month.

  1. Ms Underwood provided generalized training, and not individualized or special training

as indicated in the work plan.

  1. Mrs. Underwood did not observe as the supervisor/evaluator but used one of Petitioner’s

colleagues with less experience than Petitioner to perform supervisory observations.

  1. The work plan called for weekly/monthly training by the DFS Consultant, which was not

implemented.

65.On July 5, 2001, Petitioner was released from the work plan until further notice. However, he continued to work until November 28, 2001, when he was terminated for grossly inefficient job performance. The work plan was still in effect and Petitioner was not given the opportunity to proceed to the next critical level of training, post-basic training.

Based upon the foregoing findings of fact, the Court makes the following:

CONCLUSIONS OF LAW

1.Petitioner was a career employee at the time of his dismissal.

  1. A career employee must receive certain warnings before termination for unsatisfactory job performance. Petitioner had received no warnings or other disciplinary action issued against him. N.C.G.S. §126-35.
  1. At the time of his termination, Petitioner’s training under the agreed work plan was not complete. He did not receive post basic orientation, which is a key step in becoming a fully qualified Adult Home Specialist.
  1. Respondent did not have just cause to terminate Petitioner for grossly inefficient

job performance.

The State Personnel Regulations provide:

(a)Gross Inefficiency (Grossly Inefficient Job Performance) 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 harm to a client(s),

an employee(s), members of the public or to a person(s) over whom the employee has responsibility or…. N.C.A.C. T25-CI-S1I.2303.

5.Petitioner’s termination was without “just cause” pursuant to N.C.G.S.131D-34(a)(2). A “Type B violation,” by this statute, is one that does not result in substantial risk that death or serious physical harm will occur. Therefore, by the evidence and this statute, Respondent acted erroneously and contrary to law when Respondent terminated Petitioner’s employment without prior warnings.

DECISION

Petitioner’s dismissal for grossly inefficient job performance was without just cause and Petitioner is entitled to:

(a)reinstated with front pay and back pay in accordance with 25 N.C.A.C.

1B.04211, 0422 AND 25 N.C.A.C. 1B.0434.

(b)front pay from the date he was terminated on November 28, 2001.

(c)Reasonable attorney’s fees pursuant to 25 N.C.A.C. 1B.0414 upon submission by Petitioner’s counsel of a Petition for Attorney fees with an accompanying itemized statement of the time and cost involved in representing the Petitioner.

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, NC 27699-6714, in accordance with North Carolina General Statute 150B-36(b).

NOTICE

The agency that will make the final decision in this contested case is the Cumberland County Department of Social Services.

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. § 150B-36(a). The Agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all partiers and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

In accordance with the 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 find 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 evidence in the record relied upon by the agency in making the finding of fact.

This the 5 day of November, 2003.

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Sammie Chess, Jr.

Administrative Law Judge

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