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STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS 02 OSP 0769 COUNTY OF DURHAM Jackie Brannon Petitioner, v. Durham County Social Services, DANIEL HUDGINS Respondent. ) ) ) ) ) ) ) ) DECISION The Contested Case Petition commencing this matter was filed in the Office of Administrative Hearings on May 7, 2002. The hearing was held on September 12, 2002 and October 16, 2002 before The Honorable Beryl E. Wade, Administrative Law Judge. The petitioner complained of termination without just cause and failure to receive priority consideration. APPEARANCES Petitioner: Jackie Brannon 516 E. Club Blvd Durham, North Carolina 27704 Michael A. Jones 100 East Parrish Street Chancellor Building, Suite 450 Durham, North Carolina 27701 ATTORNEY FOR PETITIONER Respondent: Lucy Chavis Assistant County Attorney Office of the County Attorney Post Office Box 3508 Durham, North Carolina 27702 ATTORNEY FOR RESPONDENT ISSUES Whether Petitioner violated a known work rule by directing an employee to discard forms that are essential to the function of Department of Social Services, (hereinafter “DSS”), thus constituting unacceptable personal conduct for which no one should expect a warning and grounds for termination? 1 Whether Petitioner failed to key in forms that are essential to the function of the DSS, as requested, thus constituting unsatisfactory job performance? FINDINGS OF FACT 1. Petitioner worked as the Clerical Supervisor in the Child Protective Services Unit, (hereinafter “CPS”), in the Department of Social Services. Petitioner began working in the CPS unit August 4, 2001. Karen Brown is an Income Maintenance Food Stamp Worker in the CPS unit. Petitioner is Ms. Brown’s supervisor. Ms. Brown was scheduled to take a leave of absence from work on November 14, 2001. 2. In the CPS unit, Ms. Brown is responsible for entering information pertaining to 5207 and 5104 forms. The CPS’s Social Workers, (hereinafter, “SW”), give Ms. Brown 5104 forms to open child abuse and neglect case in the CPS unit. The 5104's automatically generate a 5027 form. The 5027 forms are used to track child and abuse neglect cases. As the cases progress, the CPS SW’s submit an updated hard copy of the 5027's to Ms. Brown. Ms. Brown enters the new information into the CPS’s database. Ms. Brown then places the 5027's in the CPS’s Social Worker Supervisor’s box, (hereinafter, “SWS”). The 5104 forms are given to Ms. Gail Angle, Program Manager for the CPS unit. Ms. Angle supervises the Petitioner and Ms. Brown. The 5027 and 5104 forms are keyed in daily to avoid backlog. 3. The North Carolina State Office, (hereinafter “State”) monitors child abuse and neglect cases in the CPS unit. The State conducts audits by reviewing the hard copy of the 5027 and 5104 forms. The CPS unit receives funding from the State based on the review of the 5027 and 5104 forms. 4. Ms. Brown testified at no time are the documents to be discarded. Further, at no time did she instruct Petitioner to discard the forms. Ms. Angel informed the Petitioner of the importance of the 5027's and 5104's. Petitioner knew the importance of the forms and that they were not to be destroyed or discarded. 5. Before Ms. Brown’s leave of absence, Ms. Angel requested that Ms. Brown train Petitioner in the process of handling 5027 and 5104 forms. Ms. Brown trained the Petitioner. Ms. Brown instructed Petitioner on the process of entering the information on both forms. Ms. Brown instructed Petitioner to place the 5027 forms in the SWS’s box after entering the information into the system. Ms. Brown instructed the Petitioner that the 5104 forms were to be given to Ms. Angle. Petitioner stated she understood the process. Ms. Brown left on her leave of absence. 6. Petitioner had access to Ms. Brown, during Ms. Brown’s approximately five months of leave of absence. Petitioner contacted Ms. Brown during her leave of absence. Petitioner did not ask Ms. Brown where the 5027 forms should be placed, nor did Petitioner ask Ms. Angle. The Petitioner did not mention to Ms. Angle that she was having problems entering 5104 information into the CPS database. 2 7. Mrs. Brown returned to work on March 12, 2002. Petitioner gave Ms. Brown a stack of 5027 forms. Petitioner told Mrs. Brown that she had placed the 5027 forms in the SW’s box, but the SW’s placed the forms back in the Petitioner’s box. Ms. Brown stated that 5027 forms should be placed in the SWS’s box. Petitioner instructed Ms. Brown to place them in the confidential bin. 8. The confidential bin is for documents that are to be destroyed. Victoria Beck, an employee in the CPS unit, overheard Petitioner instruct Ms. Brown to throw away the documents. Ms. Brown entered some of the documents to see if they had been keyed in. They were not. Ms. Brown informed Mrs. Angle. 9. About a week later Ms. Angle called Ms. Brown into her office. Mrs. Angle asked Ms. Brown why the 5104 forms were keyed in so late. Ms. Brown informed Ms. Angle that she keyed the documents that were in the box. 10. On April 5, and April 8, 2002, Mrs. Angle spoke to Petitioner concerning the 5027 and 5104 forms. Petitioner denied instructing Ms. Brown to discard the 5027 forms and that she had keyed the 5104 forms. April 9, 2002, another meeting was held regarding the aforementioned matter, in which Gail Perry, Assistant Director of the Child Protective Services Unit, Gail Angle and Petitioner were in attendance. Petitioner again denied instructing an employee to discard 5027 in violation of a known work rule and failing to key in 5104 forms in a timely fashion. 11. April 10, 2002, a Pre-Dismissal Conference was scheduled for April 11, 2002. April 12, 2002 Petitioner was terminated for unacceptable personal conduct, instructing an employee to discard documents in violation of known work rule, and the Respondent also found unsatisfactory job performance for failure to enter information in a timely fashion. 12. The hearing was held on September 12, 2002 and October 16, 2002. CONCLUSIONS OF LAW A career state employee may be discharged for just cause. Gainey v. N.C. Dept. of Justice, 121 N.C. App. 253, 465 S.E.2d 36, 41 (1996); N.C. Gen. Stat. § 126-35(a). “Just cause may result either from unacceptable job performance or unacceptable personal conduct.” Souther v. New River Area Mental Health Development Disabilities and Substance Abuse, 142 N.C. App. 1, 5, 541 S.E.2d 750, 753 (2001). An employee is not entitled to receive warnings when discharged for unacceptable personal conduct. Id. The North Carolina Administrative Code provides that an employee “may be dismissed for a current incident of unacceptable personal conduct...[such as]...the willful violation of a known or written work rules. 25 NCAC 1I.2304. An employee who has been terminated for unacceptable conduct has the burden of proof. Souther, 142 N.C. App. at 5, 541. S.E.2d at 753. 3 DECISION Based upon the above findings of fact and conclusions of law, the undersigned Administrative Law Judge, Beryl E. Wade, finds that Petitioner failed to meet the burden of proof. Petitioner was terminated for unacceptable personal conduct, violation of a known work rule, and just cause for termination. Petitioner failed to enter information in a timely fashion which is unsatisfactory job performance. Thereby, Respondent’s termination of Petitioner is hereby UPHELD. NOTICE REGARDING DECISION The North Carolina State Personnel Commission in this contested case is required to give each party an opportunity to file exceptions to this decision issued by the Undersigned, and to present written arguments to the Commission. N. C. Gen. Stat. § 150B-36(a). In accordance with N.C. Gen. Stat. § 150B-36 the State Personnel Commission 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 Commission, the Commission 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 Commission in not adopting the finding of fact. For each new finding of fact made by the Commission that is not contained in the Administrative Law Judge’s decision, the Commission shall set forth separately and in detail the evidence in the record relied upon by the Commission in making the finding of fact. The State Personnel Commission shall adopt the decision of the Administrative Law Judge unless the Commission demonstrates that the decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record. In so far as this matter involves a local government employee subject to Chapter 126 pursuant to North Carolina General Statute § 126-5(a)(2), the decision of the State Personnel Commission, absent a finding of discrimination, shall be advisory to the local appointing authority. The State Personnel Commission shall comply with all requirements of North Carolina General Statute § 150B-44 in making an advisory decision. In so far as this Decision by the Undersigned may be reviewed by the local appointing authority, it shall be in the nature of a recommended decision to that authority with no requirements for comment. The local appointing authority is required by North Carolina General Statute § 126-37 to comment upon the advisory decision of the State Personnel Commission. The local appointing authority shall issue a written, final decision either accepting, rejecting, or modifying the advisory decision of the State Personnel Commission. Further requirements of rights, notices and time lines to the Parties shall be forthcoming from the State Personnel Commission and/or the local appointing authority as the circumstances and stage of the process may dictate. 4 This the 19th day of December, 2002. ______________________________ Beryl E. Wade Administrative Law Judge 5