STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CABARRUS 10 OSP 9271

|Laren Pinnix-Ingram, |) | |

|Petitioner, |)) | |

|vs. |)) |DECISION |

|Cabarrus County DSS, | | |

|Respondent | | |

THIS MATTER was heard before the Honorable Selina M. Brooks, Administrative Law Judge, on May 10-11, 2011 in Charlotte, North Carolina.

APPEARANCES

For Petitioner: Kirk J. Angel, Esq.

The Angel Law Firm PLLC

P.O. Box 692

Harrisburg, NC 28075

For Respondent: Richard M. Koch

Cabarrus County Attorney

3220-201 Prosperity Church Rd.

Charlotte, NC 28269

PRELIMINARY MATTERS

Prior to the hearing various matters were raised by counsel on the record and after discussion were ruled upon forthwith by the Undersigned:

Petitioner moved to sequester the witnesses during the hearing. Respondent did not object and this motion was granted.

Respondent advised that he would be introducing a heretofore unproduced exhibit (Respondent’s Exhibit 33) and that it contained confidential patient information and requested that the exhibit be redacted. Petitioner did not object.

Respondent offered a prehearing memorandum of law which referred to matters before the Employment Securities Commission. Petitioner moved to strike. During the course of the hearing, counsel agreed to submit post-trial memorandums of law and Respondent withdrew his prehearing memorandum of law.

Petitioner made a motion in limine to prohibit the offer of any testimony concerning matters before the Employment Securities Commission. This Motion was granted.

WITNESSES

For Petitioner: Karen Pinnix-Ingram

For Respondent: Daniel Ketola

Sharisse Williams

William Rose

Kelly Hinebaugh

Jane Cauthen

Joyce Hogan Hinson

Donald Cummings

EXHIBITS ADMITTED INTO EVIDENCE

For Petitioner: Exhibits 1, 3, 4, 5, 6

For Respondent: Exhibits 1-23, 30-35

ISSUES

1. Whether Petitioner was discharged without cause from her employment with Respondent in violation of the State Personnel Act?

2. Whether Petitioner’s discharge from her employment with Respondent was erroneous, arbitrary and capricious, in violation of the State Personnel Act?

3. Whether the Petitioner’s discharge from her employment with Respondent violated the provisions of the Family Medical Leave Act?

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and considering the post-hearing briefs of counsel, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interest, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. Wherefore, the Undersigned makes the following Findings of Fact, Conclusions of Law and Decision:

FINDINGS OF FACT

1. Petitioner was employed by Respondent as a child welfare in-home social worker from December 11, 2006 until November 5, 2010.

2. Petitioner was assigned to the child welfare in-home services section of the Respondent. Petitioner’s duties consisted of arranging and managing the various services being offered in the home to the parents and children in cases where there has been a substantiated incident of abuse or neglect of the child or children. The goal is to try to rectify the problems in the home and maintain the family intact. T pp 86-88.

3. The provision of in-home services and the management of these cases require meticulous and timely documentation of the activities and efforts of the social worker. This documentation, including “dictation”, is prepared by the social worker. Dictation is a written running narrative of the events occurring in the case, to be prepared fairly contemporaneously with the events being recorded. T pp 88-92. Timely, accurate dictation is important so that the social worker keeps each of her case activities from being mixed, so that Respondent at all times knows the status of each case and another social worker can step in and handle a case in the event the assigned social worker is unavailable. T pp 92-93.

4. Timely and accurate dictation was required by Respondent of all social workers, including the Petitioner. Dictation was required to be current within seven (7) days and was to be submitted to the supervisor by the fifth day of the next month. The workplace rules concerning the timeliness of dictation had been communicated to Petitioner orally and in writing. R Exhs 6, 7 & 8.

5. Another workplace rule applicable to social workers, including Petitioner, was that leave time had to be approved by the social worker’s supervisor and that approval was contingent or conditioned upon the social worker’s dictation being current and timely submitted. R Exhs 6, 7 & 8; T p 109.

6. Petitioner was aware of this time requirement for dictation, having signed CP/CM Expectations documents on June 3, 2008, February 10, 2009 and September 20, 2010. R Exhs 6, 7 & 8.

7. In early September, 2010, Petitioner requested vacation leave for Thursday, October 14 and Friday, October 15, in order to attend her college reunion in Chattanooga, Tennessee. T pp 422-23.

8. By e-mail on October 5, 2011, Petitioner requested leave for oral surgery which had been rescheduled for October 6, 2010. This request was approved. R Exh 20.

9. On Wednesday, October 6, 2010, Petitioner had oral surgery. She was out of work on medical leave on that day as well as Thursday and Friday, October 7 and 8, 2010.

10. As of October 6, 2010, Petitioner was behind in her work, particularly dictation.

11. On Monday, October 11, 2010, Petitioner returned to work, logging 6.5 hours on that day. R Exh 11 & 18.

12. Petitioner met with Ms. Hinebaugh and Ms. Cauthen and signed a Performance Plan which states that Petitioner’s diction was submitted late in July 2010, August 2010 and September 2010, and that completed dictation was due by the fifth day of the month. R Exh 10.

13. On Tuesday, October 12, 2010, Petitioner logged in that she worked 5.0 hours. R Exhs 11 & 18.

14. Petitioner testified that on October 13, 2010, her dictation was behind and that she discussed this fact with Ms. Hinebaugh who told her she could not leave until her dictation was finished. T pp 417-21, 487-88.

15. Petitioner testified that Ms. Hinebaugh told her that if she left work before her dictation was finished that she would be “written up”. T pp 420, 477. Petitioner knew that her leave approval was contingent upon completing her dictation. T. 476. Petitioner knew her leave had been denied but she left work anyway. T pp 481-82, 489-90.

16. On October 13, 2010, Petitioner left work at 3:19 PM, before the end of her regular work day, knowing that her leave for October 14 and October 15 had been denied and without authorization from her supervisor, Ms. Hinebaugh.

17. Both Petitioner’s supervisor and the program manager, Jane Cauthen, attempted to contact Petitioner later in the afternoon of October 13 to ascertain Petitioner’s whereabouts.

18. Ms. Hinebaugh met with Petitioner at 2:30 pm on October 13, 2010 to review the status of Petitioner’s work in advance of Petitioner’s requested vacation leave the next day for her college reunion trip. Petitioner made no mention of pain in her mouth or of a follow up appointment with Dr. Farrell that afternoon. This is consistent with Ms. Hinebaugh’s text inquiry to petitioner later that afternoon as to why Petitioner left early at 3:19 pm without permission and no reason was noted in Respondent’s computer calendar system. R Exh 19.

19. Petitioner was aware of the requirements for notification to her employer regarding leave as shown in emails to her supervisor. R Exh 20 & 21.

20. Petitioner did not notify Respondent that she would be out for a serious health condition on the afternoon of October 13, or for October 14 or 15, nor did she call in as required by Respondent’s policy.

21. At the time Petitioner left for her college reunion trip in Chattanooga, Tennessee, she was noncompliant with the Respondent’s policy on her dictation and was specifically told on October 13, 2010 by her supervisor, that she could not take vacation leave for the trip. R Exh 22.

22. Petitioner requested return-to-work forms from the oral surgeon’s office to excuse her absence from work for medical reasons which were completed by the receptionist as requested by the Petitioner. T pp 60-61, 70.

23. On October 13, 2010, Petitioner submitted to Respondent a return-to-work form, dated October 6, 2010, that stated she could return to work on October 13, 2010. R Exh 12; T pp 162, 217 & 417.

24. Petitioner worked four hours of overtime on Sunday, October 17, 2010. R Exh 11.

25. On October 18, 2010, a return-to-work form, dated October 14, 2010, was submitted to Respondent that stated Petitioner could return to work on October 18, 2010. R Exh 13. In her deposition, Petitioner testified that this document was picked up by her husband on October 14, 2010 while Petitioner was in Chattanooga. R Exh 35 p 57. This form was received by Respondent after the leave was taken. T pp 122, 162.

26. On October 22, 2010, Petitioner submitted to Respondent a return-to-work form, dated October 21, 2010, that stated she could return to work on October 18, 2010 with the additional comment “[d]ue to pain meds and complications pt should not have been at work on 10/13/10”. R Exh 14; T p 286.

27. Pre-disciplinary conferences were held on October 21, 2011 and October 27, 2010, concerning the issues of unsatisfactory job performance for failure to maintain current documentation and for inappropriate personal conduct for failure to secure authorization for leave on October 13, 2010. After these conferences, the decision was made to terminate Petitioner for just cause. R Exhs 1 & 5.

28. On November 5, 2010, Petitioner submitted a Step 2 Grievance in which she states, in part: “I was not aware that I could be subject to discipline for late documentation and, in fact, I had never been late before”; and “My leave was appropriately approved prior to October 13, 2010.” R Exh 2. Petitioner did not submit documentation to support these statements. T pp 128-29.

29. Petitioner’s Step 2 Grievance was denied by letter, dated November 18, 2010. R Exh 3.

30. Based on Petitioner’s testimony at the hearing and the documentary record in this case, Petitioner has offered differing and contradictory versions of the events of October 13, 2010:

a) At the predisciplinary conference on October 21, 2010, Petitioner stated that she went to a follow-up appointment with Dr. Bart Farrell, her oral surgeon. R Exh 1)

b) At the predisciplinary conference on October 27, 2010, Petitioner stated she went to the office of Dr. Patel, her general dentist, saw only the receptionist and was told to see her oral surgeon. R Exh 1.

c) In Petitioner’s answers to Respondent’s interrogatories, dated March 8, 2011, she stated that she telephoned Dr. Patel and was told to cancel the appointment with Dr. Patel and follow-up with Dr. Farrell. Petitioner stated that she told her supervisor, Ms. Hinebaugh, in their 2:30 pm meeting about the status of her work being behind and that she was in excessive pain and was going to see the dentist. She further stated that she returned a text message to Ms. Hinebaugh at 4:30 pm stating that she was at the dentist’s office. R Exh 35.

d) In Petitioner’s deposition dated March 10, 2011, Petitioner stated that Dr. Patel wanted her to cancel a 9:00 am appointment because she was being treated by Dr. Farrell. Petitioner stated she canceled a noon appointment with Dr. Farrell in order to get some work done. Petitioner stated that she again contacted Dr. Farrell’s office to ask if she could be worked in and was told to come when she could. Petitioner stated she left work and went to Dr. Farrell’s office, but because of the time she arrived, she could not be seen. She was there approximately 30 - 45 minutes from 3:30 - 3:45 pm to 4:00 - 4:15 pm. R Exh 34 pp 27-30.

e) During the hearing on May 11, 2011, Petitioner testified that she went to Dr. Farrell’s office in the late afternoon and was not seen, even though she complained of pain. She also testified that she was not required to sign in and had never been required to sign in. T pp 443-45, 452-53 & 463-65.

31. Petitioner’s differing accounts of her whereabouts on October 13, 2010 are contradictory and conflict with the documents entered into evidence and the testimony of the other witnesses. Danny Ketola, the office manager for University Oral and Maxillofacial Surgery, the clinic where Dr. Farrell practices and treated Petitioner, testified that all patients are required to sign in and all patients are worked in if they come to the office with a complaint of pain, regardless of an appointment. T pp 47 & 50.

32. Mr. Ketola provided a copy of the patient sign-in sheet for October 13, 2010, which showed that Petitioner did not sign in He described the sign-in system, which captures the patient’s name and then by a sticker system transfers it to the sheet for the appropriate doctor. The system is designed to ensure that patients are seen by the doctor. R Exh 33; T p 46-49; 149.

33. Sharisse Williams testified that she was the sole receptionist/check-in attendant for University Oral and Maxillofacial Surgery the afternoon of October 13, 2010 and confirmed that Petitioner did not sign in. She also stated that on that afternoon no patient waiting to be seen was not seen. She corroborated Mr. Ketola’s statements that all patients are required to sign in and all patients coming in with a complaint of pain seen. T pp 72-75, 78-81.

34. Petitioner’s day book showed a hair appointment at 4:00 pm for October 13, 2010. R Exh 23. Petitioner testified that she went to her hair appointment at 5:30pm. T pp 455, 465-67. There was no indication of an afternoon appointment with Dr. Farrell and no documentary evidence to support it.

35. The evidence indicates that Petitioner never went to Dr. Farrell’s office that afternoon but kept her hair appointment instead.

36. The Undersigned finds as fact that Petitioner was not truthful in her statements concerning her whereabouts on October 13, 2010, including the statements made as indicated to Kelly Hinebaugh, her supervisor and to Ben Rose, the agency director of respondent in the pre-disciplinary conferences.

37. The Undersigned finds as fact that Petitioner left her employment early without permission, on October 13, 2010 and then attempted to conceal her purposes and whereabouts from her supervisor, her program manager, and her director.

38. Petitioner did not initially apply for FMLA (Family and Medical Leave Act of 1993 (29 CFR Part 825 (2009) or 29 U.S.C. §2601 et seq.)) leave for her oral surgery, deciding for herself that she could work. T p 416.

39. No evidence was offered that supports Petitioner’s assertion that she invoked FMLA on October 12 or 13, 2010, before she left her employment the afternoon of October 13, 2010.

40. Petitioner states in the interrogatory answers that she applied for FMLA leave on October 12, 2010, a day that she worked. R Exh. 35.

41. The Undersigned finds as fact that Petitioner’s request for FMLA leave was not initiated until October 18, 2010, after Petitioner returned from her trip to Chattanooga.

42. Based upon Petitioner’s deposition, the only document upon which she was claiming FMLA was the report from Dr. Farrell dated October 19, 2010, wherein he states that Petitioner may return to work on October 18, 2010. This report was sent in response to the FMLA documentation initiated October 18, 2010. R Exhs 30, 31 & 34 pp 56-57.

43. Petitioner’s own conduct during the period from her surgery on October 6, 2010 to her return after her trip on October 18, 2010 does not support her assertion that she was on FMLA leave from October 13-18, 2010.

44. Despite Petitioner’s after-the-fact assertion that she was entitled to be on FMLA leave from October 6–18, 2010, Petitioner worked Monday through Wednesday, October 11-13, 2010, and did unauthorized work at night on October 17, 2010, after returning from her trip to Chattanooga. T pp 212, 423. If Petitioner considered herself on FMLA leave as of October 12 or 13, she would not have worked on October 13 or October 17. On October 13, 2010, Respondent had no medical documentation or information that Petitioner was entitled to be out of work on October 13, 14 and 15, 2010.

45. At the hearing, Petitioner conceded that she did not have FMLA leave approved on October 12, 2010 and she actually submitted the FMLA paperwork on October 18, 2010, the Monday after the college reunion trip. R Exh 35; T pp 488, 494-95.

46. The Undersigned finds as fact that FMLA leave was not a consideration to Petitioner until she returned from her trip and learned that Respondent had initiated the FMLA paperwork in a good faith effort to comply with the FMLA. Petitioner is attempting to use this good faith effort, after the fact, as an excuse to justify her conduct on October 13, 14 and 15, 2010

47. FMLA leave was retroactively approved by Respondent on October 20, 2010. R Exh 32.

48. Such action by Respondent’s human resources department, which handles FMLA matters, was determined without regard to any outstanding issues regarding the Petitioner’s work performance or conduct. Such matters are handled by Petitioner’s supervisor and others in management.

49. The Undersigned finds as fact that the substantial evidence presented by the Respondent at the hearing established conclusively that Respondent had just cause to terminate Petitioner’s employment.

BASED UPON The foregoing Findings of Fact, the Undersigned makes the following:

CONCLUSIONS OF LAW

1. The foregoing Findings of Fact are incorporated by reference as Conclusions of Law to the extent necessary to give legal validity to this Decision.

2. The parties are properly before this tribunal and this tribunal has the authority to render this Decision.

2. Since the respondent is a county department of social services, the employment of the employees of the Respondent, including the Petitioner, are subject to the provisions of the State Personnel Act (N.C. Gen. Stat. Chapter 126).

3. FMLA is a federal law that provides up to twelve weeks of job protection to employees for qualifying reasons, to include their own serious health condition. 29 CFR Part 825 (2009). Pursuant to 29 CFR §825.301(b) and .303(a), the employee is responsible for providing notice stating a qualifying reason, as soon as practicable. When the need for leave is not foreseeable, the employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave. 29 CFR §825.303(c). That section contains an example of the application of these regulations.

4. Section 825.304(e) specifically provides that if an employer does not waive the employee’s obligation under its internal rules, the employer may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the rules are not inconsistent with 29 CFR §825.303(a).

5. The United States Department of Labor, Employment Standards Division, Wage and Hour Division, which is responsible for federal enforcement of the FMLA, issued an opinion letter in 2009 construing these provisions. Cited as FMLA 2009-1-A, this letter states that “when an employer’s usual and customary notice and procedural requirements are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced.

6. The case law also supports the respondent’s right to dismiss petitioner for conduct during an FMLA leave period, so long as the petitioner’s assertion of FMLA leave is not the reason for the dismissal. See Gipson v. Vought Aircraft Industries, 387 Fed. Appx. 548 (6th Cir. Term. 2010, Right v. SCM Corp of America, 632 F. 2d 404 (7th Cir. Ill. 2011), Thompson v. Century Tel Central Arkansas, 403 Fed. Appx. 114 (8th Cir. Ark. 2010), Branch v. City of Richmond, 10 Fed. Appx. 50 (4th Cir. Va. 2001) and Wright v Southwest Airlines, 319 Fed. Appx. 232 (4th Cir. Md. 2009).

7. Petitioner took unauthorized leave and was not truthful concerning her whereabouts. These were the reasons for which she was discharged.

8. Such reasons constitute just cause for discharge of the Petitioner for unacceptable personal conduct, pursuant to N.C. Gen. Stat. §126-35(a).

BASED UPON on the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following Recommended Decision.

DECISION

Respondent has sufficiently proved it had just cause to discharge Petitioner from her employment with Respondent based on her unacceptable personal conduct and Respondent’s decision to discharge Petitioner is AFFIRMED. Petitioner’s demands for reinstatement to her job, back pay, costs and attorneys fees and any other relief should be and is denied.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Services Center, Raleigh, N.C. 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The State Personnel Commission will issue an advisory opinion to the Director of the Cabarrus County Department of Social Services. N.C. Gen. Stat. § 150B-23(a). The Director of the Cabarrus County Department of Social Services will make the final decision in this contested case.

The agency making the final decision in this contested case 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. § 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 parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

This 12th day of September, 2011.

Selina M. Brooks

Administrative Law Judge

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