North Carolina



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAYNE 09 OSP 6785

|LaCinda L McKenzie |) | |

|Petitioner |)) | |

| |))))| |

|vs. | |DECISION |

| | | |

|O'Berry Center | | |

|Respondent | | |

THIS MATTER came on for hearing before the undersigned, Melissa Owens Lassiter, Administrative Law Judge, on April 21, 2010, in Goldsboro, North Carolina. On June 7, 2010, Chief Administrative Law Judge Julian Mann extended the deadline for filing a decision in the contested case until June 29, 2010.

APPEARANCES

For Petitioner: Pro Se

902-B Hopkins Street

Goldsboro, NC 27530

For Respondent: Charlene Richardson

Assistant Attorney General

Cherry Hospital

201 Stevens Mill Road

Goldsboro, NC 27530

ISSUE

Whether Respondent had just cause to terminate Petitioner from employment for engaging in unacceptable personal conduct?

EXHIBITS ADMITTED INTO EVIDENCE

For Petitioner: 1

For Respondent: 1 -12, 19

Official Notice taken of: 13-16, 18

FINDINGS OF FACT

Procedural Background

1. On November 16, 2009, Respondent issued a Final Agency Decision dismissing Petitioner from employment as a Health Care Technician I for engaging in the unacceptable personal conduct of failing to obtain her Certified Nurse’s Assistant credentials before August 1, 2009.

2. On December 23, 2009, Petitioner filed a contested case petition with the Office of Administrative Hearings appealing Respondent’s decision. Petitioner alleged three grounds for appeal.

a. First, Petitioner alleged that Respondent lacked just cause to dismiss her from employment.

b. Second, Petitioner alleged that Respondent discriminated against her by denying her requests to transfer to other cluster units within Respondent’s residential group home, and by failing to accommodate Petitioner while she tried to complete the practical skills component of her Certified Nursing Assistant’s exam, known as the National Nurse Aide Assessment Program’s exam (NNAAP). Petitioner claimed that Respondent accommodated other employees, by allowing them to keep their jobs, even though those employees had failed the NNAAP exam, and not obtained their CNA certification.

c. Third, Petitioner claimed that Respondent discriminated against her by terminating her employment, as she was the only employee Respondent terminated for failing to obtain their CNA credentials.

3. In the attachment to her petition, Petitioner explained that Cluster 4 of Respondent’s group home was scheduled to convert to a skilled nursing facility on or before September 2009. For that reason, all Cluster 4 employees, who provided direct care to residents, were required to obtain their CNA credentials by August 1, 2009 to retain their jobs. Since Petitioner worked in Cluster 4, she was required to obtain her CNA credentials by August 1, 2009. Petitioner passed the written assessment of her CNA exam before August 1, 2009, but did not successfully complete the practical skills component, after two attempts, by August 1, 2009. At her own expense, Petitioner planned to retake the practical skills component.

a. When Respondent terminated Petitioner’s employment on August 3, 2009, Respondent’s Cluster Home 4 had not converted into a long-term skilled nursing facility. Petitioner claimed that Respondent accommodated several other employees, who had failed both parts of the NNAAP exam, by placing those employees into other positions with Respondent that did not require CNA credentials, such as housekeeping and food preparation. On August 25, 2009, Dr. Frank Farrell “assured me that he would extend me that option.” Yet, Dr. Farrell never gave her that option.

b. Petitioner contended that Dr. Lynwood Dees, the Cluster 4 administrator, declined Petitioner’s requests to transfer to other cluster homes. Dees declined one of Petitioner’s transfer requests after a parent of a resident, for whom Petitioner had cared, specifically requested Petitioner transfer to the unit where that resident was being transferred.

4. Petitioner indicated that she remains qualified for the health care technician position, as well as other positions at O’Berry Center. She attached a copy of her 2009 performance evaluation, showing a “Good” rating, to her contested case petition. She further alleged that Respondent’s decision to terminate her was “harsh, unusual, and contradictory of the terms that were explained to me by my superiors prior to enrolling in O’Berry Center’s NNAAP.” She seeks reinstatement to her health care technician position, because conditions were not clearly present to warrant her dismissal. (Petition attachment)

Background Facts

5. In 2005, Respondent was first notified that, pursuant to the Omnibus Budget Reconciliation Act (OBRA), it would be converted from an Intermediate Care Facility for Mentally Retarded (ICF/MR) facility to a long-term skilled nursing facility.

6. The ICF/MR requirements did not require Respondent’s direct-care staff, such as health care technicians, to possess Certified Nursing Assistant’s (CNA) credentials. However, OBRA required all direct-care staff obtain CNA credentials and be registered with the Nurse Aide Registry, before Respondent could become licensed as a long-term skilled nursing facility.

7. To meet the requirements of a long-term skilled nursing facility, Respondent required that all Health Care Technicians I and II working in Residential Services, become certified Nurse Aides, and maintain their certification to meet the needs of residents at the Center. In its Specialized Services Procedural Manual, Respondent explained the registration procedures for all Health Care Technicians to take a Nurse Aide course at O’Berry Center, the course requirements, the NNAAP examination, and the consequences if staff failed the required reading asset test, CNA course, and NNAAP exam. (Resp Exhs 1 & 2)

8. In 2006, Respondent began notifying 750 employees that they were required to obtain their CNA credentials. In April of 2006, Respondent began its first in-house CNA training classes for its employees through Wayne Community College. Respondent provided staff extra time to attend the CNA training course during work hours, and paid for staff to take the NNAAP exam two times. Employees would bear the expense of any additional attempts to pass that exam. If direct care staff did not pass the NNAAP exam and obtain his/her CNA credentials, Respondent would transfer that staff member to another position that did not require CNA credentials, such as cook or housekeeper, or transfer that employee to another Cluster home unit that had not converted into a long-term skilled nursing facility. Respondent would only transfer an employee if that employee requested a transfer. (Mays testimony)

9. Respondent’s Cluster 4 was the first cluster unit scheduled to convert to a long-term skilled nursing facility. Respondent anticipated that conversion to take place on September 1, 2009.

10. From February 2, 1996 until August 3, 2009, Petitioner worked as a Health Care Technician I at Respondent O’Berry Center. From 2007 until her dismissal, Petitioner worked in that position in Cluster 4 of Respondent’s residential group home units.

11. In late 2008 or early 2009, Respondent’s management directed all Health Care Technicians, including Petitioner, that they must obtain their CNA credentials by August 1, 2009. In accordance with its policy, Respondent paid the course tuition, work time, and exam expenses for those staff, and offered staff the option of taking the CNA course either at Wayne Community College, or on-site at Respondent’s campus. Petitioner attended the CNA course on Respondent’s campus.

12. The NNAAP consists of two parts: a written component/exam and a practical skills component. On January 26, 2008, Petitioner passed the written NNAAP exam, but did not pass the practical skills component of the NNAAP. (Resp Exh 6)

13. By letters dated June 4, 2008, and February 10, 2009, Respondent reminded Petitioner that she had to obtain her CNA credentials by August 1, 2009. It also informed Petitioner that since she failed to obtain certification twice, she would have to pay for any third attempt, and would be required to do so on her own time. (Resp Exh 9)

14. On May 31, 2009, Petitioner retook the practical skills component of the NNAAP exam, but did not pass that component. (Resp Exh 7)

15. On June 4, 2009, Center Director, Dr. Frank Ferrell, conducted a meeting with Petitioner and another Cluster 4 Health Care Technician who had not obtained her CNA certifications. At that meeting, Ferrell distributed a letter, dated June 4, 2009, to the attendees, and explained the contents of that letter. In this letter, Respondent reminded Petitioner that she must obtain her CNA certification by August 1, 2009 in order to remain employed with Respondent as a Health Care Technician in Cluster 4. Respondent listed three options for Petitioner to avoid dismissal.

a. First, Petitioner could obtain her CNA certification by retaking the NNAPP at her own expense and on her own time.

b. Second, Petitioner could apply for a transfer to another position at O’Berry for which she was qualified, but which did not require CNA credentials. Petitioner could transfer to either a Health Care Technician position in a cluster not yet scheduled for conversion, a housekeeping job, or a cook position.

c. Third, unless Petitioner obtained her CNA certification, or was hired into another position where such credentials were not yet required, Petitioner would be terminated effective August 1, 2009. (Resp Exh 10)

16. On July 30, 2009, Petitioner received a notice for pre-disciplinary conference with Mr. Lynwood Dees, the Cluster 4 administrator. The evidence at hearing showed that this notice was incorrectly dated as 6/30/2009. (Resp Exh 4) On July 31, 2009, Mr. Dees conducted the pre-disciplinary conference with Petitioner by telephone. Petitioner advised Dees that she had mailed a money order that morning to retake the practical skills portion of the NNAAP exam.

17. By letter dated August 3, 2009, Mr. Dees dismissed Petitioner from employment for the unacceptable personal conduct of insubordination; namely, for failing to obtain her CNA certification, and thus, failing to “carry out a reasonable order as instructed by Mr. Farrell.” In this letter, Dees also noted that Petitioner did not attempt to seek a different position that did not require CNA certification, and failed to take advantage of a third opportunity to take the practical skills component of the NNAAP. (Resp Exh 5)

18. Petitioner appealed her dismissal through Respondent’s internal grievance process. On November 16, 2009, Respondent’s Secretary upheld Petitioner’s dismissal from employment.

Adjudicated Facts

19. At hearing, Petitioner described her efforts to obtain another position with Respondent before August 1, 2009. From January 2009 through August 1, 2009, Petitioner called Angela McLamb Gurley, Respondent’s Human Resources recruiter, every Wednesday to determine what jobs had been posted with Respondent.

a. Between January 9, 2009 and August 1, 2009, Petitioner applied for any open Health Care Technician (HCT) I, HCT II, or housekeeping jobs in all Clusters, except Cluster 4. To apply for a HCT I position not yet requiring CNA certification, Petitioner submitted a transfer slip to the cluster administrator of the position for which she was applying, and left a transfer slip on either the desk of Mr. Dees’ secretary, or in the Mr. Dees’ box. Mr. Lynwood Dees was employed as the Cluster 4 administrator at that time. To apply for open HCT II or housekeeping positions, Petitioner submitted an application to the Human Resources office.

b. In addition, Petitioner talked with Mr. Dees “every two weeks,” and asked if he had found her a job. (T p 46-47) She also talked with other Cluster unit managers, such as Mr. Vaughn and Vickey Nickerson, about their open positions. Other Cluster unit managers told Petitioner that Mr. Dees had declined Petitioner’s transfer requests to other cluster units.

20. At hearing, Petitioner did not recall the specific jobs for which she filed applications or submitted transfer requests.

21. A preponderance of the evidence at hearing showed that from January 2009 until August 1, 2009, there were 33 Health Care Technician positions, not requiring CNA certification, posted or vacant at Respondent’s residential group homes. Respondent’s Human Resources records showed that Petitioner applied for four of those positions. Of those four positions, Human Resources considered Petitioner “qualified” for the HCT I position, “qualified” for the Health Care Supervisor I position, and “highly qualified” for HCT II position that was posted on July 24, 2009. Since Respondent’s HR Office is not involved in the lateral transfer process, it did not receive or maintain copies of Petitioner’s transfer request slips.

22. At hearing, Petitioner acknowledged that she did not pass the practical skills component of the NNAAP exam by August 1, 2009. She took the practical skills exam in January 2008 and May 2009, but did not pass. She could not retake the practical skills component again until she had the money to pay for the exam. She tried hard to pass the practical skills part before August 3, 2009, but failed the practical skills exam on May 31, 2009.

23. The undisputed evidence proved that Petitioner passed the NNAAP practical skills component in January 2010, and Petitioner was listed with the Nurse Aide Registry on January 22, 2010.

24. At hearing, Mr. Lynwood Dees, Cluster 4 administrator, recalled asking Petitioner if she had obtained her CNA certification before August 1, 2009. Petitioner responded that she had not yet applied to take the exam, because money was an issue, and she wanted to be paid so she could take the exam.

25. In contrast to Petitioner’s testimony, Mr. Dees did not recall talking with Petitioner about transferring to another position. Dees asserted that he never received transfer requests from Petitioner from January 2009 through August 2009, and no one ever requested his recommendation of Petitioner for another job during that time.

26. Mr. Dees confirmed that five employees, including Petitioner, failed to obtain their CNA certification by August 1, 2009. He also verified that two of those five employees moved into non-CNA credentialed positions within Cluster 4, one employee transferred to another cluster unit, and one employee obtained her CNA certification.

27. Mr. Dees acknowledged that S.L. worked as a health care technician in Cluster Unit 4-2 during this same timeframe. As part of the overall Cluster 4, and thus, like Cluster unit 4-3, Cluster 4-2 unit was scheduled to convert to a long-term skilled nursing facility by September 2009. Dees confirmed that S.L.’s CNA certification lapsed during this time, and she was not CNA certified as of August 3, 2009. Dees verified that S.L. passed the written part of the NNAAP, but failed the practical skills part of the NNAAP exam after taking it in September or October of 2009, and again in December 2009.

28. The preponderance of the evidence established that due to reasons beyond Respondent’s control, Respondent’s Cluster 4 did not convert to a long-term skilled nursing facility until March or April of 2010. Respondent reasonably expected it would convert to the long-term skilled facility by September 1, 2009, since all construction on renovating Cluster 4 was completed by July 31, 2009.

a. Mr. Dennis Mays was Respondent’s Program Director who supervised the residential clusters at Respondent O’Berry Center. Mays initially explained that he reasonably expected, on or about August 1 or 3, 2009, that Cluster 4-3 would begin moving into the renovated building that housed Cluster 4 around October 1, 2009. However, later in this testimony, Mays indicated it was in “mid-August,” when he expected Cluster, 4-3 would not move into the skilled nursing facility until October 2009.

b. The building inspectors did not conduct its inspection of the building until October 29, 2009. Due to inspection issues related to ductwork and code issues, Inspection and code issues delayed the move until October 2009, then December 2009, and then March 2010. Because of the inspection issues, Respondent did not receive a certificate of occupancy, and DHHS approval for the project until March 2010.

29. A preponderance of the evidence showed that Respondent, including Mr. Dees, allowed S.L. to continue working without her CNA certification in Cluster 4-2 until March 2010, since Cluster 4-2 had not converted to a long-term skilled nursing facility until then. Just before the March 2010 conversion of Cluster 4-2 to a long-term skilled nursing unit, S.L. requested a transfer to another non-CNA certified position. Mr. Dees granted S.L.’s request. (Dees' testimony)

30. Mr. Dees did not recall discussing termination from employment with S.L. He did talk with S.L. about obtaining her CNA certification, and the issues surrounding that. Neither did Mr. Mays recall when Respondent examined health care technician S.L.’s situation involving her CNA certification. He did recall that S.L. was supposed to take the practical skills portion of the NNAAP exam in September 2009, and that she retook that exam component again in December 2009.

31. The preponderance of the evidence showed that when Petitioner became certified as a CNA on January 22, 2010, Cluster 4-3 had not converted into a long-term skilled nursing facility. When Respondent issued its Final Agency Decision upholding Petitioner’s termination in November 2009, Cluster 4-3 had not converted into a long-term skilled nursing facility.

32. A preponderance of the evidence showed that Petitioner was fully qualified for all the Health Care technicians positions she held at Respondent’s facility. At the time of her dismissal, Petitioner had employed by Respondent for approximately 13 years. Petitioner “served O’Berry Center for over a decade and would love nothing more than to retire providing the facility reputable service.” (Petition attachment, pg 4)

33. Mr. Dees acknowledged that Petitioner was a good employee who had no disciplinary actions filed against her. He only fired Petitioner, because she failed to obtain her CNA certification by August 1, 2009.

34. Mr. Dees acknowledged at hearing that:

It is typical, usual, for our staff to continue to work until it was actually required to convert. It is only after the conversion that they go under the clinical supervision of that nurse.

(T p 114) Mr. Dees also admitted that Petitioner could have continued working in her cluster unit, without her CNA certification, until Cluster 4-3 converted to a long-term skilled nursing facility.

35. The preponderance of the evidence showed that Respondent decided to terminate Petitioner from employment at the same time it “reasonably expected” Cluster 4-3 would not undergo conversion to a skilled nursing facility until October 2009. (Mays) The only explanation Respondent provided as to why it decided to terminate Petitioner during the same time, was May’s statement that, “we needed to do that.” Mr. Mays acknowledged that, he did not understand why “there hadn’t been a transfer request or some request from her [Petitioner] to move, and that was puzzlement to me.” Mays never asked Petitioner about that matter. He asked Mr. Dees if he had received a transfer request from Petitioner, and Dees said he had not. At the time of the hearing, Mr. Mays did not know if Petitioner’s position had been filled by another employee. Petitioner was the only health care technician Respondent terminated for failing to obtain her CNA credentials.

36. Neither Dees nor Mays offered any credible explanation why Respondent did not terminate health care technician S.L. from her job for failing to obtain CNA certification, but terminated Petitioner from the same position. Respondent explained that S.L. was treated differently because she was renewing her CNA certification, whereas Petitioner was obtaining her initial CNA certification. Respondent’s explanation was not plausible, given Petitioner ultimately obtained her CNA certification in January 2010, and S.L. never passed the practical skills exam to become CNA certified. Respondent did not even discuss terminating S.L. from her position, while it offered no explanation why it pursued termination of Petitioner, other than, “we needed to do that.” (T p 121) When Respondent transferred S.L. to a non-CNA position in March 2010, Petitioner had held her CNA certification for 2 months.

CONCLUSIONS OF LAW

1. Pursuant to Chapters 126 and 150B of the North Carolina General Statutes, the Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this case, and has the authority to issue a Decision to the State Personnel Commission (“SPC”).

2. All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder. To the extent, the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.

3. “No career State employee subject to the State Personnel Act shall be discharged . . . for disciplinary reasons, except for just cause.” N.C. Gen. Stat. § 126-35(a).

4. At the time of her dismissal, Petitioner was a career State employee entitled to the protections under the State Personnel Act.

5. Pursuant to N.C. Gen. Stat. § 126-35(d) the agency employer has the burden of proving just cause to dismiss a career State employee, who is subject to the State Personnel Act.

6. In North Carolina Department of Environment and Natural Resources, Division of Parks and Recreation v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004), the North Carolina Supreme Court stated that:

. . . determining whether a public employer had just cause to discipline its employee requires two separate inquires: first, whether the employee engaged in the conduct the employer alleges, and second, whether that conduct constitutes just cause for [the disciplinary action taken]. (citing Sanders v. Parker Drilling Co., 911 F.2d 191, 194 (9th Cir. 1990), cert. denied, 500 U.S. 917, 114 L. Ed. 2d 101 (1991)).

7. 25 NCAC 01J .0615(b) provides:

(1) Employees in such classifications shall obtain and maintain current, valid credentials as required by law.  Failure to obtain or maintain the legally required credentials constitutes a basis for immediate dismissal without prior warning, consistent with dismissal for unacceptable personal conduct or grossly inefficient job performance.  An employee who is dismissed for failure to obtain or maintain credentials shall be dismissed under the procedural requirements applicable to dismissals for unacceptable personal conduct or grossly inefficient job performance.

8. A preponderance of the evidence showed that as of August 1, 2009, Petitioner had failed to obtain a CNA certification as required by Respondent.

9. However, the preponderance of the evidence also showed that Respondent treated Petitioner differently than another Health Care Technician. While Respondent concluded terminated Petitioner from employment in August 2009, it allowed another Health Care Technician in Petitioner’s Cluster, who did not have her CNA certification, to continue working for another 7 months until Cluster 4 actually converted to a long-term skilled nursing facility. Respondent terminated Petitioner because, “we needed to do that,” but did not discuss terminating S.L., a similarly-situated health care technician. Mr. Dees acknowledged that Petitioner was a good employee. He opined that Petitioner could have continued working in her cluster unit, without her CNA certification, until Cluster 4-3 converted to a long-term skilled nursing facility in March 2010. Petitioner was the only health care technician that Respondent fired for failing to obtain her CNA credentials. Respondent treated Petitioner unfairly by failing to afford Petitioner the same accommodation it afforded other health care technicians, including health care technician S.L.

10. The preponderance of evidence also established that at the same time Respondent was terminating Petitioner from employment for failing to obtain her CNA certification, Respondent reasonably expected Cluster 4 would not be converting to a long-term care skilled nursing facility until at least October 2009. Respondent’s explanation as why it terminated Petitioner, i.e. that it decided “we needed to do that,” was not a plausible explanation as to why it terminated Petitioner when Respondent reasonably expected, at the same time, that it would not convert Cluster 4 to a long-term care skilled nursing facility until at least October 2009. Given those circumstances, it was not reasonable to fire Petitioner for failing to become CNA certified, when the basis for requiring CNA certification, had not occurred. Since the conversion did not occur until March 2010, approximately 7 months after Respondent terminated Petitioner’s employment. Respondent lacked just cause to dismiss Petitioner from employment.

11. Based on the foregoing reasons, Respondent lacked just cause to dismiss Petitioner from employment for failing to obtain her CNA certification by August 1, 2009.

12. Pursuant to N.C. Gen. Stat. § 126-4(11) and 25 NCAC 01B .0421, the State Personnel Commission is authorized to award full or partial back pay in all cases in which back pay is a requested or possible remedy. As the prevailing party under N.C. Gen. Stat. §126, Petitioner is entitled to recoup the appropriate remedies enumerated under 25 NCAC 01B .0421.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Administrative Law Judge determines that Respondent lacked just cause to terminate Petitioner’s employment. The undersigned determines that the State Personnel Commission should REVERSE Respondent’s decision to discharge Petitioner from employment, and award Petitioner any appropriate remedies set out in 25 NCAC 01B .0421.

ORDER AND NOTICE

The North Carolina State Personnel Commission will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it 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(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

This the 21st day of June, 2010.

_________________________________

Melissa Owens Lassiter

Administrative Law Judge

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