STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MACON 07 OSP 0945

)

PAM MOSES, )

Petitioner )

) DECISION

v. )

)

MACON COUNTY HEALTH DEPT, )

Respondent )

This matter was heard before the Honorable Donald W. Overby, Administrative Law Judge, presiding on May 30, 2008 in Macon County, North Carolina.

APPEARANCES

Petitioner: Pam Moses, pro se

Respondent: Angela S. Beeker, Esq.

WHITMIRE & BEEKER

1612 Asheville Highway, Suite 4

Hendersonville, NC 28791

STATEMENT OF THE CASE

Petitioner, Pam Moses, appeals the decision of the Respondent to terminate her employment with the Macon County Health Department effective March 30, 2007. Petitioner contends that she was dismissed without just cause, and that procedurally she was denied her due process rights.

ISSUES TO BE DECIDED

Issue #1: Whether there was just cause for the Respondent to terminate Petitioner’s employment?

Issue #2: Whether Petitioner’s procedural due process rights were violated when Respondent terminated Petitioner’s employment?

FINDINGS OF FACT

1. Petitioner was hired as an Environmental Health Specialist Trainee on April 26, 1999 with the Respondent Health Department.

2. Petitioner achieved career status in January of 2000 as an Environmental Health Specialist with the Respondent Health Department.

3. Petitioner’s job duties entailed performing the necessary inspections for the issuance of well and septic tank permits. This job required regular contact with the public and other employees of the Respondent Health Department.

4. Pat Muse served as Petitioner’s supervisor from the time she was hired until he was transferred into The Food And Lodging Division of the Macon County Health Department in October of 2003.

5. While Mr. Muse was Petitioner’s supervisor, he received numerous complaints from the public regarding Petitioner’s unprofessional attitude towards and treatment of the septic and well installers and other real estate professionals requesting an inspection. Mr. Muse addressed Petitioner concerning these complaints each time he received one. Eventually, due to the number of complaints Mr. Muse was receiving from the public, he required that she attend a communications class on avoiding and dealing with conflict.

6. Petitioner attended and completed the seminar, but she did not think any of it applied to her and that it was a waste of her time. There was little or no improvement in the Petitioner’s communication skills and dealings with the public after attending the seminar.

7. For a period of time after the transfer of Pat Muse, there was no supervisor over the Environmental Health Specialists with the then Health Director, Ken Ring, serving as the only supervisor.

8. During the period of Petitioner’s employment with the Respondent Health Department, the Health Department was severely understaffed, leaving the Environmental Health Specialists unable to keep up with the demand for well and septic permits, which ran three to four months behind schedule, creating stress for everyone in the department and low morale.

9. There was not a question of Petitioner’s ability to perform the duties of the job, but there were on-going concerns about the complaints relating to the Petitioner and that she did not interact well with the public. The shortage of personnel within the department created an attitude of tolerance toward the intemperate nature of the Petitioner continuing up to the date of her termination, despite the mounting complaints, because if she was terminated it would only exacerbate getting the permits handled in a timely manner.

10. On January 13, 2005, Petitioner was warned in writing concerning an incident occurring on December 30, 2004 with septic installer Paul Higdon. During the inspection of a septic system at Wayah Creek Cottages, in particular the pumps, Ms. Moses arrived on the site and, with an arrogant, confrontational and unprofessional attitude, informed Mr. Higdon that things were going to be done her way. The inappropriate and unprofessional conduct of this meeting was in the presence of other members of the public, to the embarrassment of Mr. Higdon.

11. On at least one other occasion involving Mr. Higdon, Petitioner unnecessarily required Mr. Higdon to obtain the specifications from the manufacturer of a plastic box very commonly used in the installation of septic systems. Since the plastic box was commonly used in Macon County, Petitioner had previously seen the plastic box on other job sites. Mr. Higdon had used the same plastic box previously on numerous occasions and the sites were permitted without any problems.

12. The nature of Petitioner’s position necessarily often involved members of the public who were under stress because of time restraints and potential financial consequences. As such, it is important for the inspectors to help solve the problems. Petitioner’s attitude and confrontational manner oftentimes created more problems rather than any attempt at solving them.

13. From the time of Petitioner’s employment until December of 2005, Gary Nicholson served as the Human Resources Director for Macon County. As the Human Resources Director, Mr. Nicholson was responsible for, among other things, counseling employees regarding their conduct at work.

14. During his service as the Human Resources Director for Macon County, Mr. Nicholson counseled Ms. Moses regarding her inability to effectively deal with the public and other employees in the Health Department in a professional and courteous manner.

15. On August 22, 2005, Health Director Ken Ring met with Ms. Moses to address screaming voice mail messages that she had left on his answering machine and on Mr. Nicholson’s answering machine concerning the salary of a new employee at that time, Barry Patterson.

16. On October 3, 2005, Health Director Ring addressed an issue in writing regarding a complaint received from J. Neal, a local realtor, regarding Petitioner’s unprofessional treatment of Ms. Neal.

17. Petitioner’s performance review of May 24, 2006 was completed by her supervisor, Barry Patterson. Mr. Patterson noted in this review that he was still receiving too many complaints regarding Petitioner.

18. As supervisor, he received numerous complaints about the department, not limited to the Petitioner. It was his practice to “filter” the complaints in order to ascertain the validity of the complaints, and he did so with the complaints about the Petitioner. It was also his practice to not discipline the Petitioner if the complainant would not reduce the complaint to writing, as was the case in most of the instances involving the Petitioner. Because of the numerous complaints about the Petitioner, he spoke with her directly about the complaints.

19. In October of 2006, Petitioner was involved in a verbal confrontation with fellow employee Charles Womack because he had parked in her numbered parking space.

20. On another occasion with Mr. Womack, Petitioner became verbally abusive to Mr. Womack for taking the J. Neal file off her desk, although Mr. Womack had been asked to obtain the file by Health Director Ring.

21. On yet another occasion, Petitioner was vocally abusive to Mr. Womack on the phone for passing a septic system that she had previously denied. Mr. Womack offered to re-visit the site with Petitioner, but she refused. Prior to these incidences, Mr. Womack and Petitioner had a friendly, cordial and professional relationship. He had wanted to work through the problems with her and maintain a professional relationship; however, after this last incident, he could not maintain that relationship and attempted to distance himself from her.

22. Jack Morgan is the Director of the Code Enforcement Office for Macon County, the office of which is located in the same building as the Health Department. Mr. Morgan had many occasions to interact with Petitioner, and to view Petitioner’s interactions with other employees of the Health Department and the Code Enforcement Office. Mr. Morgan has received complaints from contractors regarding Petitioner’s treatment of them. Mr. Morgan has also been verbally accosted by Petitioner.

23. In March of 2007, Petitioner contacted the County Attorney, Lesley Moxley, concerning an easement that Petitioner had sent to Ms. Moxley to review. The County Attorney who preceded Ms. Moxley would review easements when presented to him. The County Attorneys’ offices where Ms. Moxley worked prior to Macon County did not review easements, and she adopted that practice in Macon County. Ms. Moxley told Petitioner that if she needed an easement reviewed, the North Carolina Attorney General’s Office could review them for her, but that she had reviewed the easement and saw no problem with the easement. Petitioner became very hostile and aggressive with Ms. Moxley and informed Ms. Moxley that she (Ms. Moxley) just needed to do her job. Ms. Moxley then stated that she did not have to be talked to in that manner and that, in the future, any correspondence regarding easements should come from the Health Director.

24. Petitioner did apologize to Ms. Moxley by email.

25. On March 28, 2007, Barry Patterson sent a Notice of Predisciplinary Conference to Petitioner informing her that a predisciplinary conference would be held on March 29, 2007 at 3:00 p.m. The Notice of Predisciplinary Conference stated that the basis for Petitioner’s proposed termination was unacceptable personal conduct for, among other things, her March 2007 rude behavior toward senior County staff, Ms. Moxley.

26. On March 29, 2007, a predisciplinary conference was held. In attendance were Petitioner, then Health Director Ken Ring, Barry Patterson and Human Resources Director Wilma Anderson. Mr. Ring reviewed in detail the unacceptable personal conduct noted in the March 28, 2007 Notice of Predisciplinary Conference. Petitioner was given an opportunity to respond to the allegations of unacceptable personal conduct. She declined to respond at this conference, but submitted her response subsequently in writing. At the conclusion of the hearing, Petitioner was informed that a decision conference would be held at 4:00 p.m. on March 30, 2007.

27. On March 30, 2007, a decision conference was held. Present were Health Director Ken Ring, supervisor Barry Patterson, and Human Resources Director Wilma Anderson. Petitioner was properly on notice but did not attend the decision conference. At 4:55 p.m., Barry Patterson reached Petitioner at her home and informed her of the decision.

28. On April 4, 2007, Health Director Ken Ring sent Petitioner a letter by certified mail terminating her employment with the Macon County Health Department effective March 30, 2007. The letter stated that the basis for the decision to terminate her employment was, among other things, information that they had reviewed with her at the predisciplinary conference.

29. This Court specifically finds that the conduct by Petitioner toward Ms. Moxley alone would have been sufficient for termination in that the conduct was such that no one should expect to receive a warning prior to termination, as provided by law. The totality of the circumstances and the tolerance of the Petitioner’s intemperance as substantiated by the other allegations further justify the termination, which was probably overdue.

30. Petitioner followed the local administrative appeal procedure to appeal her dismissal. The Health Director affirmed his decision to terminate her employment.

31. Petitioner then filed this action with the Office of Administrative Hearings to appeal her termination of employment from the Macon County Health Department.

32. Petitioner does not accept “constructive criticism” well and at the very least becomes aggressively defensive. Her attitude, even as displayed in the hearing, is that she is correct in all instances, despite what others, and especially superiors, might tell her. Petitioner relied in her defense on errant interpretation of applicable law, but when the Court demonstrated the error, she acknowledged such, but again tried to shift the blame.

CONCLUSIONS OF LAW

1. Respondent has the burden of proof that there was “just cause” for the termination of Petitioner’s employment with the Respondent Health Department. Respondent has met its burden of proof, and has established all grounds as set forth in the predisciplinary notice.

2. Respondent has the burden of proof that Petitioner was given adequate procedural due process in the termination of Petitioner’s employment with the Respondent Health Department. Respondent has met its burden of proof. Although the notice may not have been exemplary, it was adequate and there was no denial of procedural due process.

3. Petitioner has a long history of unacceptable personal conduct with the Respondent Health Department including many incidents of unprofessional, rude and arrogant behavior towards the public and fellow employees.

4. Petitioner’s verbal attack on the County Attorney, Lesley Moxley, in March of 2007 was, at the time of Petitioner’s termination, the most recent and a current incident of unacceptable personal conduct as proscribed by 25 NCAC 1I.2304(a).

5. Petitioner’s verbal attack on County Attorney Lesley Moxley in March of 2007, standing alone and without regard to the other allegations, constituted unacceptable personal conduct for which no employee should expect to receive a prior warning within the meaning of 25 NCAC 1I.2304(b)(1). An employee should not expect to receive a warning when they verbally attack the County Attorney, an appointed public official.

6. Petitioner’s verbal attack on County Attorney, Lesley Moxley, in March of 2007 constituted unacceptable personal conduct, in particular, conduct unbecoming an employee that is detrimental to the Respondent Health Department’s service within the meaning of 25 NCAC 1I.2304(b)(5). Petitioner’s verbal attack on the County Attorney resulted in future requests for easement review having to come directly from the Health Director. This added layer of bureaucracy is detrimental to the agency’s service in that it slows down the Health Department’s ability to submit timely requests for service to County Attorney’s Office, thereby slowing down the process for the public in receiving a septic or well permit when an easement is involved.

7. Respondent’s notice of the pre-dismissal conference, the letter dated March 28, 2007, was issued in conformance with requirements of 25 NCAC 1I.2308(4)(c).

8. Respondent conducted a predisciplinary conference on March 29, 2007 in conformance with the requirements of 25 NCAC 1I.2308(4)(d) and (e).

9. Respondent’s April 4, 2007 letter terminating Petitioner’s employment was issued and sent in conformance with the requirements of 25 NCAC 1I.2308(4)(f) and (g).

DECISION

NOW THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, it is the decision of this Administrative Law Judge that the Macon County Health Department enter a decision terminating Petitioner’s employment by reason of her personal conduct in March of 2007.

IT IS ALSO ORDERED that, based upon the motion of Respondent made in limine that the caption of this action shall be amended to reflect that the name of the Respondent is the Macon County Health Department.

ORDER AND NOTICE

Pursuant to N.C.G.S. § 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.G.S. § 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.

In so far as this matter involves a local government employee subject to Chapter 126, pursuant to N.C.G.S. § 126-5(a)(2), the decision of the State Personnel Commission, absent a finding of discrimination, shall be advisory to the local appointing authority which shall render a Final Agency Decision. Further requirements of rights, notices and timelines to the Parties shall be forthcoming from the State Personnel Commission and/or the local appointing authority as the circumstances and state of the process may dictate.

This the 30th day of June, 2008.

_______________________________________

Donald W. Overby,

Administrative Law Judge

ax: (919) 733-3407

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download