STATE OF NORTH CAROLINA
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 09-OSP-3582
ESTHER K. DUNN, )
)
Petitioner, )
)
vs. ) DECISION
)
NORTH CAROLINA DEPARTMENT )
OF COMMERCE, DIVISION OF )
TOURISM, FILM AND SPORTS )
DEVELOPMENT, )
)
Respondent. )
THIS contested case was heard by Beecher R. Gray, Administrative Law Judge, (the “Court”) of the North Carolina Office of Administrative Hearings (the “OAH”) on April 26 and 27, 2010 at the OAH, 1711 New Hope Church Road, Raleigh, North Carolina. (Trial Transcript, volume I, cover page; Trial Transcript, volume II, cover page[1]), in response to Petitioner’s June 3, 2009 Petition for a Contested Case Hearing in this matter and in accordance with the Rules of the North Carolina Office of Administrative Hearings, 26 N.C.A.C. 3.0101, the North Carolina Rules of Civil Procedure, the North Carolina Rules of Evidence, the Orders entered by the Court in this matter, the stipulations of the parties, and applicable law.
APPEARANCES
WHEREAS the Petitioner in this matter, Esther K. Dunn, was represented in this contested case proceeding by Charles E. Monteith, Jr., Esquire, and Shelli Henderson Rice, Esquire, of the law firm of Monteith & Rice, PLLC, 422 Saint Mary’s Street, Suite 6, Raleigh, North Carolina 27605-1734 (T. 2, 288); and
WHEREAS the Respondent in this matter, the Division of Tourism, Film and Sports Development of the North Carolina Department of Commerce, was represented in this contested case proceeding by Anne J. Brown, Esquire, Special Deputy Attorney General, and I. Faison Hicks, Esquire, Special Deputy Attorney General, both of the North Carolina Department of Justice, 114 West Edenton Street, Raleigh, North Carolina 27603, Post Office Box 629, Raleigh, North Carolina 27602-0629 (T. 2, 228); and
ISSUE
WHEREAS the issue for trial in this contested case proceeding was whether the Respondent wrongfully discharged Petitioner without just cause (Petitioner’s attachment to her June 3, 2009 Petition for a Contested Case Hearing, numbered page 1, paragraph 1; T. 15-21); and
WHEREAS Respondent contended in its Prehearing Statement and at trial that it dismissed Petitioner from her employment with Respondent because Petitioner knowingly engaged in unacceptable personal conduct, as defined by 25 N.C.A.C. 1J.0614(i), to wit: that, on February 12, 2009, without authorization from Respondent or the North Carolina Correctional Institute for Women (the “Women’s Prison”), where Petitioner’s office was located and where Petitioner worked, Petitioner duplicated an official, authorized key to a high-security lock to the gates located inside the Women’s Prison, an act which Respondent contended constituted a gross breach and violation of security procedures at the Women’s Prison (Respondent’s Prehearing Statement, numbered paragraph 2 at pages 2-3; T. 15-21); and
WHEREAS Petitioner contended in her Petition for a Contested Case Hearing and at trial that: (i) she did not make or cause to be made any such duplicate gate lock key (Petitioner’s attachment to her June 3, 2009 Petition for a Contested Case Hearing at page 2; T. 272); and (ii) no one associated with Respondent or the Women’s Prison ever told her that she was not permitted and/or that she was, in fact, forbidden to make a duplicate key to the lock to the gates located inside the Women’s Prison (Petitioner’s attachment to her June 3, 2009 Petition for a Contested Case Hearing at page 2; T. 272); and
WHEREAS the parties agreed that the statutes applicable to the Court’s adjudication of the issue identified in the preceding paragraphs include N.C. Gen. Stat. §§126-1, et. seq., and N.C. Gen. Stat. §§150B-1, et seq., as well as the relevant State administrative regulations and legal decisions (Respondent’s Prehearing Statement, numbered paragraph 1 at page 1; Petitioner’s Prehearing Statement, numbered paragraph I.B. at pages 1-2); and
WITNESSES
WHEREAS the witnesses called by Respondent to testify at the trial of this contested case were: (i) Bianca Harris, the Deputy Warden of the “Women’s Prison (T. 23); (ii) Wally Wazan, the Director of Visitor Services for Respondent and the Department of Commerce employee with management and supervisory responsibility for Respondent’s Travel and Tourism Inquiry Program at the Women’s Prison (T. 47, 234-241); (iii) Doris Sayles, the Assistant Superintendent for Corrections, Custody and Operations at the Women’s Prison (T. 117); (iv) Captain Leonard Hatley, the Correctional Captain for the Women’s Prison (T. 126); (v) Lori Murrell, an employee of Respondent working at Respondent’s Travel and Tourism Inquiry Program at the Women’s Prison (see T. 168-187); and (vi) Helen McNeill, the Assistant Superintendent for Programs at the Women’s Prison (T. 190); and
WHEREAS the witnesses called by Petitioner to testify at the trial of this contested case were: (i) Esther K. Dunn, Petitioner in this contested case (T. 242), who was also cross-examined at trial by Respondent (T. 271-294); (ii) Wally Wazan (T. 234); and (iii) Captain Leonard Hatley (T. 295); and
EXHIBITS
WHEREAS, during the course of the trial of this contested case, the Court admitted into evidence the following Trial Exhibits at the request of Respondent:
i) Respondent’s Exhibit number 1, April 22, 2010 Employee/Witness Statement Form, Doris M. Sayles, Assistant Superintendent for Custody and Security, North Carolina Correctional Institution for Women in Raleigh (T. 120-21);
ii) Respondent’s Exhibit number 2, May 5, 2009 Memorandum from the Honorable J. Keith Crisco, Secretary of the North Carolina Department of Commerce, to Esther K. Dunn (T. 88-89);
iii) Respondent’s Exhibit number 3, April 2, 2009 Employee Grievance Filing Form, Esther K. Dunn (T. 88);
iv) Respondent’s Exhibit number 6, February 27, 2009 Memorandum from Wally Wazan to Esther K. Dunn Re: Dismissal Due to Unacceptable Personal Conduct (T. 81);
v) Respondent’s Exhibit number 7, February 16, 2009 Pre-Disciplinary Conference Notification – Revised – From Wally Wazan to Esther K. Dunn (T. 79);
vi) Respondent’s Exhibit number 8, February 16, 2009 Pre-Disciplinary Conference Notification From Wally Wazan to Esther K. Dunn (T. 79);
vii) Respondent’s Exhibit number 9, February 16, 2009 Employee/Witness Statement Form of Captain Leonard Hatley, Correctional Captain, North Carolina Correctional Institution for Women (T. 143);
viii) Respondent’s Exhibit number 10, February 12, 2009 Investigatory Placement with Pay Memorandum from Wally Wazan to Esther K. Dunn (T. 76);
ix) Respondent’s Exhibit number 11, February 12, 2009 North Carolina Department of Corrections Incident Report by Assistant Superintendent Helen L. McNeill (Investigating Officer: Captain Leonard A. Hatley) (T. 149);
x) Respondent’s Exhibit number 12, February 12, 2009 North Carolina Department of Corrections Internal Investigation, Esther K. Dunn (T. 138);
xi) Respondent’s Exhibit number 13, February 12, 2009 Employee/Witness Statement Form, Esther K. Dunn (T. 140-41);
xii) Respondent’s Exhibit number 14, February 12, 2009 North Carolina Department of Corrections Internal Investigation, Lori Murrell (T. 140);
xiii) Respondent’s Exhibit number 15, February 12, 2009 Employee/Witness Statement Form, Lori Murrell (T. 141);
xiv) Respondent’s Exhibit number 16, February 12, 2009 North Carolina Department of Corrections Internal Investigation, Jade Feliciano [misdated “1/12/09”] (T. 142);
xv) Respondent’s Exhibit number 17, February 11, 2009 Written Warning for Unsatisfactory Job Performance from Wally Wazan to Esther K. Dunn (T. 76);
xvi) Respondent’s Exhibit number 19, May 7, 2008 Email Message from Assistant Superintendent Helen McNeill to Many Recipients, Including Esther K. Dunn (T. 197);
xvii) Respondent’s Exhibit number 20, August 17, 2007 Email Message from Assistant Superintendent Helen McNeill to Esther K. Dunn (T. 204); and
WHEREAS, during the course of the trial of this contested case, the Court admitted into evidence the following trial Exhibits at the request of Petitioner:
i) Petitioner’s Exhibit number 1, North Carolina State Government, Performance Management Program Work Plan, Esther K. Dunn, May 26, 2005 (Bates stamp numbers 000040-000044) (T.306);
ii) Petitioner’s Exhibit number 2, North Carolina State Government, Performance Management Program Work Plan, Esther K. Dunn, May 26, 2005 (Bates stamp numbers 000045-000048) (T.306);
iii) Petitioner’s Exhibit number 3, North Carolina State Government, Performance Management Program Work Plan, Esther K. Dunn, May 26, 2005 (Bates stamp numbers 000049-000053) (T.306);
iv) Petitioner’s Exhibit number 4, Interim Performance Review, Esther K. Dunn, dated October 27, 2008 (“Period From: May 1, 2008 to October 31, 2008”) (Bates stamp number 000054) (T.306);
v) Petitioner’s Exhibit number 5, North Carolina State Government, Performance Management Program Work Plan, Esther K. Dunn, “Effective Date: May 2006” (“Appraisal is for period of: May 1, 2006 to April 30, 2007”) (Bates stamp numbers 000056-000060) (T.306);
vi) Petitioner’s Exhibit number 6, North Carolina State Government, Performance Management Program Work Plan, Esther K. Dunn, May 1, 2008 (Bates stamp numbers 000061-000065) (T.306);
vii) Petitioner’s Exhibit number 12, “North Carolina Department of Commerce, Office of Human Resources, Documentation Regarding Ms. Esther K. Dunn, Inquiry Program Manager, Prepared by Mr. Wally Wazan, Director of Visitor Services, Attention: Ms. Toni Stuckey, Employee Relations/Staff Development, and Mr. Bryan Gupton, Director of Operations and Industry Relations,” undated (Bates stamp numbers 000161-000165) (T.306); and
WHEREAS the Court did not rely upon or take into consideration in reaching its decision in this matter the contents of any documents, records or proposed Trial Exhibits except for those that were actually admitted into evidence as Trial Exhibits during the trial of this contested case proceeding, as identified above; and
STIPULATIONS
WHEREAS the parties stipulated on the record prior to the beginning of the trial of this matter that:
1. Respondent’s Trial Exhibits, numbers 1 through 21, are true and correct copies of the originals of said documents;[2]
2. Petitioner’s Trial Exhibits, numbers 1 through 14, are true and correct copies of the originals of said documents;[3] and
3. Petitioner commenced her full-time employment with the North Carolina Department of Commerce in 2005; was assigned in 2007 to work full-time for the Department of Commerce at the Department’s tourism facility located at the North Carolina Correctional Institution for Women; and was dismissed from her employment with the Department of Commerce in February 2009. Accordingly, at the time of her dismissal by Respondent, Petitioner was a career employee of the Government of the State of North Carolina. (Joint Trial Stipulation, read into the record on April 26, 2010, T. 13-14, and filed with the OAH on April 27, 2010); and
WHEREAS the parties further stipulated prior to the beginning of the trial of this matter that “notice of [the] hearing [of this contested case proceeding] [was] proper” (T. 9-10); and
THE COURT, having carefully considered all of the competent, admissible testimony and all of the other competent, admissible evidence that was admitted and received at trial, as well as the parties’ pleadings, briefs, written summations and other papers and arguments, hereby makes the following Findings of Fact and Conclusions of Law based upon the competent, admitted evidence that the Court believes is credible and upon the applicable law:
I. FINDINGS OF FACT
The Petitioner’s Employment History With the Respondent
1. The parties received notice of hearing, by certified mail, more than 15 days prior to the hearing date.
2. Petitioner began working for Respondent as a temporary employee in March 2004 and became a permanent employee of Respondent in March 2005. (T. 242-43)
3. On August 1, 2007, Petitioner began working for the North Carolina Department of Commerce’s Division of Tourism, Film and Sports Development as the Supervisor of its Inquiry Program. (T. 248)
The Inquiry Program
4. The Inquiry Program, also known as the 1-800 VISITNC Call Center, is a telephone bank call center operation that is designed to provide travel and tourism information to people who are or may be interested in vacationing in or traveling to North Carolina. (See en/TourismServices, “)
5. Among other things, the Inquiry Program facilitates and promotes tourism in the State. (See en/TourismServices, “)
6. For the past 21 years, the Inquiry Program has been operated primarily from the Women’s Prison. (See en/TourismServices, “; T. 45-46)
7. The Inquiry Program is comprised of three components: (i) the Call Center, to which potential visitors to North Carolina call in, seeking information and assistance regarding travel and tourism opportunities in North Carolina; (ii) the Fulfillment Section, where packages of travel and tourism literature, brochures and other items are assembled, placed into parcels and mailed from the Fulfillment Section to potential visitors to North Carolina who have telephoned the Call Center and asked for such packages; and (iii) the warehouse, where items such as travel brochures and other tourism literature and supplies are stored for use by the Inquiry Program. (See en/TourismServices, “)
8. The people who operate the telephones at the Call Center are all inmates at the Women’s Prison who fully have been trained to answer the entire range of questions concerning travel and tourism opportunities in North Carolina. (T. 32, 47, 48; See en/TourismServices, “)
9. By using inmates to perform this function, the North Carolina Department of Commerce saves the State’s taxpayers hundreds of thousands of dollars each year, provides inmates with real-world job skills and valuable work experience and gives inmates the opportunity to earn highly prized jobs that help to improve the quality of their lives while they are incarcerated. (See en/TourismServices, “)
10. The telephone lines at the Call Center operate 24 hours per day, seven days per week. (See en/TourismServices, “)
11. Inmate telephone operators working at the Call Center answer incoming telephone calls from 8:00 a.m. through 8:00 p.m., Monday through Friday of each week, from 8:00 a.m. through 5:00 p.m. on Saturday and Sunday of each week and from 9:00 a.m. through 5:00 p.m. on holidays. (See en/TourismServices, “)
12. The Call Center’s automated voice-mail telephone answering system receives and responds to incoming telephone calls during off hours. (See en/TourismServices, “)
13. The Respondent’s extensive travel and tourism advertising campaign encourages potential visitors to the State to seek more information about North Carolina from and 1-800-VISITNC. (See en/TourismServices, “)
14. As a result, in 2008, inmates at the Call Center answered nearly 50,000 telephone calls from potential visitors to North Carolina. (See en/TourismServices, “)
15. These inmates also prepared almost 300,000 travel and tourism packages for mailing to potential tourists in all fifty states, helping North Carolina to become the nation’s sixth most visited state, producing more than 190,000 jobs and generating over $1.34 billion in state and local taxes. (See en/TourismServices, “)
Petitioner’s Role With the Inquiry Program
16. As noted above, Petitioner was the Supervisor of Respondent’s Inquiry Program from August 1, 2007 through her termination by Respondent on February 27, 2009. (T. 248; Respondent’s Exhibit 6)
17. In this job, Petitioner supervised three of Respondent’s employees, Lori Murrell, Jade Feliciano, and Respondent’s warehouse manager, who, at one point, was Wade Bryant, until he retired and was replaced by David Malone. (T. 249)
18. During the period relevant to this dispute, Ms. Murrell directly supervised the telephone operator inmates who worked in the Call Center. (T. 48)
19. During the period relevant to this dispute, Mr. Feliciano directly supervised the inmates who worked in the Fulfillment Section. (T. 48)
The Women’s Prison and the Security Issues
Inherent to the Operation of the Institution
20. The Women’s Prison is located on Bragg Street in Raleigh on a 110-acre campus. Thirty-five of these 110 acres are surrounded by a high-security perimeter fence designed to prevent inmates from escaping from the prison. (T. 23-24, 26)
21. The prison’s inmates are housed and live inside this high-security 35-acre fenced-in area. (T. 23-24, 26)
22. The Women’s Prison is a maximum security prison which houses approximately 1,300 inmates, including convicted murderers and death-row inmates. (T. 23-24)
23. The highest danger and highest threat female offenders in the State of North Carolina are incarcerated at the Women’s Prison. (T. 23-24)
24. Adjacent to the Women’s Prison on two sides is a densely populated residential neighborhood where ordinary people live (T. 24-25) and where children play in their yards.
25. Adjacent to the Women’s Prison on another side is a wooded, swampy area leading directly to Interstate Highway 40. (T. 25)
26. An escaping inmate could use the swampy, wooded area adjacent to the prison as a stealthy means of egress from the area of the prison following an escape.
27. An escaping inmate could thereafter use Interstate Highway 40 as a means of quickly traveling from the Women’s Prison to almost any place in the United States.
28. Due to the fact that the Women’s Prison houses such potentially dangerous inmates and the additional facts that it is located in the heart of a major city, that it lies adjacent to a residential neighborhood, and that it is so close to a ready means of egress and rapid interstate travel, the security rules, procedures, and practices of the Women’s Prison designed to prevent inmate riots, escapes, and other security breaches play an extremely important role in protecting the lives and safety of everyone working in the prison, as well as members of the public generally.
29. As between the mission of the Inquiry Program in promoting tourism in North Carolina, on the one hand, and the mission of the Women’s Prison in preventing inmate escapes, riots, and other security breaches, on the other hand, the Women’s Prison’s mission takes top priority at all times, for reasons of public safety and security. (T. 36-37)
The Special Security Concerns Inherent to the Operation
of Respondent’s Inquiry Program Inside the Women’s Prison
30. Given that Respondent’s Inquiry Program operates inside the high-security, fenced-in area of the Women’s Prison, all of the security concerns referred to above apply to the operation of the Inquiry Program.
31. In addition, however, other aspects of the Inquiry Program render it a particular security challenge for the prison’s management. (T. 32)
32. For example, the inmates who work as telephone operators for the Respondent’s Inquiry Program in the Call Center at the prison are “life-term inmates” (T. 32), such that they might be motivated to try to escape from the prison.
33. Moreover, the two prison buildings that house the Inquiry Program’s on-site operations, Modular Building number 1, where the Call Center is housed, T. 132, and Modular Building number 2, where the Fulfillment Section is housed T. 132, are located within approximately 150 feet of a gated auxiliary entrance to the prison. (T. 32-33)[4]
34. This gated auxiliary entrance to the prison is different from the main entrance and security checkpoint at the prison, known as the “gatehouse,” where the majority of people coming into the prison must enter. (T. 25)
35. This gated auxiliary entrance to the prison is the entrance used by mail pick-up and delivery vehicles going into and out of the prison, vehicles bringing inmates into the prison and taking them out of the prison, trash pick-up trucks, which both enter and leave the prison’s secured area, and vendor vehicles of all kinds delivering products to the prison, including sometimes to the Inquiry Center, and thereafter driving out of the prison. (T. 32-33)
36. Given that the inmates who live and work in the area of the prison where the Inquiry Program operates are “lifers” (T. 32), who, by definition, are considered to be at-risk for an escape attempt, the location of Modular Buildings 1 and 2 in such close proximity to this auxiliary delivery and pick-up entrance to the prison gives rise to a heightened concern by prison officials that an inmate might hide in the some part of Modular Building 1 or 2 and then slip unobserved into the back of a vehicle once it is inside the prison. (T. 32-33)
37. Under such circumstances, it might be possible for an inmate to escape from the prison in the back of a pick-up and/or delivery vehicle. (See T. 32-33)
38. Furthermore, there are two Dempsey Dumpsters located inside the prison’s high-security, fenced-in area. (T. 135-36)
39. These Dempsey Dumpsters are located just a few feet away from Modular Building number 2, which houses the Inquiry Program’s Fulfillment Section, and a few more feet from Modular Building number 1, where the Call Center is located. (T. 135-36)
40. Prison officials have to contend with the fact that an inmate living or working in the area of the prison where the Inquiry Program operates might hide inside one of these two Dempsey Dumpsters. (T. 32-33)
41. These Dempsey Dumpsters are hydraulically lifted by trash pick-up trucks and are then emptied into the trash pick-up trucks before those trucks leave the prison through the auxiliary gate to dump their loads of trash off-site. (T. 33-34)
42. For this reason, the two Dempsey Dumpsters that are located just outside the Fulfillment Section and the Call Center are padlocked and are kept in a locked-down mode at all times except for when a trash pick-up truck is actually dumping the contents of these two Dempsey Dumpsters into the trash truck. (T. 135-36)
The Security Rules, Procedures and Practices Inside
the Prison, Where the Inquiry Program Operates
43. Many non-inmates work inside the Women’s Prison and must enter the prison once or more each day in order to go to work. (T. 28)
44. Normally, when entering the prison to go to work, these people must enter through its primary security checkpoint located in a building known as the “gatehouse.” (T. 25)
45. The majority of the members of the prison’s staff enter the prison each day for work through the gatehouse. (T. 25)
46. Persons wishing to enter the prison through the gatehouse must first pass through a security check point, show their photographic identification to the security personnel there and sign in on an entry roster that is maintained by the prison. (T. 25-26, 29)
47. If the person entering the prison is an employee of the prison or an employee of the Inquiry Program who works inside the prison, he or she must pass through this gatehouse security check point, give his or her official North Carolina State Government photographic identification card to the gatehouse security guard, allow that guard to “swipe” his or her official identification card through the prison’s computerized card sensing device and sign the prison’s entry roster maintained by the gatehouse’s security officials. (T. 25, 26, 29, 157, 158)
48. After complying with these procedures, rules, and practices, a security officer in the gatehouse may permit the entering employee to temporarily check out a key to certain of the locked areas inside the prison, including a gate lock key, to the extent that the entering employee can demonstrate that he or she actually needs such a key for his or her bona fide work duties and to the extent that such a key is available from the prison on that particular day. (T. 25-26, 29, 156-58)
49. If the security officer at the gatehouse permits the entering employee to check out a prison key, such as a gate lock key, for the day as he or she enters the prison to go to work, the entering employee has to sign for the key, which the officer then assigns to the employee, noting this fact on the prison’s key log. (T. 157)
The Internal Compartmentalization of the Women’s Prison
and the Role of Compartmentalization Design in Security and Public Safety
50. The prison’s Administrative Building is located on Bragg Street, just outside the 35-acre secured area of the prison and just a few yards from the prison’s high-security perimeter fence. (T. 39)
51. Inside the perimeter fence that surrounds the 35-acre secured area of the Women’s Prison, there are yet other fenced-in, locked and secured areas. (T. 26-27)
52. In fact, the inside of the 35-acre secured portion of the prison is compartmentalized into multiple secured areas. (T. 26-27)
53. This compartmentalization is accomplished by means of the existence of locked, fenced-in enclosures and locked buildings that are located inside the 35-acre secured area of the prison. (T. 27)
54. This internal compartmental design of the prison plays a vital role in security and public safety, enabling the prison’s security personnel to account for the whereabouts of inmates at any given time and to maintain appropriate control over the movement of the inmate population inside the prison. (T. 27)
55. In the event of an inmate riot, an escape attempt, or some other prison emergency, the prison’s security personnel could and would use the internal, secured compartments of the prison, both the lockable, fenced-in areas and the lockable buildings inside the prison, to quickly stop the spread of the emergency and to suppress it before it could become a threat to human safety. (T. 26-28)
56. They would do so by locking the prison down piece by piece, gate by gate, building by building and compartment by compartment, and then dispatching appropriate security personnel to the necessary locations to deal with and gain control over the emergency. (T. 26-28)
The Prison’s Key Control Policy During the Term of
Petitioner’s Employment
57. Not every person who works inside the prison is permanently assigned and allowed to keep a pass key that opens the locks securing the prison’s internal, secured compartments, including the gates to the fenced-in areas and the buildings inside the prison. (T. 28)
58. For those persons who work inside the prison and who do not have a permanently-assigned key, the prison’s key control policy during the period relevant to this case permitted them to check out a key either at the gatehouse or at what the prison refers to as “Master Control.” (T. 28-29)
59. During the period relevant to this case, if a person working inside the prison who had not been assigned a prison gate lock key could demonstrate that he or she actually needed such a key to do his or her work on a particular day, the prison’s key control policy permitted him or her to check a gate lock key out for the day from the prison’s security personnel responsible for the prison’s keys. (T. 29)
60. Such a person could do this at the gatehouse when he or she first reported to work, presented his or her identification card for “swiping” by the gatehouse security guard, and signed-in on the prison’s entry roster. (T. 29)
61. This key check-out policy was subject, however, to the prison’s strict rule that such persons must turn any checked-out key(s) back in to the prison’s security personnel at the end of the work day. (T. 30, 156-58)
62. During the period relevant to this case, some persons who worked inside the prison’s secured area were permitted, because of the nature of their work, to check out such a gate lock key every day when they reported to work, depending on the availability of such a key on any given day. (T. 29)
63. Petitioner was permitted, due to the nature of her work inside the prison, to check out an official, authorized Women’s Prison gate lock key each day when she reported to work at the prison, assuming that such a key was available. (T. 29)
64. In checking out this gate lock key each day, Petitioner was subject to the prison’s rule that she return the gate lock key to the prison’s security personnel at the end of the work day as she was leaving the prison. (T. 30, 156-58)
65. This gate lock key enabled Petitioner – and anyone else possessing this key – to unlock every internal, secured compartment, gate lock and building lock located inside the prison’s 35-acre high-security area. (T. 30, 135-36)
66. In particular, this official gate lock key to which Petitioner had daily access enabled her – and anyone else possessing this key – to open the padlocks which, in the case of an inmate riot or other prison security emergency, were (and still are) used to secure the doors to Modular Building number 1, housing the Call Center, and Modular Building number 2, housing the Inquiry Program’s Fulfillment Section. (T. 135, 136)
67. During the period relevant to this case, Lori Murrell, who supervised the telephone operators in the Call Center, and Jade Feliciano, who supervised the inmates working in the Fulfillment Center, also were permitted, due to the nature of their work inside the prison, to check out an official, authorized prison gate lock key each day when they reported to work at the prison, subject to the same requirement that they turn it in each day to prison security personnel as they left the prison for the day – and subject to the availability of such a key on any given work day. (T. 30, 156-58)
68. Under the prison’s key control policy that existed during the period relevant to this case, the ideal practice for those who, like Petitioner, were assigned a gate lock key each day when they reported to work was for them to check their gate lock key back in at the gatehouse whenever they left the prison; however, for practical reasons, the prison’s security officials did not at that time require people temporarily possessing such checked-out gate lock keys, like Petitioner, to check them back in at the gatehouse if they were leaving the fenced-in, secured area of the prison to go temporarily to the Administration Building, if they were leaving the prison grounds temporarily during the work day to eat lunch off-site or if they were temporarily leaving the prison for some other reason, provided that they returned to the prison by the end of the work day and turned their gate lock key back in to the prison’s security personnel. (T. 30-31, 37, 157-58)
69. One of the most important security principles under the prison’s key control policy as it existed during the period relevant to this case was the requirement that prison management keep track at all times of all keys that unlock any of the secured areas inside the prison’s 35-acre campus and that they know at all times the number and whereabouts of all such keys. (T. 34)
70. The reason that this was so important from a security standpoint during Petitioner’s tenure at the prison was that, if one of the prison’s keys that unlocks the secured compartments inside the prison was missing and unaccounted for, and if that key fell into the hands of an inmate who wished to attempt an escape, the missing key could facilitate such an escape. (T. 34)
71. It was therefore vital that the prison’s management know about any such missing key incident immediately after it occurred, so as to be able to deal with it right away and prevent such an escape or other prison emergency. (T. 34)
72. Accordingly, during the period relevant to this case, the prison’s key control policy required the prison’s management and, in particular, its key control officer, to know at all times how many authorized prison keys were in existence, who possessed them at any given moment, and where they were. (T. 34, 154)
73. These key control policies are so important to basic prison security that, if the prison’s management learns that an authorized prison key is missing and cannot be located or accounted for, the prison’s management must replace every lock in the prison right away, which is extremely expensive. (T. 35)
The Advantages to a Prison Employee of Having a Gate
Lock Key Permanently Assigned to Him or Her
74. The primary advantage to a prison employee, such as Petitioner, of having a gate lock key permanently assigned to him or her is that it assures the employee more flexibility, freedom, and independence in his or her movements inside the prison. A prison employee permanently possessing such a key can come and go with a minimum of interference from or scrutiny by prison guards and other security personnel at the prison. (T. 89)
75. If a prison employee does not have a gate lock key permanently assigned to him or her and if there are no gate lock keys available at the gatehouse for the prison employee to check out temporarily on a given day, the prison employee cannot move around from one place to another within the prison’s secured area without finding a prison guard and asking the guard to escort the prison employee from place to place within the prison and unlock the gates inside the prison for the prison employee. (T. 89-90)
76. Thus, each time the prison employee wishes to move from one gated, secured area inside the prison to another during the work day, he or she would have to seek out and find a prison guard and then wait for the guard to accompany him or her and unlock the gate. (T. 89-90)
77. Another advantage to having a gate lock key permanently assigned is that the prison employee would not have to take the time at the end of each work day to check his or her temporarily assigned gate lock key back in to the prison’s personnel at the gatehouse.
The Gate Lock Key
78. The official Women’s Prison gate lock key is approximately the same size as a typical automobile ignition key. (T. 158)
79. This key is issued by the prison on a U-ring key holder with a clasp at the top of the U-ring. (T. 159)
80. In addition to the gate lock key, the U-ring key holder holds a metal medallion, onto which is engraved the number of the key. (T. 160)
81. This medallion also shows the type of key(s) that is attached to that particular U-ring key holder and the total number of keys that are part of that particular U-ring key holder. (T. 160)
82. The clasp on the U-ring key holder cannot be removed from the U-ring without destroying it and an official prison gate lock key and its medallion cannot be removed from their official prison U-ring key holder without removing the official clasp. (T. 159)
83. The official prison gate lock key can, however, be duplicated without removing it from its official U-ring key holder. (T. 159)
84. The prison’s key officer is the only person who is authorized to make a duplicate of a gate lock key, and he is authorized to do so only when a gate lock key has been broken. (T. 160)
85. The gate lock key unlocks not only the high-security gates located throughout the inside of the prison, but also the padlocks securing the outer doors of Modular Building numbers 1 and 2, where the Inquiry Center is housed at the prison, as well as the padlocks on the Dempsey Dumpsters located just a few feet from the Inquiry Center. (See T. 127-28, 132, 135)
The Testimony of Wally Wazan
86. Wally Wazan is employed by the Respondent and has been since July 2004. (T. 45)
87. Beginning in October 2008, Wally Wazan became the Respondent’s Director of Visitor Services. In this position, he was responsible for the operation of nine North Carolina Welcome Centers and the Inquiry Program at the Women’s Prison. (T. 46-47)
88. When Director Wazan first assumed responsibility for the Inquiry Program, he and his family still were living in Charlotte. During his first few months in this job, he commuted to Raleigh from Charlotte once each week to manage the Inquiry Program. (T. 47)
89. During the first few months of his tenure as the Director of Visitor Services, Director Wazan wanted to become more fully acquainted with the operations of the Inquiry Program at the Women’s Prison. Accordingly, he met with Petitioner to talk about the day-to-day operations of the Inquiry Program at the Women’s Prison. (T. 48-49)
90. In addition, Director Wazan met with officials of the Women’s Prison in order to orient himself regarding the Inquiry Program being operated there and in order to determine whether there was anything that Respondent’s Division of Travel, Film and Sports Development could do to enhance its partnership with the Women’s Prison. (T. 49-50)
91. Specifically, on or about January 8, 2009 (T. 99, 101), Director Wazan met with Deputy Warden Bianca Harris and Assistant Superintendent Helen McNeill. (T. 50)
92. During this meeting, these prison officials told Director Wazan that they believed that Petitioner was a liability to the Inquiry Program. (T. 51-55; Petitioner’s Trial Exhibit 12 at page 3)
93. Specifically, these prison officials stressed to Director Wazan the importance of adherence to the prison’s rules and regulations. (T. 51)
94. In addition, they informed Director Wazan that:
a) Petitioner did not follow prison procedures (T. 51-55; Petitioner’s Trial Exhibit 12 at page 3);
b) Petitioner did not follow the chain of command at the prison or, when she did so and was not satisfied with the outcome, she would go from one prison official to the other in an attempt to get the answer that she wanted and, in the end, would do what she wanted to do no matter what she was told by prison officials (T. 51-55; Petitioner’s Trial Exhibit 12 at page 3);
c) Petitioner favored some inmates over others and did not ensure equality in the treatment of prisoners (T. 51-55; Petitioner’s Trial Exhibit 12 at page 3);
d) Petitioner did not respect the authority of prison officials, which created conflicts (T. 51-55; Petitioner’s Trial Exhibit 12 at page 4); and
e) Petitioner was not adequately supervising Jade Feliciano, who they said was often not at work at all. (T. 51-55; Petitioner’s Trial Exhibit 12 at page 4)
95. These prison officials were so concerned about what they saw as Petitioner’s failure to follow prison rules, regulations, and procedures, as well as her failure to properly supervise the Inquiry Program, that they told Director Wazan that “[i]t is imperative to [prison] staff … to let Esther Dunn go or to move [her] completely from the facility.” (T. 51-55; Petitioner’s Trial Exhibit 12 at page 3)
96. Despite these complaints from the prison’s highest officials and despite the fact that Director Wazan already had become aware of at least one serious and very costly act of professional negligence by Petitioner in her management of the Inquiry Program,[5] Director Wazan decided not to dismiss Petitioner (“I had no intention to do so at that time”). (T. 55. See Petitioner’s Trial Exhibit 12 at pages 2-3)
97. Instead of dismissing Petitioner, Director Wazan met with and spoke to her about the prison officials’ concerns, which Director Wazan specifically identified for Petitioner. (T. 55-56; Petitioner’s Trial Exhibit 12 at pages 4-5)
98. He also asked Petitioner for her own feedback on the concerns expressed to him by the prison’s officials. (T. 55-57; Petitioner’s Trial Exhibit 12 at pages 4-5)
99. In this meeting, Director Wazan told Petitioner that he needed her help in addressing the problems that the Inquiry Program was experiencing and in addressing the concerns expressed by the prison’s officials, that the concerns expressed by the prison’s officials were “extremely important” and that it was vital that Petitioner follow the prison’s rules, regulations and procedures. (T. 55-58; Petitioner’s Trial Exhibit 12)
100. In this regard, Director Wazan specifically emphasized to Petitioner that:
[W]e are working from their house’s backyard and we have to follow the rules regardless!
(T. 55-58; Petitioner’s Trial Exhibit 12 at page 5)
101. Instead of dismissing Petitioner, Director Wazan established an “action plan” to address the prison officials’ concerns and to promote a better partnership with the prison and its officials. (T. 57-58; Petitioner’s Trial Exhibit 12 at page 5)
102. In doing so, he gave Petitioner a second chance to gain the confidence and trust of the prison’s officials. (T. 57-58; Petitioner’s Trial Exhibit 12 at page 5)
103. Approximately one month after Director Wazan met with Petitioner in response to the prison officials’ concerns about Petitioner’s failure to follow prison rules, regulations, and procedures he gave her a written warning for unsatisfactory job performance, dated February 11, 2009. (T. 59-60; Respondent’s Trial Exhibit 17)
104. Among other things, this written warning for unsatisfactory job performance stated:
After reviewing your timesheets in Beacon and comparing them to the ‘Gate Log – List of Movements’ provided by the North Carolina Correctional Institute for Women, I have noticed the following:
Between November 1, 2008 and January 28, 2009, your actual average working hours was [sic] 5.5 hours per day. However, you recorded 8 hours per day in Beacon during that period. Basically, you worked on-site an average of 27.50 hours per week (110 hours monthly) and recorded 40 hours weekly, getting paid for 160 hours monthly. Furthermore, you recorded 8 hours worked on 18 separate days during this period when there is no record of you entering the prison facility at all, which is a total of 144 hours.
Additionally, you called in sick on Sunday[,] February 1, Monday, February 2, and Tuesday, February 3, according to Lori Murrell when asked about your whereabouts. However, you did not use sick leave in Beacon nor did you report your absence to me, your supervisor[,] as required.
T. 59-60; Respondent’s Trial Exhibit 17 at page 1)
105. This written warning informed Petitioner that she was continuing to not follow prison procedures:
It appears that some of the problems with the prison administration—not following procedures…—result from your absence from the Call Center.
(T. 60; Respondent’s Trial Exhibit 17 at page 1)
106. Again, however, Director Wazan decided not to dismiss Petitioner as a result of this incident. Instead, he decided to give her another “second” chance:
I told HR and my supervisors that Ms. Dunn and I is [sic] going to work things out.
* * * * *
We have met and we’re going to try to work things out, especially with Correction[s], and I’d like Ms. Dunn to have another chance.
(T. 62)
107. In his February 11, 2009 written warning to Petitioner, Director Wazan told her to start recording her time accurately in the BEACON system. (T. 60-61; Respondent’s Trial Exhibit 17 at page 2)
108. He also told her in this written warning that she must immediately begin strictly adhering to prison procedures:
You are to begin following procedures established by the prison administration without question at once. Further instances of this nature will result in disciplinary action up to and including dismissal.”[6]
(T. 60-61; Respondent’s Trial Exhibit 17 at page 2) (Emphasis supplied)
109. On the very next day, February 12, 2009, Director Wazan received a telephone call in his office at the North Carolina Department of Commerce from Helen McNeill, the Assistant Superintendent of the Women’s Prison, in which Ms. McNeill asked Director Wazan to come to the Women’s Prison right away, adding that “a key has been duplicated by Ms. Dunn.” (T. 62)
110. Director Wazan went directly to the Women’s Prison, first stopping by its Administration Building and meeting with Assistant Superintendent McNeill and Captain Leonard Hatley. (T. 63)
111. When Director Wazan arrived at the prison, Assistant Superintendent McNeill told him that Lori Murrell had come to her and had informed her that Petitioner had stated to Ms. Murrell that Petitioner had duplicated a key to the gate lock of the Women’s Prison. (T. 64)
112. Director Wazan, Assistant Superintendent McNeill, and Captain Hatley then walked from the prison’s Administration Building through the prison’s internal (locked) gates to the Call Center building in the prison (Modular Building number 1), where Petitioner then was meeting with Lori Murrell and Jade Feliciano. (T. 63)
113. Director Wazan, Assistant Superintendent McNeill, and Captain Hatley asked Petitioner to meet with them alone in an empty classroom inside the Call Center building (Modular Building number 1), so that they could ask Petitioner questions about Ms. Murrell’s report to Assistant Superintendent McNeill. (T. 63-64)
114. In Director Wazan’s presence and in the presence of Captain Hatley, Assistant Superintendent McNeill stated to Petitioner that “It has been brought to my attention that you have duplicated a key to the gate lock,” adding that Lori Murrell had informed her of this matter. (T. 64)
115. Director Wazan testified that Petitioner responded to this statement by acknowledging that she had, in fact, duplicated a key, but that she was not aware that it was a key to the gate lock. (T. 65)
116. According to Director Wazan, Petitioner responded to Assistant Superintendent McNeill by stating that the key that she had duplicated was a key to a file cabinet that was located in her office in the Call Center building (in Modular Building number 1). (T. 65)
117. In Director Wazan’s presence, Assistant Superintendent McNeill challenged this statement by Petitioner, noting that there was no original (prison) key to the file cabinet located in Petitioner’s office. (T. 65)
118. At this point, Director Wazan, Assistant Superintendent McNeill, and Captain Hatley called Lori Murrell into the classroom in order to include her in the investigation. (T. 67)
119. Director Wazan testified that, given Lori Murrell’s statement to Assistant Superintendent McNeill that Petitioner had stated to her that she (the Petitioner) had duplicated and given to Ms. Murrell an official prison gate lock key, and given that both Lori Murrell and Petitioner were employees of the North Carolina Department of Commerce, as was Director Wazan, he decided to question Lori Murrell directly in front of Petitioner, Assistant Superintendent McNeill, and Captain Hatley. (T. 68)
120. Director Wazan testified that he asked Lori Murrell “How sure are you that Ms. Dunn duplicated the key to the gate lock?” (T. 68), and that Ms. Murrell responded to Director Wazan by stating “One hundred and ten percent, and I can take a polygraph to support that.” (T. 68)
121. When Director Wazan, Assistant Superintendent McNeill, and Captain Hatley asked Petitioner for her response to this statement by Lori Murrell (in the presence of Ms. Murrell), Petitioner said “I can’t argue with one hundred and ten percent.” (T. 68)
122. Director Wazan testified that Captain Hatley then led the group (composed of Assistant Superintendent McNeill, Director Wazan, Captain Hatley, Lori Murrell, and Petitioner) to Petitioner’s office located inside the Call Center (Modular Building number 1), where Captain Hatley conducted a search of Petitioner’s office and desk. (T. 69)
123. When the group walked into Petitioner’s office in the Call Center, Director Wazan saw a key chain and keys lying on Petitioner’s desk. (T. 70)
124. In Director Wazan’s presence, Captain Hatley picked up the key chain from Petitioner’s desk and compared its keys with the official, authorized gate lock key that was on Captain Hatley’s own key chain. (T. 70)
125. By this visual inspection, Captain Hatley demonstrated to Director Wazan and the other members of this group that one of the keys affixed to the key chain that he had found lying on Petitioner’s desk was identical to his own authorized prison gate lock key. (T. 71)
126. Director Wazan testified that, at this point, Captain Hatley took over the investigation, because it had by this point become a prison security matter, and, in the presence of Petitioner, Assistant Superintendent McNeill, Director Wazan, and Lori Murrell, Captain Hatley inserted the keys affixed to the key chain that he had found lying on Petitioner’s desk into the file cabinet lock to see if any of them fit that lock. (T. 71)
127. With Director Wazan and the others observing him, Captain Hatley demonstrated that the keys that he had found lying on Petitioner’s desk did not fit the file cabinet lock (DIRECTOR WAZAN: “[I]t did not even go inside the lock of the file cabinet.”) (T. 71)
128. When Petitioner saw that the keys did not fit the file cabinet lock, she said “I don’t know. I thought I made a key for the file cabinet.” (T. 71-72)
129. When Captain Hatley had demonstrated to Director Wazan and the others, including Petitioner, that the keys that he had found lying on Petitioner’s desk did not fit the lock to the file cabinet in Petitioner’s office, he then led the group (which still included Director Wazan, Assistant Superintendent McNeill, Captain Hatley, Lori Murrell, and Petitioner) outside of the Call Center (Modular Building number 1) to the nearest padlocked gates inside the secured perimeter fence of the prison. (T. 72-73)
130. After Captain Hatley had made sure that Director Wazan and the other members of the group were still together and that Petitioner was present and was witnessing what he did, Captain Hatley tried the keys that he had found lying on Petitioner’s desk on the gate’s padlock. (T. 73)
131. In the presence of Director Wazan and the others, Captain Hatley inserted one of the keys into the gate lock. The key fit and opened the lock. (T. 73)
132. Director Wazan testified that, when Captain Hatley demonstrated that this key that he had found lying on Petitioner’s desk fit and unlocked the gate nearest the Call Center (Modular Building number 1), Petitioner had no explanation as to how this key, which had been found just moments before on her office desk, fit and unlocked the prison gate. The Petitioner offered no defense to Ms. Murrell’s charge that this key was an unauthorized duplicate gate lock key and that Petitioner was the person who had had this unauthorized duplicate key made. (T. 74)
133. At this point, Director Wazan and the other members of the group returned to the classroom inside the Call Center (Modular Building number 1), where Captain Hatley directed Petitioner to leave the premises of the Women’s Prison immediately, since she had violated the prison’s security policies by duplicating a key to a high-security prison gate without authorization. (T. 74)
134. Director Wazan testified that, during his, Assistant Superintendent McNeill’s, and Captain Hatley’s investigation into the charges made by Lori Murrell against Petitioner, as described above, Petitioner acknowledged that she had duplicated other prison keys, including some keys to the outer, locked doors of Modular Building numbers 1 and 2, where the Inquiry Program’s Call Center and Fulfillment Center are located. (T. 74-75)
135. Director Wazan testified that Petitioner said “I wasn’t aware that there is a policy on not making keys.” (T. 75)
136. On February 12, 2009, Director Wazan gave Petitioner a memorandum notifying her that, based upon the allegations that had been made against her by, among other persons, Assistant Superintendent McNeill, concerning Petitioner’s unauthorized duplication of a prison gate lock key, Respondent was placing her on investigatory leave with pay, pending the outcome of its investigation of these allegations. (Respondent’s Trial Exhibit 10; T. 76)
137. On February 16, 2009, Director Wazan gave Petitioner a memorandum notifying her that based upon the allegations that had been made against her by, among other persons, Assistant Superintendent McNeill, concerning Petitioner’s unauthorized duplication of a prison gate lock key, and based upon Respondent’s investigation up to that point concerning those allegations, Respondent had scheduled a pre-disciplinary conference with Petitioner. (Respondent’s Trial Exhibits 7 and 8; T. 78-79)
138. In this Notice of Pre-Disciplinary Conference, Respondent notified Petitioner that Respondent was considering taking severe disciplinary action in response to Petitioner’s alleged conduct, up to and including dismissal from her employment. (Respondent’s Trial Exhibits 7 and 8; T. 78-79)
139. In accordance with this Notice of Pre-Disciplinary Conference, a Pre-Disciplinary Conference was held in the offices of the North Carolina Department of Commerce on February 24, 2009. In attendance at this conference were Director Wazan, Toni Stuckey, a Human Relations employee of Respondent, and Petitioner. (T. 79-82. See also Respondent’s Trial Exhibit 6, “February 27, 2009 Memorandum from Director Wazan to Petitioner entitled “Dismissal Due to Unacceptable Personal Conduct”)
140. During this Pre-Disciplinary Conference, Director Wazan and Ms. Stuckey informed Petitioner of the reasons why Respondent was considering taking disciplinary action against Petitioner. (T. 81-82; See also Respondent’s Trial Exhibit 6)
141. They also permitted Petitioner to review a copy of the documents obtained and/or generated by Respondent during its investigation of the charges made against Petitioner of unauthorized duplication of a gate lock key and they gave Petitioner a full opportunity to respond to and give her side of the story with respect to the charges that had been made against her. (T. 82; See also Respondent’s Trial Exhibit 6)
142. Petitioner did not respond to the matters stated by Director Wazan and Ms. Stuckey during this Pre-Disciplinary Conference relating to Respondent’s investigation of the unauthorized duplication of keys episode. (T. 80; Respondent’s Trial Exhibit 6 at 1)
143. Instead, Petitioner stated that, during her tenure with the Inquiry Center, she had made duplicate keys to the front door locks to Modular Building numbers 1 and 2 and that she had given them to Jade Feliciano and Lori Murrell; that her former supervisor had given her permission to duplicate these keys and give them to Mr. Feliciano and Ms. Murrell; and that no one had ever told her during her tenure at the Inquiry Center that it was a violation of prison policy, rules, or procedures to make unauthorized duplicate keys to the prison’s internal, high-security gates. (T. 80-82; Respondent’s Trial Exhibit 6)
144. Petitioner also stated at her Pre-Disciplinary Conference that she was not aware of where the gate lock key laying on her desk that was found by Captain Hatley had come from and that she thought that this was a key to the file cabinet in her office. (Respondent’s Trial Exhibit 6)
145. Finally, Petitioner stated at her Pre-Disciplinary Conference that she had been “set up” by Lori Murrell, “who has her own agenda,” and implied that the prison’s officials were participating in Lori Murrell’s alleged “set up,” stating that they “would rather work with Ms. Murrell.” (Respondent’s Trial Exhibit 6)
146. Director Wazan and Ms. Stuckey listened to Petitioner’s statements made during the Pre-Disciplinary Conference, considered these statements and all of the evidence relating to this incident and took all of these matters into account before making a decision about what action, if any, to take regarding her and the charges that had been leveled against her. (T. 82)
147. Three days after the conclusion of this Pre-Disciplinary Conference, Director Wazan gave Petitioner a memorandum entitled “Dismissal Due to Unacceptable Personal Conduct.” (Respondent’s Trial Exhibit 6)
148. In this memorandum, Director Wazan duly notified Petitioner that she had been dismissed from her employment with Respondent. (Respondent’s Exhibit 6)
149. Respondent’s stated basis for dismissing Petitioner was unacceptable personal conduct, to wit: making a duplicate key to the gate locks located inside the Women’s Prison. (Respondent’s Exhibit 6)
150. In this memorandum, Director Wazan also duly notified Petitioner of her grievance and other legal rights arising out of her dismissal. (Respondent’s Trial Exhibit 6)
151. On April 2, 2009, Petitioner filed a document with Respondent entitled “North Carolina Department of Commerce EMPOYEE [sic] GRIEVANCE FILING FORM, Step 2 Appeal.” (Respondent’s Trial Exhibit 3)
152. In this document, Petitioner again denied duplicating the gate lock key and again claimed that no one had ever told her that it was against the rules of the prison to duplicate a prison gate lock key.
153. More particularly, Petitioner’s grievance document stated that:
I am grieving my dismissal from employment[,] as there was not just cause to dismiss me from my Career [sic] State employment with the Department of Commerce. Not only did I not commit the conduct alleged—specifically[,] the duplicating of keys to gate locks—but also I would submit that such conduct as alleged does not constitute unacceptable personal conduct or unsatisfactory job performance. While I was not informed of [any] specific policy related to the duplication of keys during the course of my employment, I did not at any time duplicate a gate key.
(Respondent’s Trial Exhibit 3, ¶9; T. 87-88)
154. A Department of Commerce Grievance Committee thereafter reviewed and considered Petitioner’s Step 2 Grievance and voted to uphold Director Wazan’s and Ms. Stuckey’s dismissal decision. This Committee also unanimously voted to recommend to the Secretary of the North Carolina Department of Commerce that he uphold Director Wazan’s and Ms. Stuckey’s decision to dismiss Petitioner from her employment with Respondent. (See Respondent’s Trial Exhibit 2)
155. On May 5, 2009, the Honorable J. Keith Crisco, Secretary of the North Carolina Department of Commerce, sent a memorandum to Petitioner entitled “Step 2 Grievance,” in which he duly notified Petitioner of his decision to accept the unanimous recommendation of the Department of Commerce’s Grievance Committee that he uphold Director Wazan’s and Ms. Stuckey’s decision to dismiss Petitioner. (Respondent’s Trial Exhibit 2)
156. In this memorandum, the Secretary of Commerce also duly notified Petitioner of the Department’s Grievance Policy and her appeal rights. (Respondent’s Trial Exhibit 2)
The Testimony of Assistant Superintendent Doris Sayles
157. By reason of the Court’s sequestration Order, Ms. Sayles remained outside the courtroom during the entirety of Director Wazan’s and all of the other witnesses’ testimony in this case and heard no part of any other witness’ testimony.
158. During the period relevant to this contested case proceeding, Doris Sayles was the Assistant Superintendent for Corrections, Custody, and Operations for the Women’s Prison. (T. 116-17)
159. Assistant Superintendent Sayles has been employed by the Women’s Prison for almost 37 years. (T. 116)
160. Assistant Superintendent Sayles is in charge of the operations of the prison, including the prison’s daily functions, as well as the supervision of all inmates incarcerated at the prison. (T. 117)
161. Assistant Superintendent Sayles is responsible for supervising approximately three hundred and thirty-three of the prison’s officers and employees. (T. 117)
162. At some point prior to February 12, 2009 and “after the Petitioner had been [working at the prison] for a while,” Petitioner asked Assistant Superintendent Sayles if she (the Petitioner) could be permanently assigned a gate lock key that Petitioner could keep, so that she would not have to check a gate lock key out and in every day. (T. 117-18; 121)
163. Assistant Superintendent Sayles told Petitioner that she could not have such a permanently assigned gate lock key. (T. 118)
164. Assistant Superintendent Sayles explained that, because the prison must maintain accountability of all of its gate lock keys, such keys are assigned permanently only to certified prison staff members. (T. 118)
165. Petitioner was not a certified prison staff member. (T. 118)
The Testimony of Captain Leonard Hatley
166. By reason of the Court’s sequestration Order, Captain Leonard Hatley remained outside the courtroom during the entirety of Director Wazan’s and all of the other witnesses’ testimony and heard no part of any other witness’ testimony.
167. At the time of the events in question in this contested case proceeding, Captain Hatley was the Correctional Captain at the Women’s Prison. (T. 126)
168. Captain Hatley is a 16-year veteran of correctional and security work for the prisons of North Carolina and has worked at the Women’s Prison since 1996. (T. 125)
169. Captain Hatley testified that:
a. On February 12, 2009, Assistant Superintendent Helen McNeill telephoned him and asked him to come to her office at the prison. (T. 127)
b. When Captain Hatley arrived at Assistant Superintendent McNeill’s office, she told him about and showed him a gate lock key that Lori Murrell had given to Assistant Superintendent McNeill, and she told Captain Hatley that Lori Murrell had said that Petitioner had given this key to Ms. Murrell. (T. 127)
c. At this point, Captain Hatley, Assistant Superintendent McNeill, and Director Wazan took this key and walked towards the prison’s Master Control and Control Center, where Captain Hatley’s office is located. (T. 127)
d. As they walked towards the Control Center, they came to an internal prison gate. In the presence of Assistant Superintendent McNeill and Director Wazan, Captain Hatley used the key that Lori Murrell had given to Assistant Superintendent McNeill to unlock the padlock on this high-security prison gate. (T. 127)
e. This key opened the padlock on this high-security gate. (T. 127)
f. Captain Hatley, Assistant Superintendent McNeill, and Director Wazan then walked over to the Inquiry Program’s Modular Building number 1 (which houses the Call Center), went inside and saw Petitioner.
g. Captain Hatley, Assistant Superintendent McNeill, and Director Wazan asked Petitioner to join them in a classroom located next to Petitioner’s office in Modular Building number 1 to discuss the key duplication issue outside of the presence of the inmates working in the Call Center. (T. 128)
h. Captain Hatley asked Petitioner if she had duplicated any prison gate lock keys. Petitioner said that she had only duplicated a prison key to a file cabinet located in her office in Modular Building number 1. (T. 128-29)
i. Captain Hatley then asked Petitioner to show him her keys. Petitioner said that her keys were on her desk in her office. (T. 129)
j. Captain Hatley, Assistant Superintendent McNeill, Director Wazan, and Petitioner then left the classroom and went next door into Petitioner’s office in Modular Building number 1, where they saw a set of keys on a key ring on Petitioner’s desk. (129)
k. These keys were all on Petitioner’s personal key ring. (T. 129)
l. Captain Hatley compared the key that Lori Murrell had given to Assistant Superintendent McNeill (the key that Lori Murrell said the Petitioner had given to her) with the keys on Petitioner’s personal key ring and visually confirmed that this key was identical to one of the keys on Petitioner’s personal key ring. (T. 129)
m. The official gate lock key issued by the Women’s Prison to prison employees is permanently affixed to an official prison key ring. (T. 129-130)
n. Because of the American Correctional Association’s accreditation of the Women’s Prison and the ACA’s security rules, the prison’s gate lock keys must remain affixed to this official prison key ring at all times. (T. 129-130)
o. There is a fixture attached to this official prison key ring that makes it impossible to remove the gate lock key from the prison key ring without destroying the key ring. (T. 129-130)
p. The official prison key ring is a U-shaped ring with a clasp at the top. (T. 130)
q. That clasp is affixed to the official prison key ring by means of a special tool that the prison’s armor and key control officer possesses. (T. 130)
r. The key ring that Captain Hatley, Assistant Superintendent McNeill and Director Wazan (in the presence of Petitioner) found on Petitioner’s desk which contained Petitioner’s personal keys was an ordinary, round, circular-shaped key ring. (T. 130)
s. This key ring was not an official Women’s Prison key ring. (T. 130)
t. Once Captain Hatley had confirmed visually that the key that Lori Murrell had given to Assistant Superintendent McNeill was identical to one of the keys on Petitioner’s personal key ring, he again asked Petitioner if she was sure that she had not duplicated any prison gate lock keys. (T. 131)
u. Petitioner again stated that she had only duplicated a key to the file cabinet located in her office in Modular Building number 1. (T. 131)
v. Captain Hatley asked Petitioner to produce for his inspection the original file cabinet key that she had used to make a duplicate of the file cabinet key. (T. 129)
w. Petitioner stated that she did not have the original of this key and that she must have left it at home. (T. 129)
x. Captain Hatley then asked Petitioner how she could have made a duplicate that day of the original file cabinet key, if the original file cabinet key was not in her possession, and Petitioner was unable to provide him with a clear answer to this question. (T. 143; Respondent’s Trial Exhibit 9)
y. In the presence of Assistant Superintendent McNeill, Director Wazan, and Petitioner, Captain Hatley attempted at this point to unlock the file cabinet with the keys that he had found on Petitioner’s personal key ring, but none of the keys on Petitioner’s key ring would open up the file cabinet lock. (T. 132)
z. Using the keys on Petitioner’s personal key ring, Captain Hatley next tried to open the lock on the scissor’s box in Petitioner’s office,[7] but none of Petitioner’s keys fit that lock either. (T. 132)
aa. At this point, Captain Hatley led Assistant Superintendent McNeill, Director Wazan, and Petitioner outside of Modular Building number 1, where he tried the keys that were on Petitioner’s personal key ring on the padlock that secured the outer door of Modular Building number 1. (T. 132)
ab. One of the keys on Petitioner’s personal key ring fit and opened this padlock. (T. 132)
ac. This same key opened the lock on the internal, high-security gate inside the prison. (T. 132)
ad. Captain Hatley, Assistant Superintendent McNeill, Director Wazan, and Petitioner then returned to the classroom inside Modular Building number 1, where Captain Hatley permitted Petitioner to offer any points of clarification or explanation that she wanted to offer concerning the gate lock key that he had found in her possession on her personal key ring. (T. 133)
ae. Petitioner offered no response, explanation, or clarification. (T. 133)
af. During the course of his interview of Petitioner, Captain Hatley concluded that he should begin a formal fact-finding inquiry and investigation into this duplicated key incident and that he should advise the people he was questioning of their legal and constitutional rights. (T. 136-37)
ag. In the formal statement that Captain Hatley took from Petitioner concerning this duplicated key incident, Petitioner stated that:
• she did duplicate two prison keys, but that they were keys to the file cabinet in her office, not the gate lock;
• she had never attended or even heard of any prison key control classes;
• she had duplicated prison keys to Modular Building numbers 1 and 2, as well as to her office, and had given them to Lori Murrell and Jade Feliciano when she started her job at the prison; and
• she had told her previous supervisor (Bryan Gupton) that she had duplicated the keys to Modular Building numbers 1 and 2.
(Respondent’s Trial Exhibits 12 and 13)
ah. Lori Murrell was then shown into the classroom where Captain Hatley, Assistant Superintendent McNeill, Director Wazan, and the Petitioner were assembled and Captain Hatley interviewed Lori Murrell about this incident in the presence of Petitioner. (T. 133)
ai. Lori Murrell told Captain Hatley that, on February 11, 2009:
• Petitioner telephoned Ms. Murrell at work and informed her that she was on her way back to the prison;
• when Petitioner returned to her office at the prison, she gave Ms. Murrell a key and stated that this was a gate lock key that she (the Petitioner) had caused to be duplicated;
• Petitioner then stated that she had tried the key on the gate lock and found that it did not work;
• Petitioner then asked Ms. Murrell to try this key on the lock to the scissor’s box in Petitioner’s office;
• Ms. Murrell tried this key on the lock to the scissor’s box and it did not open the scissor’s box lock; and
• Petitioner stated that she was going to take the key back and have it re-duplicated and bring it back the next day, February 12, 2009.
(Respondent’s Trial Exhibit 15)
aj. Lori Murrell also told Captain Hatley that: on February 12, 2009 at approximately 11:55 a.m., Petitioner called her into Petitioner’s office at the Inquiry Center and told her that she had made another duplicate of the gate lock key; that Petitioner then gave her (Ms. Murrell) a duplicate gate lock key and told her at that time that she owed Petitioner $2.00; that she (Murrell) had previously obtained permission to leave the prison so that she could pick up her son on that day; and that, when she left the Inquiry Center to pick up her son after Petitioner had given this gate lock key to her, she (Murrell) stopped by Assistant Superintendent McNeill’s office, gave Ms. McNeill the duplicate gate lock key and told her what had happened. (Respondent’s Trial Exhibit 15; T. 134)
ak. Captain Hatley then interviewed Jade Feliciano, who supervises the Fulfillment Section of the Inquiry Program, which is housed in Modular Building number 2. (T. 134-35)
al. Mr. Feliciano at first denied to Captain Hatley that he had ever received any duplicated prison keys from Petitioner, but he then acknowledged that, in 2007, when he first started work at the prison, Petitioner gave him two duplicated keys, one to the front door of Modular Building number 1 and one to the front door of Modular Building number 2. (T. 134-35. See Respondent’s Trial Exhibit 16)
am. Jade Feliciano added that, at the time Petitioner gave him these duplicated keys, she asked him to pay her $2.00 for each key to reimburse her for the costs of duplicating these keys. (T. 135)
an. During this formal investigation at the prison on February 12, 2009, Captain Hatley obtained signed statements from Petitioner, Lori Murrell, and Jade Feliciano. (Respondent’s Trial Exhibits 12, 13, 14, 15 and 16)
ao. After interviewing Jade Feliciano, Captain Hatley told Petitioner to gather her personal belongings and he escorted her off the prison’s premises, informing her that she should not return to the prison until further notice. (T. 136)
ap. In accordance with prison policy and rules, an incident report must be made by prison officials when there is an incident relating to a security breach at the prison. (T. 148)
aq. Captain Hatley prepared an incident report on February 12, 2009 which briefly summarized what he believed had occurred with respect to the gate lock key duplication episode involving Petitioner. (T. 148; Respondent’s Trial Exhibit 11)
ar. In this incident report, Captain Hatley stated that:
• On February 12, 2009 at approximately 2:35 p.m., Assistant Superintendent McNeill informed him that Petitioner had duplicated a prison gate lock key;
• He used the duplicated gate lock key on the padlock securing one of the gate locks inside the prison and this key opened the gate’s padlock;
• When questioned by him, Petitioner informed him that she had duplicated two prison keys to the file cabinet located in her office in Modular Building number 1, but Petitioner denied duplicating the gate lock key;
• He tried to unlock the file cabinet in the Petitioner’s office with the duplicated key that he had obtained from Assistant Superintendent McNeill, but this key would not open the file cabinet lock;
• During his interview on February 12, 2009 of Lori Murrell, she told him that, on February 11, 2009, Petitioner gave her (Ms. Murrell) a key and stated that Petitioner had made a duplicate of the gate lock key and that Petitioner had tried this key on the gate lock, but that she had found that it did not work;
• Lori Murrell also told him that, at Petitioner’s request, she (Ms. Murrell) tried this duplicated key on the lock to the scissor’s box in Petitioner’s office, but that she (Ms. Murrell) found that this duplicated key would not open the lock;
• Lori Murrell also informed him that Petitioner responded to this by stating that she would go back and get a new duplicate gate lock key made and that she would bring it back to Ms. Murrell the next day (February 12, 2009);
• Lori Murrell also stated to him that, on February 12, 2009 at approximately 11:15 a.m., Petitioner gave her another key that Petitioner said was a duplicated gate lock key and added that Ms. Murrell owed Petitioner $2.00 for the key;
• Lori Murrell also told him that she thereafter gave this duplicated gate lock key to Assistant Superintendent McNeill and told Ms. McNeill that Petitioner had caused this key to be duplicated and that Petitioner had given it to her (Ms. Murrell); and
• Jade Feliciano acknowledged to Captain Hatley that, in September 2007, Petitioner gave him a key to Modular Building numbers 1 and 2.
(Respondent’s Trial Exhibit 11)
as. On February 16, 2009, Captain Hatley prepared and signed a formal “EMPOYEE/WITNESS STATEMENT FORM” relating to the events of February 12, 2009. (T. 143; Respondent’s Trial Exhibit 9)
at. This formal “EMPOYEE/WITNESS STATEMENT FORM” was Captain Hatley’s own individual statement as a witness as to what had happened on February 12, 2009. It was different from his February 12, 2009 incident report concerning this episode. (T. 148; Respondent’s Trial Exhibits 9 and 11)
au. In this formal “EMPOYEE/WITNESS STATEMENT FORM,” Captain Hatley reported that:
On February 12, 2009 at approximately 2:35 p.m., Ms. Helen McNeill…, reported to me that a gate lock key was duplicated and request[ed] to meet at Operations to check the key. Once Ms. McNeill arrived, we checked the key at the inner gate near the end of the operational building. After inserting and turning the key, the lock opened. Ms. McNeill further revealed the key was given to her by Ms. Lori Murrell that works in Travel & Tourism and Ms. Esther Dunn had the key made. At approximately 4:05 p.m., I met with Ms. McNeill and Mr. Wally Wazan…in the Administrative Building. We departed the Administrative Building and walked over to the Travel & Tourism Building[,] entering at approximately 4:15 p.m. to address Ms. Dunn concerning making of the keys. When I asked Ms. Dunn if she had made copies of any prison keys, she replied[,] stating “I had keys to the file cabinet made.” I then informed [her] that these were gate lock keys and not file cabinet keys. I demonstrated this by using the key that Ms. Murrell turned in and the key that Ms. Dunn had on her key ring. Both keys matched and both keys opened the interior lock hanging on the outside door of Modular # 1. At this point[,] Ms. Dunn states [sic] “I thought I was having file cabinet keys made.” When I asked where the file cabinet key was, Ms. Dunn could not produce the key and stated “I must to [sic] have left it at home. I replied “How could you make keys for the file cabinet if the key is at home?” Ms. Dunn became nervous and could not provide a clear answer. I then explained the seriousness of this matter and how security was grossly breached. Ms. Dunn then stated “This is very serious.” Ms. Murrell was interviewed concerning her knowledge of the key in the presence of Ms. Dunn. She repeated her statement that she has [sic] provided to Ms. McNeill and stated she was 110% sure of her statement and what Ms. Dunn said to her. She further said she was willing to take a polygraph test. Ms. Dunn then stated “I can’t argue with 110%.” Ms. Murrell also stated that Ms. Dunn told her she owed $2.00 for the key. Jade Feliciano was interviewed and asked of his knowledge of keys being made for the gate locks. He had no knowledge of gate lock key [sic] being made but revealed in September 2007[,] he was given two (2) door keys… (1) one for Modular # 1 and (1) one for Modular # 2. He further stated that Ms. Dunn told him that he owed $2.00 but [he] never paid for them. All keys were confiscated from Ms. Dunn, Ms. Murrell and Mr. Feliciano, for a total of (13) thirteen keys (2 - gate keys, 6 - Modular door keys, 2 - file cabinet key[s], 2 - supervisor office door keys, 1 - American lock # 527 for closet door lock.) Ms. Dunn was allowed to retrieve her personal belongings and escorted to the gatehouse. She was advise[d] that she could not return until further notice. All keys were given to Ms. McNeill as evidence.
(T. 143; Respondent’s Trial Exhibit 9)
169. Captain Hatley also testified that, when employees come to work at the Women’s Prison, there is a mandatory policy requiring them to attend orientation training, that this orientation training covers the subject of the prison’s key control policies and that this was true in 2007, when the Petitioner came to work at the prison. (T. 149-50)
The Testimony of Lori Ann Murrell
170. By reason of the Court’s sequestration Order, Ms. Murrell remained outside the courtroom during the entirety of the testimony of all of the other witnesses in this case and heard no part of any other witness’ testimony.
171. Lori Murrell testified concerning the events of February 11 and 12, 2009 as follows:
a. On February 11, 2009, Petitioner called Ms. Murrell into her office, gave Ms. Murrell a key and asked her to try it on Petitioner’s file cabinet lock and the lock on the scissor’s box in Petitioner’s office. (T. 168-69)
b. When Lori Murrell tried the key, it did not fit either the file cabinet lock or the scissor’s box lock. (T. 169)
c. In response, Petitioner took this key back from Ms. Murrell and said that she was going to take it back and have some more copies made of this key. (T. 169)
d. When Petitioner returned to the prison the next day, February 12, 2009, Petitioner called Ms. Murrell into her office again, gave her (Murrell) a key, told her that this was a gate lock key and said that she (Murrell) owed the Petitioner $2.00 for the key. (T. 169-70)
e. Lori Murrell previously had made arrangements to leave work that day to pick up her son and, as she was leaving the prison, she went to the office of the prison’s Assistant Superintendent, Helen McNeill. (T. 170)
f. After Petitioner, Assistant Superintendent McNeill was Lori Murrell’s next level up supervisor at the prison. (T. 170)
g. When Lori Murrell met with Assistant Superintendent McNeill, she (Murrell) told Assistant Superintendent McNeill what had happened regarding the duplicated gate lock key and gave Assistant Superintendent McNeill the duplicated gate lock key that Petitioner had just given to her. (T. 170)
h. Later that day (February 12, 2009), Captain Hatley, Director Wazan, Assistant Superintendent McNeill, and Doris Sayles, the prison’s Assistant Superintendent for Corrections, Custody, and Operations, came into the Call Center located in Modular Building number 1 and sat down in a classroom. (T. 170-72)
i. Captain Hatley, Director Wazan, Assistant Superintendent McNeill, and Assistant Superintendent Sayles asked Lori Murrell to come into the classroom to discuss the duplicated key episode in the presence of Petitioner. (T. 170-72)
j. Lori Murrell told Captain Hatley, Director Wazan, Assistant Superintendent McNeill, and Assistant Superintendent Sayles the same thing that she had earlier said to Assistant Superintendent McNeill – that Petitioner had made a duplicate gate lock key and had given it to her. (T. 171-72)
k. Lori Murrell added that Petitioner showed her a receipt for $2.00 for the duplicated key and that Petitioner told Ms. Murrell that she had had the gate lock key duplicated at the Home Depot off of Capital Boulevard, behind Carrabba’s Restaurant. (T. 171, 183-84)
l. Lori Murrell informed these prison officials and Director Wazan (in the presence of Petitioner) that Petitioner had kept this receipt. (T. 171)
m. After Lori Murrell had told these prison officials and Director Wazan that she had obtained the duplicated gate lock key from Petitioner that morning (the morning of February 12, 2009), these prison officials, Director Wazan and Petitioner left the classroom to go outside and try this duplicated gate lock key on the padlock securing the nearest prison gate. (T. 172)
n. Thereafter, Captain Hatley, Director Wazan, Assistant Superintendent McNeill, Assistant Superintendent Sayles, and Petitioner rejoined Lori Murrell in the classroom in Modular Building number 1. (T. 173)
o. At this point, Director Wazan asked Lori Murrell how sure she was that Petitioner had given this duplicated gate lock key to her. (T. 173)
p. Lori Murrell told Director Wazan that she was “a hundred and ten percent sure,” and added that she was willing to take a polygraph test. (T. 173)
q. In response, Petitioner stated “Well, you can’t argue with that.” (T. 173)
r. Lori Murrell wrote out a witness statement for Captain Hatley concerning her report of this episode. (T. 173-74; Respondent’s Trial Exhibit 15)
The Testimony of Assistant Superintendent Helen McNeill
172. By reason of the Court’s sequestration Order, Assistant Superintendent Helen McNeill remained outside the courtroom during the entirety of the testimony of all of the other witnesses in this case and heard no part of any other witness’ testimony.
173. During the period relevant to this contested case proceeding, Helen McNeill was the Assistant Superintendent for Programs of the Women’s Prison. (T. 190)
174. Assistant Superintendent McNeill has been employed by the North Carolina Department of Corrections for over twenty-seven years. (T. 190)
175. Assistant Superintendent McNeill testified that:
a. On August 17, 2007, she sent an email message to Petitioner shortly after Petitioner first came to work at the Women’s Prison. (T. 197-98; Respondent’s Trial Exhibit 20)
b. This email message related to orientation and training classes given by the prison for new employees, such as Petitioner. (T. 197-98; Respondent’s Trial Exhibit 20)
c. On its first page, this August 17, 2007 email message from Assistant Superintendent McNeill to Petitioner stated, in pertinent part, as follows:
I did forward you the information for training on Monday. Did you get it? I have just spoken to Ms. Gandy and she said that the classes are scheduled to run from 8am until 8pm, but classes are generally over around 5pm; but just to b [sic] safe, expect the worse (smile) [sic] She said it would be a good idea to get there early to be sure to get good parking. If you need any further information please advise.
(Respondent’s Trial Exhibit 20; T. 197-98)
d. The classes to which Assistant Superintendent McNeill was referring in this August 17, 2007 email message to Petitioner were orientation and training classes for new employees at the prison. (T. 198)
e. In connection with this August 17, 2007 email message, Assistant Superintendent McNeill sent Petitioner a written schedule of training and orientation classes for the period August 17-August 27, 2007. (T. 198. See Respondent’s Trial Exhibit 20 at page 2)
f. This written schedule of training and orientation classes shows that, on Monday, August 27, 2007, a class was scheduled to be taught for new prison employees entitled “Radio Procedures/Key Control.” (Respondent’s Trial Exhibit 20 at page 2; T. 199-200)
g. This “Radio Procedures/Key Control” course was taught on-site at the Women’s Prison. (T. 200)
h. This entire orientation and training program for new employees (including the course on “Radio Procedures/Key Control”) was mandatory at the Women’s Prison in August 2007 (and remains so now), and attendance at these orientation and training courses was required of all new employees. (T. 199)
i. As far as Assistant Superintendent McNeill is aware, Petitioner attended this mandatory new employee orientation and training course, including the course on “Radio Procedures/Key Control.” (T. 203)
j. Petitioner never communicated to Assistant Superintendent McNeill that she did not attend this mandatory new employee orientation and training course, and she never told Assistant Superintendent McNeill that she had missed this mandatory August 2007 course or needed to sign up for the next offering of this course. (T. 203)
k. The Women’s Prison is a nationally accredited correctional facility, having been accredited by the American Correctional Association (the “ACA”) in 2008. (T. 191)
l. The ACA is an international accreditation organization for correctional facilities and penitentiaries whose officials visit and conduct audits of prisons throughout the United States based on what are regarded in the correctional community as “best practices.”[8] (T. 191)
m. On May 7, 2008, Assistant Superintendent McNeill sent an email message to all managers at the Women’s Prison who worked under her, including Petitioner. (T. 192; Respondent’s Trial Exhibit 19)
n. The “Subject” line of this email message was “ACA Trivia,” which referred to the correctional facility “best practices” information that the ACA had told Assistant Superintendent McNeill and the prison’s other officials they would have to know so that they could correctly answer the ACA auditors’ questions when they visited the Women’s Prison to conduct their accreditation audit. (T. 192; Respondent’s Trial Exhibit 19)
o. Assistant Superintendent McNeill sent this email message to all managers at the prison under her supervision because she knew that the ACA auditors would soon be visiting the Women’s Prison, that these auditors could ask any prison employee (even inmates) questions and that the prison’s accreditation depended on the prison’s personnel knowing the answers to these questions. (T. 192; Respondent’s Trial Exhibit 19)
p. In sending this email message to her supervisees, Assistant Superintendent McNeill wanted to make sure that every prison supervisor and manager working under her (Assistant Superintendent McNeill) knew the correct answers to all possible questions that the ACA auditors might ask during the audit. (T. 192; Respondent’s Trial Exhibit 19)
q. This May 7, 2008 email message, which was addressed directly to Petitioner
(Respondent’s Trial Exhibit 19 at page 1),[9] stated on its first page as follows:
FYI – Please read carefully and make sure that you and your staff working in your area are familiar with the below listed information as it relates to your area.
* * * * *
Please begin to question ALL staff concerning the attached [“ACA WALK-THROUGH DISCUSSION ISSUES”]. This is a daily routine and we must do it multiple times a day in order for our people to remember those things they are just learning or are not sure of. Also, remember, NO ONE can say I don’t know!
(Respondent’s Trial Exhibit 19 at page 1)
r. On the second page of this May 7, 2008 email message, there appears a document entitled “ACA WALK-THROUGH DISCUSSION ISSUES” and sub-entitled “SAFETY AND EMERGENCY PROCEDURES.” This second page stated, in pertinent part, as follows:
ALL SUPERVISORS: The following questions may be asked of employees when touring the institution:
* * * * *
2. What are the procedures for … obtaining emergency keys?
* * * * *
8. What is the … key control plan?
9. How many keys do you have on your key ring and do they all work?
10. Is there a duplicate set of keys for your area and are they checked frequently?
(Respondent’s Trial Exhibit 19 at page 2)
s. On the third page of this May 7, 2008 email message, there appears a document entitled “ACA-ARE YOU READY???” and “ACA WALK-THROUGH DISCUSSION ISSUES, SAFETY AND EMERGENCY PROCEDURES.” This third page stated, in pertinent part, as follows:
8. What is the … key control plan?
9. How many keys do you have on your key ring and do they all work?
10. Is there a duplicate set of keys for your area and are they checked frequently?
(Respondent’s Trial Exhibit 19 at page 3)
t. On February 12, 2009, Lori Murrell came to Assistant Superintendent McNeill’s office at the prison, told her that Petitioner had given her a duplicated gate lock key and gave the duplicated key to Assistant Superintendent McNeill. (T. 213-14, 217-18)
u. Lori Murrell told Assistant Superintendent McNeill that she had to pick up her child off-site and she left the prison temporarily at that point, returning later that day.
v. Lori Murrell gave a written statement of the facts relating to this key duplication incident later that day (February 12, 2009)
w. Assistant Superintendent McNeill telephoned Captain Hatley and told him about this matter. (T. 214)
The Testimony of the Petitioner, Esther K. Dunn
176. Under the terms of the Court’s sequestration Order, Petitioner was permitted to remain in the courtroom during the entirety of the trial of this contested case. As such, she heard the testimony of every other witness in its entirety before she began her own testimony.
177. On direct examination, Petitioner testified that:
a. When she first went to work for the Inquiry Program, her then supervisor, Bryan Gupton, handed her the keys to the file cabinet in her office in the prison, the keys to her office in the prison and the keys to the front doors to Modular Building numbers 1 and 2 in the prison. (T. 250-51)
b. On the very day that she was hired to work for the Inquiry Program at the Women’s Prison and as soon as Bryan Gupton had handed her these prison keys (“When you first received them? Yes.”), Petitioner asked Mr. Gupton if she could duplicate these prison keys and he said “sure, whatever you want to do.” (T. 251)
c. Although she testified at the outset of her direct examination that Jade Feliciano had not yet been hired to work at the Inquiry Program when Bryan Gupton gave her these keys on her first day of work (“Jade was not hired yet.” – T. 250), Petitioner later testified in her direct examination that, as soon as Mr. Gupton told her that she could copy these prison keys (that is, on her first day of work), she immediately copied these keys and gave them to Lori Murrell and Jade Feliciano. (T. 251)
d. She denied that the prison authorities or anyone else ever gave her any sort of training with respect to the prison keys that she was given or any other prison keys. (T. 252)
e. She acknowledged having attended some of the new employee orientation and training about which Assistant Superintendent McNeill testified, but she denied that she had attended the course on key control. (T. 252-53)
f. She denied that anyone ever had given her a written policy relating to prison keys or key control. (T. 254)
g. She denied that Assistant Superintendent Sayles ever told her that she could not have a gate lock key permanently assigned to her and she denied that Assistant Superintendent Sayles ever even talked to her about the subject of prison keys. (T. 254)
h. She denied that Director Wazan ever gave her any verbal instructions about prison keys or her use of prison keys. (T. 255)
i. She denied that she ever had left the Women’s Prison with a gate lock key in her possession, even when she left the prison temporarily to go to the Administrative Building or to go to lunch. (T. 256-57)
j. On February 11, 2009, she made two more copies of the file cabinet keys that had been assigned to her – that is, two copies of these keys in addition to the copies of these file cabinet keys that Petitioner earlier testified (T. 251) she had made on her first day of work. (T. 261)
k. She said that she copied these file cabinet keys at Lowe’s Home Improvement Store on Highways 401 and 70. (T. 261)
l. The Petitioner’s legal counsel asked her “Why did you make these copies [of the file cabinet keys]?” (T. 261)
m. In response, Petitioner offered an explanation that seemed to make no sense and that shed no light on the question why, on February 11 or 12, 2009, Petitioner would have made yet more copies of file cabinet keys that she testified earlier she had already copied and given to both Lori Murrell and Jade Feliciano (in 2007). (T. 251) She said:
Well, from the – what Mr. Wazan had told me that the prison staff didn’t care for me and they wanted me to take a step back, I decided that I needed to start looking for another job, and I was trying to put my ducks in a row. And in the past that file cabinet was in a closet that I only had a lock for, and it had personnel files in it.
The prison’s correctional officer had a key to it, but it looked similar to a gate lock key except for it wasn’t on a gate key ring, and they had ruined it by trying to open up a gate with it. So I was the only one that had a key, so when they did a search, they had to tear down the wall or tear down the door, and so I was trying to eliminate a lock on that door altogether and just have a lock on the file cabinet.
(T. 261-62)
n. After duplicating this file cabinet key, she went back to the prison and gave the duplicate key to Lori Murrell. (T. 262)
o. Both Petitioner and Lori Murrell tried this key on the lock to the file cabinet, but that it did not work and Petitioner said to Lori Murrell that she would have another duplicate key made. (T. 262-63)
p. On that same day (February 11, 2009), Petitioner took the original file cabinet key to Lowe’s and had it “rekeyed.” (T. 263)
q. Although Petitioner previously had testified that she never had been told not to duplicate the gate lock key, that she had had no training regarding key control policies or any rules relating to the duplication of any prison keys, and that she had been told by her former supervisor that it was fine for her to duplicate prison keys [according to Petitioner, Bryan Gupton said “sure, whatever you want to do.” (T. 251)], whether those keys were the file cabinet keys or a gate lock key (T. 251-55), Petitioner testified that she never duplicated a gate lock key and insisted that she only duplicated the file cabinet key, the key to her office, and the keys to the doors of Modular Building numbers 1 and 2. (T. 263)
r. Despite her earlier statements contained in her Petition for a Contested Case Hearing, her Prehearing Statement, her grievance documents filed with the Respondent, her witness statement given to the prison’s officials, and other documents that no one ever had told her that there was anything improper about duplicating a prison gate lock key or that it would constitute misconduct to duplicate a prison gate lock key,[10] Petitioner testified that she does not think that it would have been appropriate for her to duplicate a gate lock key because “Common sense tells you that it’s not appropriate.”
s. Petitioner did not explain why she wrote in the witness statement that she gave to Captain Hatley on February 12, 2009 that she never had heard of a course on key control or why she repeatedly took the position in her grievance papers and her pleadings in this case that it would not have been improper for her to duplicate a prison gate lock key when “common sense tells you that it’s not appropriate” to duplicate such a key.
t. On February 12, 2009, Petitioner gave Lori Murrell a copy of the file cabinet key that she had made that day. (T. 264)
u. She contended that she laid the original of this file cabinet key on her desk, next to her other keys. (T. 264)
v. By “her other keys,” Petitioner testified that she meant her personal keys, including her house and car keys, which were on a large key chain, and another set of keys, which included the building keys, the office key, and a gate key that Petitioner testified she had checked out that day, which she testified she put in her desk drawer. (T. 264-65)
w. On February 12, 2009, Director Wazan and Captain Hatley came to Modular Building number 2, not Modular Building number 1, where she was then meeting with Jade Feliciano, and asked Petitioner to join them in the classroom next to her office in Modular Building number 1. (T. 265-66)
x. Once Petitioner got to the classroom, Assistant Superintendent McNeill asked her whether she had duplicated the gate key and Petitioner said she had not done so. (T. 266)
y. Thereafter, Lori Murrell joined the group in the classroom and Lori Murrell said that she was one hundred and ten percent sure that Petitioner had given her a gate lock key and that Petitioner had told Ms. Murrell that she had duplicated this gate lock key. (T. 267)
z. Petitioner testified that she responded to this statement by saying “That’s untrue.”
aa. Petitioner and Captain Hatley then returned to Petitioner’s office next door to the classroom and, when they entered Petitioner’s office, she noticed that her keys lying on her desk had been tampered with and that a key had been added to one of her key rings. (T. 267-68)
ab. Petitioner testified that she told Captain Hatley that her keys had been tampered with, but that he said nothing whatsoever in response. (T. 267)
178. On cross-examination, Petitioner testified as follows:
a. She received and actually read Assistant Superintendent McNeill’s May 7, 2008 email message to Petitioner and all other prison managers and supervisors concerning “ACA Trivia” and “Audit Questions,” including the attachment to this email message. (T. 274, 277; Respondent’s Trial Exhibit 19)
b. She acknowledged that this email message concerned an accreditation audit that was about to be done at the prison, for which the prison’s officials were trying to get the staff ready. (T. 274-75)
c. She acknowledged that she and everyone else at the prison knew that the ACA auditors were going to visit the prison and that, as they made their walk-through, they could ask questions of any prison employee, including Petitioner. (T. 275)
d. She acknowledged that the entire purpose of Assistant Superintendent McNeill’s May 7, 2008 email message to Petitioner and all other prison managers and supervisors was to help prepare Petitioner and other prison employees to be able to answer the questions that the ACA auditors might ask them during their walk through and audit of the prison – “to make darn sure that you…and everybody else kn[ew]…how to answer…the questions…that are identified specifically in the attachment...” (T. 275-76)
e. She acknowledged that the second and third pages to this May 7, 2008 email message identified the questions and types of questions that the ACA auditors would be asking members of the prison staff as they audited the prison. (T. 275; Respondent’s Trial Exhibit 19 at pages 2 and 3)
f. She acknowledged that, “in essence, [this May 7, 2008 email message was] saying, ‘Look, for Heaven’s sake, be ready to answer these questions if you’re asked.’” (T. 275)
g. She acknowledged that four of the questions identified in the attachment to this May 7, 2008 email message dealt with the subject of prison keys, including the specific question “What is the key control plan” at the prison. (T. 276-77; Respondent’s Trial Exhibit 19 at pages 2 and 3)
h. In response to this email message and its attachments, Petitioner testified that she went to Assistant Superintendent McNeill after receiving this email message and told her that no one ever had trained her at all on key control and that she knew nothing about the subject of key control, such that she was not able to answer the ACA auditors’ questions relating to the subject of prison keys. (T. 277, 292)
i. She testified that, when she told Assistant Superintendent McNeill that she had received no training whatsoever on key control and that she knew nothing about this subject that would enable her to answer the ACA auditors’ questions, Assistant Superintendent McNeill “for whatever reason decided not to orient [or train Petitioner] on key control,” “[e]ven though [Assistant Superintendent McNeill wrote [Petitioner] on May 7, 2008…and made clear to [Petitioner] that [Petitioner was] responsible for knowing about key control.” (T. 292)
j. She testified that, instead of providing her with training on key control, Assistant Superintendent McNeill told her simply to “[a]sk the correctional officer in your area;” to “[a]sk him these questions and get those answers from the correctional officer.” (T. 292)
k. She testified that she did ask the correctional officer in her area, but that this correctional officer did not provide her with any information relating to key control or the answers to ACA audit questions about keys and key control. (T. 293)
l. She testified that this correctional officer said: “That’s more for correctional officers, and we would be holding the keys, not you. You wouldn’t have facility keys.” (T. 293)
m. She testified that she did not go back to Assistant Superintendent McNeill and inform her that this correctional officer allegedly had declined to give her this vitally important audit-related information that Assistant Superintendent McNeill allegedly had sent Petitioner to this officer to obtain. (T. 293)
n. She explained why she did not tell Assistant Superintendent McNeill about this episode by saying that “I assumed that was the answer; that the correctional officer would be in control of the keys.”
o. She offered no explanation as to how this statement made any sense in light of the fact that, by her own admission, she had been given permanent possession of original, authorized prison keys (to say nothing of the fact that she also possessed unauthorized, duplicate prison keys) to Modular Building numbers 1 and 2, her office in Modular Building number 1, and the file cabinet and scissors’ box in her office, or the fact that she was given temporary custody of a gate lock key every time she entered the prison.
p. She testified that Director Wazan, Captain Hatley, Assistant Superintendent Sayles, Lori Murrell, and Assistant Superintendent McNeill all had “lied” to the Court when they testified that: Petitioner duplicated the gate lock key on February 12, 2009; Petitioner gave the duplicated gate lock key to Lori Murrell on February 12, 2009 and told Lori Murrell that she owed the Petitioner $2.00.
q. Petitioner went beyond this allegation, testifying that Director Wazan, Captain Hatley, Assistant Superintendent McNeill, Assistant Superintendent Sayles, and Lori Murrell had all joined together in a “conspiracy” to falsely testify against her so that they could get rid of her. (T. 279, 282)
The Testimony Concerning Who Succeeded to
Petitioner’s Job Following Her Dismissal
179. When Petitioner was dismissed by Respondent, neither Lori Murrell nor Jade Feliciano succeeded to Petitioner’s job and neither of them received any increase in pay. (T. 90)
180. This remained true as of this contested case hearing. (T. 90)
181. Following Respondent’s dismissal of Petitioner, her position was eliminated by the North Carolina Department of Commerce. (T. 112)
182. The duties formerly performed by Petitioner have, since her dismissal, been divided between Lori Murrell and Jade Feliciano. (T. 112)
WITNESS CREDIBILITY
183. By contending that all of Respondent’s witnesses testified falsely and by contending that they had combined in a “conspiracy” to get rid of her, Petitioner made the determination of this case one of credibility.
184. The Court believes that the following must guide its determination of the witness credibility issue in this case:
a. Petitioner has a significant personal stake in the outcome of this case.
b. Winning this case could mean a significant financial award for her, plus an award of attorneys’ fees and a continuing source of employment for her.
c. Thus, Petitioner has a bias and a possible motive to color her testimony in a manner favorable to the outcome she desires.
d. The same cannot be said about the testimony of Respondent’s witnesses.
e. Petitioner claims that Lori Murrell is biased because she wanted Petitioner’s job, a job that Lori Murrell never got, and Petitioner claims that the prison’s officials who testified for Respondent at the trial wanted her out of the prison so badly that they would be willing to offer fabricated testimony in order to achieve their alleged goal.
f. Nevertheless, Petitioner cannot identify what interest Wally Wazan had or now has in seeing Petitioner lose her job at the prison.
g. Director Wazan’s testimony, particularly concerning Petitioner’s tacit admission to Captain Hatley and others that she did, in fact, duplicate the key, is identical to the testimony of Captain Hatley, Assistant Superintendent McNeill, Lori Murrell, and the others, that Petitioner did make this admission during Captain Hatley’s investigation on February 12, 2009.[11]
h. Petitioner’s Exhibit 12 states that, as of mid-January 2009, the prison’s management was unhappy with Petitioner’s repeated failures to comply with prison policies and procedures and that they wanted the Respondent to remove her from her job at the prison, but this Exhibit also shows that Petitioner’s Department of Commerce supervisor, Director Wazan, supported the Petitioner and that he decided not to dismiss her, but instead to give her a second chance to show the prison’s management that she could and would comply with prison rules and procedures.
i. This document shows that Director Wazan simply counseled Petitioner on how to be more effective in her job at the prison.
j. This is not the conduct of a member of a conspiracy to get rid of Petitioner.
k. Even more compellingly, Respondent’s Exhibit 17, Director Wazan’s February 11, 2009 written warning to Petitioner concerning her alleged actions in misreporting her time in the BEACON system, shows that Director Wazan had no secret agenda to get rid of Petitioner.
l. If Director Wazan had wanted to get rid of Petitioner, he could have dismissed her based on his conclusion that she had substantially misreported her time in the BEACON system, but he again gave Petitioner a second chance.
m. Again, this is not the conduct of a person who is a member of a conspiracy to get rid of an employee.
n. Thus, although Petitioner has a significant bias that should cause this Court to view her testimony critically and with caution, the same cannot be said about the collective testimony of Respondent’s employees on the key issue of whether Petitioner acknowledged having duplicated the gate lock key – because Director Wazan confirmed the testimony of Captain Hatley, Assistant Superintendent McNeill, Lori Murrell, and the others on this point and because, for the reasons identified above, Director Wazan cannot seriously be presumed to have a bias against Petitioner.[12]
o. Petitioner’s dismissal of the testimony of the six witnesses who testified against her as being intentional falsehoods depends for its credibility on one’s willingness to believe her assertion that all of these witnesses have knowingly and intentionally joined in what she termed a “conspiracy” to get rid of her and keep her out of her job at the prison.
p. Not only is Petitioner’s conspiracy claim not supported by any actual evidence, it is dubious on its face.
q. Among other things, as noted above, the uncontradicted evidence in this case shows that one of the members of this alleged conspiracy, Director Wazan, repeatedly gave Petitioner second chances to improve her conduct at work.
r. Indeed, the evidence shows that, over and over again, Director Wazan entreated Petitioner to follow prison rules and procedures.
s. Director Wazan could have dismissed Petitioner earlier, especially when he concluded that she had falsified her time entries in the BEACON system, but he merely gave her a written warning.
t. Director Wazan’s action in trying to save Petitioner’s job undercuts Petitioner’s conspiracy theory and her credibility as a witness in this case.
u. Other aspects of Petitioner’s testimony at trial also raise questions about her credibility as a witness.
v. For example, Petitioner claimed that, during the investigation conducted by Captain Hatley on February 12, 2009, her keys, which Captain Hatley had found laying on top of her desk, had been “tampered with.”
w. More particularly, Petitioner testified that when Captain Hatley, she, Director Wazan, Assistant Superintendent McNeill, and others walked into Petitioner’s office in Modular Building number 1 at the prison during Captain Hatley’s investigation into the charge that Petitioner had duplicated the gate lock key, and saw Petitioner’s keys lying on her desk, Petitioner looked at her keys, concluded that they had been “tampered with”, and told Captain Hatley then and there that her keys appeared to have been tampered with.
x. Specifically, she said that she told Captain Hatley that her keys had been “fanned out” on her desk, implying that someone else had picked up her keys from her desk, placed a duplicated gate lock key on Petitioner’s personal key ring and placed Petitioner’s personal key ring back on her desk to be found by Captain Hatley during his investigation.
y. Petitioner offered no evidence to support this contention other than her assertion that Lori Murrell wanted her job and that the prison officials wanted her out.
z. It is significant that Petitioner’s claim of key tampering appears nowhere in the documents created at the time of Captain Hatley’s investigation – or even later.
aa. There is nothing in Captain Hatley’s own detailed statements – either Respondent’s Exhibit 9 (Captain Hatley’s February 16, 2009 witness statement) or Respondent’s Exhibit 11 (Captain Hatley’s February 12, 2009 incident report) – about any statement made by Petitioner during or shortly after the investigation to the effect that her keys had been tampered with in any way.
ab. Indeed, this statement appears nowhere in any other witness’ statements.
ac. Even more significantly, this claim of key tampering appears nowhere in Petitioner’s own signed and dated witness statement, Respondent’s Exhibit 13.
ad. Furthermore, even after Petitioner had had a period of weeks to calm down and collect her thoughts following the events of February 12, 2009 and after she had had plenty of time to carefully re-think what had happened that day, she filled out and filed a written grievance form on April 2, 2009 in which she said nothing at all about anyone tampering with her keys or about having made any such statement to Captain Hatley at any time.
ae. Petitioner then filed her Petition for a Contested Case Hearing on June 3, 2009 and, again, said nothing about this alleged tampering issue.
af. When Petitioner later filed her Prehearing Statement, on July 8, 2009, she still said nothing about this alleged tampering issue.
ag. These facts lead the Court to conclude that Petitioner’s explanation of how the duplicated gate lock key got into her possession is not credible, leaving only the testimony of Director Wazan, Captain Hatley, and Assistant Superintendent McNeill that the duplicated gate lock key was found on Petitioner’s personal key ring on her desk, that Petitioner did, in fact, duplicate the gate lock key and that Petitioner tacitly admitted this fact during questioning by Captain Hatley.
ah. Petitioner’s claim that all of the testimony of Respondent’s witnesses was fabricated because they all had their own reasons for wanting her gone is belied by the fact that Director Wazan was an eye and ear witness to all of these matters, including what Petitioner did and did not say to Captain Hatley.
ai. As discussed above, Director Wazan’s track record shows that he had no agenda against Petitioner and that he was not part of any conspiracy to get rid of her.
aj. By Petitioner’s own repeated admissions, she has a record of duplicating prison keys.
185. In the Court’s view, what is notable here is not that there were minor, non-substantive differences between some of Respondent’s witnesses’ accounts, given that Respondent’s witnesses were sequestered, but that Petitioner’s own testimony was contradicted in the ways identified above, even though she was not sequestered and was able to listen to everything that every other witness had said during the trial before she was required to testify.
186. In this regard, the Court also notes that Petitioner appears to have taken advantage of this fact by adapting her own testimony substantially to account for the testimony of Respondent’s witnesses.
II. CONCLUSIONS OF LAW
1. The OAH has jurisdiction over the persons of the parties and has jurisdiction over the subject matter of this contested case proceeding under Chapters 126 and 150B of the North Carolina General Statutes.
2. The parties have been given proper notice of the hearing of this contested case proceeding.
3. In this case, Respondent had the burden of proof on the issue whether Respondent wrongfully discharged Petitioner without just cause. See N.C. Gen. Stat. §126-35(d) (2010).
4. By applying the rules and guidelines set forth above in its analysis of the issue of the credibility of Petitioner’s testimony, the Court does not find Petitioner’s testimony to be credible.
5. What this leaves is the testimony of Respondent’s witnesses, which the Court finds credible and which the Court concludes is sufficient to prove all of the facts necessary to support a finding and conclusion that Respondent’s dismissal of Petitioner in this case was supported by just cause.
DECISION
Based upon the foregoing findings of fact and conclusions of law, I find that Respondent’s decision to dismiss Petitioner from its employment based upon unacceptable personal conduct is supported by a preponderance of substantial evidence and is AFFIRMED.
ORDER
It hereby is ordered that the North Carolina State Personnel Commission, as the agency making the final decision in this contested case, serve a copy of that final decision on the North Carolina Office of Administrative Hearings, Post Office Drawer 27447, Raleigh, North Carolina 27611-7447, in accordance with N.C. Gen. Stat. §150B-36(b).
NOTICE
The agency making the final decision in this 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 further 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 or their attorneys of record and to the North Carolina Office of Administrative Hearings, Post Office Drawer 27447, Raleigh, North Carolina 27611-7447.
The agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.
THIS DECISION IS MADE AND ENTERED THIS 24th DAY OF AUGUST, 2010.
____________________________________
Beecher R. Gray,
Administrative Law Judge
-----------------------
[1] Citations to the Trial Transcript are hereinafter referred to as “T.,” followed by the page number of the Trial Transcript cited.
[2] Of these Trial Exhibits, only Respondent’s Exhibits 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19 and 20 were admitted into evidence at the trial.
[3] Of these Trial Exhibits, only Petitioner’s Exhibits 1, 2, 3, 4, 5, 6 and 12 were admitted into evidence at the trial.
[4] The Inquiry Program’s warehouse operation is located at 121 Durham Drive in Raleigh, approximately four miles from the prison. (T. 106)
[5] See Petitioner’s Trial Exhibit 12 at page 2 and T. 51-55, stating that Director Wazan learned in or about Christmas of 2008 that the Inquiry Program’s automatic voice-mail answering system had not been functioning at all for the previous six months and that this system could have been repaired and put back into service easily, but that it had been allowed under the Petitioner’s leadership to continue to be totally inoperable until Director Wazan personally intervened and caused it to be put back on-line.
[6] Director Wazan also told the Petitioner on other occasions that she had to follow prison procedures. (T. 61)
[7] Prison rules require that all sharp objects, including scissors, be locked up and secured. For this purpose, there are locked scissors boxes in various offices throughout the prison. (See T. 168-69)
[8] See the official website of the American Correctional Association, standards · Cached page:
The Standards and Accreditation Department of the American Correctional Association (ACA) serves a dual mission of providing services for ACA and the Commission on Accreditation for Corrections (CAC). These services include the development and promulgation of new standards, revision of existing standards, coordination of the accreditation process for all correctional components of the criminal justice system, semi-annual accreditation hearings, technical assistance to correctional agencies, and training for consultants who are involved in the accreditation process.
[9] The Petitioner admitted having received this email message from Assistant Superintendent McNeill. (T. 254)
[10] See, e.g., Respondent’s Trial Exhibit 3, Employee Grievance Filing Form (North Carolina Department of Commerce), Step 2 Appeal, dated April 2, 2009 (“Not only did I not commit the conduct alleged – specifically the duplicating of keys to gate locks – but also I would submit that such conduct as alleged does not constitute unacceptable personal conduct … . While I was not informed of specific policy related to the duplication of keys during … my employment ….”); Petition for a Contested Case Hearing filed by Esther K. Dunn, June 3, 2009 at numbered page 2 [“ 1) Petitioner was not responsible for the conduct for which she was dismissed; 2) Petitioner had not been previously advised as to Respondent’s policies concerning the conduct for which Petitioner was … dismissed …”]. See also Petitioner’s Prehearing Statement at page 2 (“Petitioner did not duplicate gate keys for the gate locks at the correctional facility at which Petitioner worked.”) and page 3 [“ 1) Petitioner was not responsible for the conduct for which she was dismissed; 2) Petitioner had not been previously advised as to Respondent’s policies concerning the conduct for which Petitioner was … dismissed …”].
[11] During her direct examination, Ms. Lori Murrell, a Department of Commerce employee at the Call Center facility at the prison, testified that, during Captain Hatley’s and Assistant Superintendent McNeill’s February 12, 2009 investigation into the key duplication matter, Ms. Murrell was asked, on a scale of 1 to 100, how sure she was of the accuracy of her statement that the Petitioner had duplicated the gate lock key and had given it to Ms. Murrell. Ms. Murrell testified that the Petitioner was present when Ms. Murrell was asked this question and that Ms. Murrell responded to this question (also in front of the Petitioner) by stating that she was “110% sure,” adding that she was willing to take a polygraph test to prove her statement. Ms. Murrell, among others, testified that the Petitioner then responded, in the presence of Captain Hatley, Assistant Superintendent McNeill, Wally Wazan and others, by saying “Well, I can’t argue with 110%.”
[12] It is difficult to anticipate Ms. Dunn’s arguments on summation, but it is conceivable that she may argue that Director Wazan was part of an anti-Dunn conspiracy because he was pressured by the prison’s management; however, this hypothesis is refuted by the evidence discussed above. By February 12, 2009, Director Wazan had already twice demonstrated a consistent desire to help Ms. Dunn to obey the rules and learn to be effective in her job. He had given her two second chances, despite the fact that prison officials had told him as of December 2008 or January 2009 that they wanted Ms. Dunn out of the prison because of her failure to obey prison rules. This is not the conduct of a person who is under the spell of prison management.
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