STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF HARNETT FILE NO.: 10 OSP 8549

______________________________________________________________________________

DENISE MCLEAN,

Petitioner,

v.

NORTH CAROLINA DEPARTMENT OF CORRECTION,

Respondent.

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DECISION

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This contested case was heard before Administrative Law Judge Joe L. Webster on April 13, 2011, at the Old Cumberland County Courthouse, Fayetteville, North Carolina.

APPEARANCES

Petitioner Pro Se: Denise McClean

Post Office Box 358

Lillington, NC 27546

For Respondent: Terence D. Friedman

Assistant Attorney General North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

Phone: (919) 716-6650

Facsimile: (919) 716-6708

E-mail: tfriedman@

N.C. Bar No.: 25088

WITNESSES

For Petitioner: Denise McClean

For Respondent: Willie Beasley

Joseph Hall

Daniel Raing

EXHIBITS

For Petitioner, Petitioner’s Exhibits 1 – 8.

For Respondent, Respondent’s Exhibits 1 (per Court’s order, only Petitioner’s statements at pages 000005 through 000011), 2 – 8.

ISSUE

Whether there was just cause for Petitioner’s termination.

FINDINGS OF FACT

1. The parties acknowledged proper notice of the date, time and place of the hearing.

2. Prior to Respondent’s termination of Petitioner’s employment, Respondent

afforded Petitioner a pre-disciplinary letter and a pre-dismissal conference. Respondent’s Exhibits (“R. Exs.”) 3 – 5, 8; Transcript (“Tr.”) 114, 129.

3. Respondent sent Petitioner a letter terminating her employment (“Termination

Letter”) and afforded Petitioner the opportunity to administratively appeal her termination, which Petitioner did. R. Exs. 5, 6; Tr. 119.

4. Petitioner worked for Respondent as a correctional officer at Harnett Correctional

Institute (“Harnett”) for two years and seven months. Tr. 135)

5. On June 24, 2010, Petitioner had what she herself terms an altercation

(“altercation”) at Harnett with another correctional officer, Karen Jackson. R. Ex. 1 (page 000007); Tr. 172. The altercation consisted of two confrontations (“first confrontation” and “second confrontation”) between Petitioner and Ms. Jackson within a short period of time.

6. The first confrontation occurred after 8 a.m. in the hallway to the G-Dormitory.

Tr. 148. Petitioner entered the hallway and approached Ms. Jackson, who was already there. Tr. 149. The two women were then within one foot of one another. Tr. 151-52. Ms. Jackson had a mirror in her hand and asked Petitioner what the mirror was used for. Tr. 150. Ms. Jackson handed Petitioner the mirror, whereupon Petitioner stated to Ms. Jackson: “You don’t know how to use [the mirror]!” Tr. 150-151.

7. Petitioner claimed at trial that Ms. Jackson then took the mirror and stated to

Petitioner: “Your ass think you know everything.” Tr. 152-53. Petitioner stated that, as Ms. Jackson was doing so, she bumped into Petitioner. Tr. 153. Notably, however, Petitioner nowhere alleged in her contemporaneous written statements about the altercation that Ms. Jackson had taken the mirror back from Petitioner. See R. Ex. 1 (pages 000005 through 000011); see also Tr. 154 (Petitioner admitted she did not assert in her written statements that Ms. Jackson had taken the mirror back from Petitioner).

8. During the rest of the first confrontation, Ms. Jackson bumped Petitioner twice

more over a period of between one minute and three minutes. Tr. 156. Petitioner claims, during this time, the only thing Petitioner did at all was say repeatedly “Ms. Jackson, stop using profanity at me!” Tr. 154-55, 161. Petitioner claimed at trial that she does not recall whether she used an aggressive tone of voice with Ms. Jackson. Tr. 161. Petitioner admitted that she could have walked away from Ms. Jackson at the beginning of the first confrontation but did not do so. Tr. 157, 159.

9. Eventually, Petitioner walked away from Ms. Jackson and into the adjoining

hallway of the I-Dormitory. Tr. 161. Although Petitioner had a radio on her at the time, she did not attempt to report the first confrontation to the acting sergeant on duty. Tr. 161-62. Petitioner claimed at trial that she did not report the first confrontation with Ms. Jackson because Petitioner did not feel threatened by Ms. Jackson and did not have a problem with Ms. Jackson’s behavior. Tr. 162, 164.

10. Willie Beasley is a correctional officer who was working at Harnett at the time of

the altercation . Tr. 7-8. At approximately 8:30 a.m. that morning, Mr. Beasley was cleaning up the hallway to the I-Dormitory when he saw Petitioner enter the hallway. Tr. 10. Mr. Beasley approached Petitioner and asked her to pass on to Ms. Jackson his request that she steer inmates away from his hallway while he was cleaning. Tr. 10-12. Mr. Beasley observed that Petitioner appeared “ill” and angry. Tr. 13, 16-17.

11. After Mr. Beasley approached and spoke to Petitioner, she replied that she was

not going to speak to Ms. Jackson and that Mr. Beasley would have to do so himself. Tr. 11-12, 172. Ms. Jackson then entered the hallway to the I-Dormitory and that she appeared angry to him as well. Tr. 16-17. Ms. Jackson told Mr. Beasley to run his assigned hallway the way he wanted to, and then Petitioner said to Ms. Jackson: “I’m not trying to run or control anything.” Tr. 175.

12. By this point, Petitioner and Ms. Jackson were between six to eight inches apart.

Tr. 176. An argument then “exploded” between the two women. Tr. 17-19. Both women were gesturing toward one another in an angry manner. Tr. 20-21. Both women were using profanity toward one another. Tr. 18, 21, 23-24. Mr. Beasley testified that he tried to tell the two women to return to their respective dorms but that the argument only “escalated” further. Tr. 18. At least five inmates were present in the hallway and were able to observe the second confrontation between Petitioner and Ms. Jackson. Tr. 27-28. The acting sergeant at the time, Camilla Pratt, then came around the corner of the hallway, at which time Mr. Beasley reported the altercation to her. Tr. 29-30, 46. After that, Petitioner and Ms. Jackson separated.

13. Although, in response to the Court’s questions, Mr. Beasley acknowledged that it

was noisy in the hallway and that he sometimes has problems hearing certain sounds, Mr. Beasley never wavered from his testimony that both women were cursing during the second confrontation of the altercation. Tr. 51, 54. Further, when Petitioner attempted to cast doubt on Mr. Beasley’s testimony by cross examining him about whether he had ever observed her curse on the job before the altercation, Mr. Beasley testified he had indeed heard Petitioner curse twice. On one occasion, Mr. Beasley overheard Petitioner curse when she appeared frustrated with prisoners. Tr. 64. On another occasion, Petitioner told Mr. Beasley she had been interviewed by an assistant superintendent at Harnett because Petitioner had told another correctional officer she was going to “kick his ass.” Tr. 64, 74. Petitioner suggested that she could not have cursed during the altercation because, although she used to curse regularly (including during her work for Respondent), she was trying to improve her language at the time of the altercation. Tr. 155-56. As with the first confrontation, Petitioner admits that she could have simply walked away from Ms. Jackson during the second confrontation but Petitioner did not do so. Tr. 179.

14. After hearing the above testimony and observing the demeanor of Petitioner and

Mr. Beasley at trial, the Court finds that Mr. Beasley’s account of the second confrontation is more credible than that of Petitioner. In particular, Mr. Beasley was straightforward and consistent in his testimony. By contrast, Petitioner was evasive and not forthright.

15. In particular, the Court notes that: (a) Petitioner was not believable when she

testified that, throughout the altercation, she restrained herself to such phrases as “Ms. Jackson, stop using profanity at me!” and “I’m not trying to run or control anything!”; (b) Petitioner was not credible when she insisted that she no longer cursed at work at the time of the altercation although she used to curse regularly; (c) Petitioner was not credible when disputing Mr. Beasley’s testimony that she and Ms. Jackson were yelling at one another and being aggressive during the second confrontation; and (d) Petitioner’s insistence that she did not curse at Ms. Jackson throughout the altercation was undermined by Petitioner’s attempt to dispute the still-active Written Warning for cursing another at another employee, especially where Petitioner did not appeal the Warning.

16. Additionally, Petitioner’s account of the first confrontation is undercut by her

testimony about the facts of the second confrontation. Even in the absence of testimony by Ms. Jackson at the trial, the Court finds incredible Petitioner’s testimony that she restrained herself from cursing or being aggressive toward Ms. Jackson during the first confrontation. This is particularly so because: (a) Petitioner admitted stating to Ms. Jackson “You don’t know how to use [the mirror]!” at the outset of the first confrontation, which is a provocative statement; and (b) Petitioner attempted to claim at the trial that Ms. Jackson grabbed the mirror out of Petitioner’s hand during the first confrontation but nowhere alleged Ms. Jackson did so in the three written statements Petitioner submitted during the investigation of the altercation.

17. In the Termination Letter, Respondent stated that one factor in its decision to

terminate Petitioner’s employment effective August 20, 2010 was a written warning for unacceptable personal conduct that Petitioner received on April 29, 2009 (“Written Warning”). See R. Exs. 5 and 7; see also Tr. 201 (Petitioner admits that the Written Warning was made part of her Termination Letter). Respondent issued the Written Warning within 18 months of the Termination Letter. R. Ex. 7.

18. The Written Warning was based on Petitioner’s conduct on March 4, 2009 at

Harnett. R. Ex. 7. The Written Warning states that, on March 4, 2009, Petitioner was upset because she believed another correctional officer, Richard Thompson, had reported to a superior that Petitioner missed counting an inmate who was in the restroom. Id. The Written Warning states that Petitioner admitted using inappropriate language toward Mr. Thompson and telling him: “We can take this issue outside.”

19. The Written Warning instructs Petitioner that Respondent’s workplace policies

require employees to conduct themselves in a professional manner and prohibit using profanity toward other employees or making threats of physical violence or harm. R. Ex. 7.

20. The Written Warning offered Petitioner the opportunity to appeal the Warning.

Id. Petitioner did not appeal the Written Warning, however. Tr. 182. Despite her failure to appeal the Written Warning, Petitioner disputed the contents of the Warning at trial. At trial, Petitioner claimed that, on March 4, 2009, she did not use inappropriate language with Mr. Thompson but only said to him “Damn!” and “Let us step outside!” Tr. 155, 181-82. Petitioner admitted, however, that she was upset with Mr. Thompson because she believed he had reported what she shared with him to a superior. Tr. 155.

21. Respondent’s Human Relations in the Workplace policy states in relevant part:

[Harnett] is an organization of professionals and it is mandatory each employee interact with others in a professional manner.

…

Harassment is considered to be deliberate unsolicited and unwelcome verbal or physical conduct, which creates an intimidating and hostile or offensive environment. Employees shall not direct profanity toward other employees, inmates, probationers, parolees, members of the public, and any other individual they may come in contact with during the course of their employment.

. . .

This memorandum is to serve notice to every employee at Harnett Correctional Institution that conduct of the kind described above is unacceptable, and employees who fail to adhere to this directive will be disciplined in accordance with State Personnel and Department Policy governing personnel conduct.

R. Ex. 2 (pages 000001 to 000002).

22. Respondent’s Violence in the Workplace policy states in relevant part:

It shall be the policy of the Department of Correction to prohibit violence in the work place and to provide a safe and healthy work environment.

…

Workplace Violence: Includes, but is not limited to, intimidation, threats, physical attack, domestic violence or property damage and includes acts of violence committed by State employees, clients, customers, relatives, acquaintances or strangers against State employees in the workplace.

…

Intimidation: Includes, but is not limited to stalking or engaging in actions intended to frighten, coerce, or induce stress.

…

This policy applies to acts of violence, intimidation, and inappropriate aggression occurring between employees or directed at employees by persons other than clients of this agency.

…

It shall be a violation of this policy to:

1. Engage in workplace violence as defined in this policy;

. . .

Violations of this policy shall be considered unacceptable personal conduct and shall result in discipline up to and including dismissal in accordance with the Department's Disciplinary Policy and Procedures.

23. Petitioner received both the Human Relations in the Workplace and Violence in

the Workplace policies. R. Ex. 2 (pages 000002, 000003); Tr. 135. Although denying at trial that she reviewed the policies after receiving them, Petitioner admits she was aware Respondent expects correctional officers to have good behavior, get along with one another, not be aggressive, and not curse one another. Tr. 136-37.

24. Daniel Raing investigated the altercation for Respondent and reported his

findings to Joseph Hall, who was the superintendent of Harnett at the time. Tr. 81, 100-102. Mr. Hall recommended the termination of Petitioner’s employment and signed Petitioner’s Termination Letter on behalf of Respondent. Tr. 103; R. Ex. 8. Mr. Hall testified that Petitioner’s conduct violated both the Human Relations in the Workplace and Violence in the Workplace policies. Tr. 105-106, 110, 113.

25. Further, Mr. Hall explained the practical importance of the two policies in the

unique context of a prison such as Catawba and why Respondent cannot tolerate interactions such as the altercation between employees, particularly in front of prisoners. Mr. Hall testified that: (a) during the altercation, the inmates supervised by Petitioner and Ms. Jackson were left unattended; and (b) due to her participation in the altercation, Petitioner failed to present the proper image of a “role model” and “corrector of inmates.” Tr. 111. Additionally, Mr. Raing confirmed the reasons why Respondent, as a matter of policy, does not permit its employees to engage in altercations with one another in the unique context of a prison. Tr. 96-97.

26. Petitioner produced no evidence suggesting that Respondent has ever tolerated

confrontations such as the altercation between its employees or that it has failed to discipline similar employees with termination. To the contrary, in his 15 years serving as a prison administrator for Respondent, Mr. Hall was unaware of a prior confrontation between correctional officers similar to the altercation. Tr. 111. Likewise, in their many years of working for Respondent, Messrs. Raing and Beasley were unaware of any confrontations between employees similar to the altercation. Tr. 30, 32, 96.

29. Finally, in response to the Court’s questions, Mr. Hall confirmed that he did review the Written Warning at the time of Petitioner’s termination, which, as noted, is specifically mentioned in the Termination Letter. Tr. 130-31; R. Ex. 8. Mr. Hall personally believed that the altercation in and of itself should constitute just cause for termination and he nowhere suggested that he relied only on the altercation as the basis for Petitioner’s termination. See generally Tr. 131-32.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter

jurisdiction over this contested case per Chapter § 126 and § 150B of the North Carolina General Statutes.

2. At the time of her discharge, Petitioner was a career State employee subject to the provisions of the State Personnel Act, N.C.G.S. § 126-1 et seq. Petitioner, therefore, could only “be warned, demoted, suspended or dismissed by” Respondent “for just cause.” 25 NCAC 01J .0604(a).   

3. One of the two bases for “just cause” is “unacceptable personal conduct,” 25 NCAC 01J .0604(b)(2), which includes, inter alia, “conduct for which no reasonable person should expect to receive prior warning,” “the willful violation of known or written work rules,”

and “conduct unbecoming a state employee that is detrimental to state service.” 25 NCAC 01J .0614(8)(a),(8)(d), and (8)(e).

4. The Termination Letter specified that Petitioner was being discharged for unacceptable personal conduct.

5. At the time of the Termination Letter, Petitioner’s prior Written Warning was still an active disciplinary action because 18 months had yet to pass since its issuance. 25 N.C.A.C. 1J.0614(6)(c).

6. Respondent complied with the procedural requirements for dismissal for unacceptable personal conduct pursuant to 25 NCAC 01J .0608 and .0613.

7. Petitioner’s participation in the altercation constitutes unacceptable personal

conduct because it was “conduct for which no reasonable person should expect to receive prior warning,” “the willful violation of known or written work rules,” and “conduct unbecoming a state employee that is detrimental to state service.” 25 NCAC 01J .0614(8)(a),(8)(d), and (8)(e).

8. No reasonable person should have expected to receive a prior warning that Petitioner’s participation in aggressive and threatening behavior (including cursing) with her co-worker in front of prisoners in a State prison was grounds for termination.

9. Additionally, Petitioner’s participation in the altercation was willful and violated known and written work rules. Petitioner admitted that, at the outset of the first and second confrontations, she could have walked away but that she opted not to do so. Petitioner’s decision to remain in the altercation and contribute extensively to it was clearly volitional. Respondent had two written policies addressed above which by their terms prohibit Petitioner’s conduct. Petitioner acknowledged receiving the two policies and further admitted that, regardless of the policies, she was aware that Respondent expects correctional officers to have good behavior, get along with one another, not be aggressive, and not curse one another.

10. Petitioner’s participation in the altercation was also “conduct unbecoming a state employee that is detrimental to state service.” Particularly, in the unique context of State prisons, it is necessary that correctional officers serve as role models to the prisoners they guard, both by behaving professionally with their co-workers and with the prisoners themselves. It is extremely detrimental to Respondent’s mission when its correctional officers behave as Petitioner did in front of Respondent’s inmates, and there was no evidence presented that Respondent had previously tolerated such behavior.

11. Finally, the Written Warning is relevant to determining whether Respondent had just cause to terminate Petitioner’s employment. The Written Warning was still active at the time of Petitioner’s discharge, was mentioned in the Termination Letter, and involves behavior by Petitioner that was highly similar to Petitioner’s behavior during Altercation.

12. Therefore, Respondent has met its burden of proof and established by substantial evidence in the record that it had just cause to terminate its employment of Petitioner for unacceptable personal conduct.

DECISION

The undersigned affirms Respondent’s dismissal of Petitioner in that Respondent had just cause for this disciplinary action per N.C.G.S. § 126-35.

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this Decision and to present written arguments to those in the agency who will consider this decision.

The agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings. The agency that will make the final decision in this contested case is the North Carolina State Personnel Commission.

This the ______day of July, 2011.

Joe L. Webster

Administrative Law Judge

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