STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF LINCOLN 09 OSP 2781

Marcie A. Edler, )

Petitioner )

)

vs. ) DECISION

)

Lincoln County Department of )

Social Services, )

Respondent )

________________________________________________________________________

The above-entitled matter was heard before the undersigned Administrative Law Judge, Selina M. Brooks, on November 5, 2009, at the old Catawba County Courthouse in Newton, North Carolina.

APPEARANCES:

Petitioner: Marcie A. Edler, pro se

6729 Stoneglen Drive

Denver, North Carolina 28037

Respondent: Jeffrey A. Taylor

County Attorney for Lincoln County

P. O. Box 159

Lincolnton, North Carolina 28093

ISSUE:

Whether Respondent had just cause to terminate Petitioner from her employment as Child Protective Services (“CPS”) Investigator/Family Assessor?

APPLICABLE STATUTES AND RULES:

N. C. Gen. Stat. § 126, et seq

N.C. Gen. Stat. § 150B

25 N.C.A.C. 01I et seq.

RESPONDENT’S WITNESSES:

Megan Marie Meade, Social Work Supervisor

Tony Bruce Carpenter, Services Program Administrator

Susan Lynn McCracken, Director of Social Services

PETITIONER’S WITNESS:

Petitioner

RESPONDENT’S EXHIBITS:

1. Blank social worker documentation tool (T p15, T p17)

2. 10/15/08 written reprimand (T p36)

3. Plan of action (T p40)

4. 3/12/09 written reprimand (T p65-66)

5. 3/27/09 termination letter (T p119)

PETITIONER’S EXHIBIT:

1. 4/4/07 performance evaluation (T p124)

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the undersigned Administrative Law Judge (ALJ) makes the following Findings of Fact. In making these findings of fact, the ALJ has weighed all the evidence and has assessed the credibility, including, but not limited to, the demeanor of the witnesses, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT:

1. The parties received notice of the scheduled hearing at least 15 days in advance of the hearing.

2. Petitioner, Marcie A. Edler, was at all times material to this proceeding an employee of the Lincoln County Department of Social Services (“LCDSS”) and subject to the provisions of the State Personnel Act relating to local government employees. She was dismissed from her position as of March 30, 2009.

3. On April 23, 2009, Petitioner filed a Petition for a Contested Case Hearing with the Office of Administrative Hearings claiming failure to receive priority consideration for alternate positions, harassment, and wrongful termination.

4. On June 8, 2009, Petitioner filed her Prehearing Statement.

5. On June 15, 2009, Respondent, through counsel, filed a motion to dismiss the Petition in its entirety on the ground that Petitioner’s Prehearing Statement was untimely filed. The motion further asked the Court to dismiss the claim of failure to receive priority consideration on the ground that the Petition itself indicated that the positions for which Petitioner allegedly applied would have been lateral transfers and not promotions. The motion also asked the Court to dismiss the claim of harassment on the ground that the Petition did not allege that such harassment, if any, was based on age, sex, race, color, national origin, religion, creed, or handicapping condition.

6. By Order filed on July 20, 2009, the Undersigned ruled that Respondent was not harmed by the late filing of Petitioner’s Prehearing Statement and denied Respondent’s motion to dismiss as to this issue.

7. The Undersigned further ruled that Petitioner was not entitled to priority consideration for the positions for which she applied because such positions were lateral transfers, not promotions, and granted Respondent’s motion to dismiss as to this claim.

8. The Undersigned further ruled that Petitioner had not based her allegation of harassment on age, sex, race, color, national origin, religion, creed, or handicapping condition in accordance with N.C.G.S. 126-36 and granted Respondent’s motion to dismiss said claim.

9. The Undersigned ruled that Petitioner had alleged facts concerning wrongful termination sufficient for a pleading and denied Respondent’s motion to dismiss as to said claim.

10. In her position as a CPS Investigator/Family Assessor, Petitioner’s responsibilities included assessing families for issues of abuse, neglect, or dependency and initiating reports of any such matters. In the event that she discovered any abuse, neglect, or dependency, she was also responsible for passing cases on to in-home services workers to work with families long-term to try to alleviate such problems. Petitioner’s responsibilities included keeping records as to the details discovered during her investigations. (T pp12-13).

11. Petitioner’s immediate supervisor was Social Work Supervisor (“SWS”) Megan Meade. SWS Meade’s supervisor was Services Program Administrator (“SPA”) Tony Carpenter, who reported directly to LCDSS Director Susan McCracken. (T p11).

12. In early October 2008 SWS Meade discovered some discrepancies in records kept by Petitioner. The discrepancies she found created concerns about the information in the records kept by Petitioner and the accuracy of the information therein. (T pp13-14).

13. Specifically, SWS Meade discovered that a record related to a particular case contained no information about police responses to the home involved. SWS Meade returned the record to Petitioner for further information, and Petitioner later returned the record to SWS Meade with information indicating that no police responses had occurred at the subject home. (T p14).

14. SWS Meade had had personal experience working with the family involved in the aforesaid instance and was aware that police had in fact been called to the home. She confirmed such police response with the communications center. (T p14).

15. SWS Meade reported this incident to SPA Carpenter, who suggested that she randomly pull some other records kept by Petitioner to see if the discrepancy was an isolated occurrence or part of a pattern. (T p14).

16. SWS Meade’s investigation revealed multiple instances in which Petitioner had documented things in her records that were untrue. (T p15).

17. CPS Investigators/Family Assessors at LCDSS, including Petitioner, used a documentation tool that provides a template or checklist of information to be obtained in an investigation. Petitioner was very familiar with the use of the tool because she had participated in a pilot project involving the use of the tool for several months before it went into use statewide in the summer of 2008. (T pp15-17).

18. Accuracy, truthfulness, and completeness are very important in the keeping of such records, which can be subpoenaed to court in custody matters and used to determine whether children are at risk. (T pp20-21).

19. SWS Meade met with Petitioner on October 3, 2008, and warned her that it appeared that she was falsifying records and that such action was a serious offense that could result in termination. (T p23).

20. SWS Meade identified multiple cases in which domestic violence had resulted in police responses to homes, but the records kept by Petitioner showed that no police response had occurred. (T pp25-28, T p30).

21. In one instance, Petitioner had worked with a family from June 2008 to August 2008 without documenting until August that a child in the family had a cigarette burn and did not conduct a follow-up investigation of the circumstances surrounding the burn. (T pp28-30).

22. In another instance, SWS Meade found that records kept by Petitioner indicated that no police response had occurred to a particular home when in fact police had been called to the home nine times within a six-month period. (T p30).

23. In another case, Petitioner failed to follow up to make sure that a parent obtained a court-ordered substance abuse assessment. (T pp31-32).

24. On October 12, 2008, SWS Meade and SPA Carpenter met with Petitioner to talk about the issues of inaccuracy and falsification of records. (T p33).

25. Thereafter, SWS Meade met with SPA Carpenter and LCDSS Director McCracken to discuss how to proceed with Petitioner. They decided to issue a written reprimand and put Petitioner on a plan of action to correct the problems with her records. On October 15, 2008, they issued such a plan of action to Petitioner. (T pp35-38).

26. Petitioner was given a week of “down time” in which she was not assigned new cases in order to enable her to correct the inaccuracies and deficiencies in her records. (T pp37-38).

27. At the time, other CPS Investigators/Family Assessors had many more cases assigned to them than Petitioner did. (T p39).

28. In February 2009 SWS Meade again noticed problems with Petitioner’s records, specifically, that she had made no effort to contact an absent parent regarding child support as required by the State. (T p42).

29. Following her discovery of additional issues with Petitioner’s records in February 2009, SWS Meade uncovered numerous other examples of situations where Petitioner had failed to adequately document her cases or follow up on additional information or services that were needed based on the facts of those cases.

30. In one such instance, a child lived with her grandparents and visited her mother’s home every other weekend. The biological father was absent. The record indicated no effort to contact the absent parent regarding child support as required by the State. Also, the record contained no information indicating that Petitioner had made a visit to the mother’s home. Such site visits are required in order to assess for any risk factors. SWS Meade returned the record to Petitioner for completion. When Petitioner later returned the record to SWS Meade, it indicated that a letter had been sent to the absent father. Petitioner also explained to SWS Meade at that time that she had conducted no home visit with the mother because she was homeless. (T pp44-45).

31. A record in another of Petitioner’s cases indicated that she had made her first contact with a family in August but had had no other contact with them until December. Biweekly contacts are the general practice in the agency. During the four-month lag between contacts, the mother went to jail; the father and one child moved to Gaston County; and the other children moved in with other relatives in Lincoln County. (T p49).

32. In another case, Petitioner had failed to contact at least two collateral references for background information on a family whose case she was handling. (T pp50-51).

33. In another case, a father had been released from prison after serving time for molesting his daughter and was being allowed visitation with the daughter. Petitioner had failed to document whether he had had a sex offender evaluation or completed any treatment, and there was no documentation that the daughter had had any therapy in connection with the molestation. No criminal record for the father was included in the record. (T pp51-52).

34. In a case in which domestic violence appeared to be an issue, the record indicated that Petitioner had failed to refer a mother for anger assessment and follow-up services despite the fact that she appeared to be the aggressor in the violence. The available evidence indicated that she had stabbed her live-in boyfriend and that the home had structural damage such as holes in walls that appeared to have been caused through violence. An 18-month-old child was living in the home and appeared to SWS Meade to be at risk. (T pp53-56).

35. In another instance, Petitioner had failed to initiate an investigation within 72 hours of a report indicating neglect or dependency in violation of N.C.G.S. 7B-302. (T pp 57-59).

36. SWS Meade met with Petitioner on March 4, 2009, to discuss the aforesaid deficiencies in her records. SWS Meade met with SPA Carpenter the following day to discuss the matter with him. (T p61).

37. On March 12, 2009, SWS Meade issued a formal reprimand to Petitioner with a recommendation for termination. On March 13, 2009, LCDSS Director McCracken placed Petitioner on investigatory status with pay pending a predisciplinary conference. (T p64).

38. Director McCracken, SWS Meade, and SPA Carpenter conducted a predisciplinary conference with Petitioner on March 19, 2009. (T p65).

39. In a letter dated March 27, 2009, Susan L. McCracken, LCDSS Director, notified Petitioner that she was being terminated from her employment as of March 30, 2009, for unacceptable personal conduct, grossly inefficient job performance, unsatisfactory job performance, insubordination, and unresolved written reprimand. (T p69, T pp113-19).

40. Respondent has met its burden to prove that it had just cause to terminate Petitioner. (T p128-29).

BASED UPON the foregoing findings of fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this action. The parties received proper notice of the hearing in the matter. To the extent that the findings of fact contain conclusions of law, or that the conclusions of law are findings of fact, they should be so considered without regard to the given labels.

2. At the time of the termination of her employment, Petitioner was subject to the State Personnel Act in accord with N.C.G.S. § 126-5(a)(2)(c). N.C.G.S. §126-35 provides that no career State employee subject to the State Personnel Act shall be discharged, suspended or demoted for disciplinary reasons, except for just cause.

3. At the time of this termination, Petitioner was subject to the State Personnel Act pursuant to N.C.G.S. § 126-5(a)(2)(c). Respondent was subject to the State Personnel Act as codified in N.C.G.S. § 126-1 et seq. and all applicable regulations. By stipulation from Respondent, notice is taken that neither Respondent Department nor the Board of County Commissioners for Lincoln County had applied for “substantial equivalency” designation from the State of North Carolina’s Office of State Personnel as to its employment policies regarding the matters in this case and they had not otherwise received a substantial equivalent exemption different from Chapter 126 pursuant to N.C. Gen. Stat. § 126-11. As Respondent was not exempt from the provisions of Chapter 126 for purposes of this hearing, the Undersigned is guided by the law, regulations, guidelines and/or policies established by the Office of State Personnel.

4. N.C.G.S. §126 states that in contested cases pursuant to Chapter 150B of the General Statutes, the burden of showing that a career State employee subject to the State Personnel Act was discharged, suspended, or demoted for just cause rests with the department or agency employer. The Respondent has the burden of proof by a greater weight or preponderance of the evidence that its dismissal of Petitioner was for just cause.

5. Respondent has met its burden to prove that it had just cause to terminate Petitioner.

DECISION

It is the decision of the Undersigned that Respondent has carried its burden of proof by a preponderance of the evidence that Petitioner was terminated for just cause and that the decision to terminate Petitioner’s employment is hereby upheld.

ORDER

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

NOTICE

The State Personnel Commission will issue an advisory opinion to the Director of the Lincoln County Department of Social Services. G.S. 150B-23(a). The Director of the Lincoln County Department of Social Services will make the final decision in this contested case.

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency is required by 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.

N.C. Gen. Stat. § 150B-36.

IT IS SO ORDERED.

This 4th day of February, 2010.

________/s/_________________________

Selina M. Brooks

Administrative Law Judge

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