GLORIA R. WATLINGTON, Petitioner,
DEPARTMENT OF SOCIAL SERVICES ROCKINGHAM COUNTY, Respondent.
in the Court of Appeals 8 March 2017.
by respondent from final decision entered 5 July 2016 by
Judge J. Randall May in the Office of Administrative Hearings
No. 16 OSP 00297.
Hayes for petitioner-appellee-cross-appellant.
Rockingham County Attorney's Office, by Emily Sloop, for
County Department of Social Services ("RCDSS")
appeals and Gloria Watlington ("Watlington")
cross-appeals from a final decision affirming
Watlington's termination and ordering RCDSS to provide
back pay salary to Watlington due to a procedural violation.
We affirm in part, reverse in part, and remand.
hired Watlington as a Community Social Services Technician on
9 January 2012. Her primary responsibilities included
providing transportation to families and children served by
RCDSS, supervising case visits between parents and children
in RCDSS' custody, and providing case visit reports to
RCDSS social workers.
Watlington was hired, RCDSS provided her with a copy of
Rockingham County's Personnel Policy ("RCPP").
Watlington also attended an orientation for new employees.
The personnel policy and orientation described appropriate
employee behavior, including RCDSS' policies on
unacceptable personal conduct and the acceptance of gifts and
April 2013, the Rockingham County Board of Commissioners
passed a resolution to establish a consolidated human
services agency, which consolidated its departments of public
health and social services. The resolution, along with a
subsequent resolution passed on 3 August 2013, clarified
employees of the consolidated human services agency remained
subject to the North Carolina Human Resources Act
("SHRA") in most circumstances. The resolutions
provided that for those areas of policy and procedures where
the RCPP had been recognized by the State as substantially
equivalent to the SHRA, the employees are governed
exclusively by the RCPP. RCDSS presented no evidence
demonstrating the State had recognized the RCPP as
December 2015, Watlington supervised a RCDSS custody visit
between P.H. and her daughter. P.H. testified she wanted to
do something nice for Watlington, because Watlington
"had been real nice in letting us have extra time on our
visits and been encouraging that we would be able to be
reunited." P.H. purchased an inexpensive jewelry set,
which Watlington accepted.
Watlington's supervisor informed Watlington the gift
violated RCDSS' policy, she immediately surrendered the
jewelry set to RCDSS. Watlington's supervisor notified
Debbie McGuire, the Director of RCDSS, of the occurrence. On
9 December 2015, Watlington was placed on administrative
leave with pay, pending investigation and review of
allegations made against her regarding violation of the
RCPP's provision prohibiting the acceptance of gifts.
the investigation, additional allegations came forth
regarding Watlington's personal conduct. These
allegations included she had: accepted food and beverages
from RCDSS clientele on more than one occasion; used Social
Security Income ("SSI") money belonging to a child
in RCDSS custody to purchase food for herself; accepted a
cash loan of sixty dollars from a foster parent; and removed
a bassinet stored at RCDSS without permission and gave it to
another foster family.
December 2015, RCDSS provided Watlington a written notice of
a pre-dismissal conference to be held that afternoon to
discuss a recommendation for her dismissal, due to
"unacceptable personal conduct." The notice listed
the specific reasons for the recommendation of dismissal.
Watlington, her supervisor, and McGuire attended the meeting
and discussed the documented allegations.
December 2015, Watlington received a written notice of
dismissal from employment. The notice again included the
specific reasons for Watlington's dismissal and informed
her of her right to appeal to the County Manager, Lance
Metzler. Watlington appealed.
upheld Watlington's termination and notified her by
letter on 15 December 2015. The letter did not inform
Watlington of the specific reasons why Metzler was upholding
her termination or that his letter was public record.
Watlington appealed her termination to the North Carolina
Office of Administrative Hearings and Review
("OAH") by filing a Petition for a Contested Case
Hearing on 11 January 2016.
case was heard before the administrative law judge ("the
ALJ") on 23 May 2016. After the hearing and reviewing
the parties' briefs and proposed orders, the ALJ entered
his final decision and made the following findings of fact:
13. While employed by Respondent, Petitioner engaged in the
following conduct: (1) accepted a loan in the amount of sixty
dollars ($ 60.00) offered by a foster parent between two (2)
and three (3) years prior to her termination by Respondent;
(2) used approximately six dollars ($ 6.00) of a minor
child's money to purchase food for herself while
transporting the minor child across the state at the request
of her supervisor, which Petitioner repaid to Respondent
within one (1) week; (3) consumed leftover food purchased by
a foster parent for herself and a minor child when offered by
the foster parent; (4) gifted a bassinet to a foster family
being served by Respondent from an area where Respondent
keeps both donations and property assigned to particular
families under its supervision, and upon being notified of a
problem, retrieved said bassinet and returned it to
Respondent; (5) accepted a slice of cake or cupcakes offered
by a foster family at a minor child's birthday party; and
(6) accepted a wrapped pair of earrings from a foster parent
on behalf of her child, which were immediately returned upon
an issue being raised by Respondent.
14. Prior to Petitioner's voluntary disclosure of item
number six (6) above to a co-worker, Respondent had taken no
formal disciplinary action against Petitioner, despite being
aware of at least two (2) of the same aforementioned
15.Prior to Respondent's initiation of an investigation
into Petitioner's conduct, no witness called to testify
by Respondent had reported items (1), (3), or (5) of the
aforementioned conduct as concerning to them, violating the
RCPP; or asked Respondent to initiate formal discipline
against Petitioner based on such conduct despite being fully
aware of them.
16. Respondent offered no evidence that any of the
aforementioned conduct by Petitioner: (1) negatively impacted
her job performance; (2) influenced her job performance,
recommendations, or reporting; (3) diminished the reputation
of Respondent in the community; or (4) led to tangible
financial, legal, or regulatory consequences for Respondent.
. . .
18. On or about August 5, 2013, the Rockingham County Board
of Commissioners passed an amending and clarifying resolution
stating that "[e]mployees of the Consolidated Human
Services Agency remain subject to the State Personnel Act. In
those areas where the Rockingham County Personnel Policy has
been recognized by the state as 'substantially
equivalent, ' the employees will be governed by the
provisions of the [RCPP]."
19. Respondent offered no evidence demonstrating that it is
exempt from the provisions of the State Human Resources Act
("SHRA"), codified at N.C. G.S. § 126-1 et
seq, as implemented by the North Carolina Administrative
Code at 25 NCAC 01J.0101 et seq, or that its
disciplinary or grievance procedures have been recognized by
the State Human Resources Commission as substantially
also made the following conclusions of law:
1. Petitioner is subject to the protections of the SHRA.
2. Due to the language of the two (2) resolutions passed by
the Rockingham County Board of Commissioners and the absence
of an exemption by the State Human Resources Commission
respecting its disciplinary or grievance procedures,
Respondent's conduct as to disciplinary or grievance
procedures is controlled by Title 25, Subchapter J, of the
North Carolina Administrative Code.
3. In cases in which a state employee is disciplined for
"unacceptable personal conduct" that does not
involve criminal conduct, the North Carolina Court of Appeals
interpreted the North Carolina Supreme Court's decision
in Carroll as adopting a "commensurate
discipline" approach. See Warren v. N.C. Dep't
of Crime Control and Pub. Safety, 726 S.E.2d 920, 924 (
N.C. App. 2012). According to Warren, "the
proper analytical approach is to first determine whether the
employee engaged in the conduct the employer alleges. The
second inquiry is whether the employee's conduct falls
within one of the categories of unacceptable personal conduct
provided by the Administrative Code. Unacceptable personal
conduct does not necessarily establish just cause for all
types of discipline. If the employee's act qualifies as a
type of unacceptable conduct, the tribunal proceeds to the
third inquiry: whether that misconduct amounted to just cause
for the disciplinary action taken."
4. Respondent failed to comply with the procedural
requirements for dismissing Petitioner from employment for
unacceptable personal conduct by not providing specific
written reasons and written details in the Final Agency
5. 25 NCAC 0lB .0432(b) provides, "[f]ailure to give
specific reasons for dismissal, demotion or suspension
without pay shall be deemed a procedural violation. Back pay
or attorney's fees, or both, may be awarded for such a
period of time as the Commission determines, in its
discretion, to be appropriate under all the
6. The December 15, 2015 letter written by Rockingham County
Manager Lance L. Metzler constitutes the Final Agency