TANKITA T. PETERSON, Petitioner,
CASWELL DEVELOPMENTAL CENTER, DEPT. OF HEALTH & HUMAN SERVICES, Respondent.
in the Court of Appeals 20 March 2018.
by respondent from final decision and award entered 23 June
2017 and 6 July 2017 by Administrative Law Judge Melissa
Owens Lassiter in the Office of Administrative Hearings No.
16 OSP 12067.
Mills, Fisher & Mahoney, P.A., by Daniel N. Mullins, for
Attorney General Joshua H. Stein, by Assistant Attorney
General Milind K. Dongre, for respondent.
Developmental Center, North Carolina Department of Health and
Human Services ("Respondent") appeals from the
final decision of the administrative law judge
("ALJ"), which reversed Respondent's decision
to suspend Tankita Peterson ("Petitioner") for five
days without pay. We affirm the decision of the ALJ.
Developmental Center ("Caswell") is a state-run
facility operated by the North Carolina Department of Health
and Human Services. Caswell provides care to residents who
have disabilities, behavioral challenges, or medical
conditions that require 24-hour care and supervision.
Petitioner is a career state employee and has been employed
at Caswell since October 2009. Petitioner was assigned to
work the morning shift from 6:00 a.m. to 2:30 p.m. at the
Magnolia Cottage, where five patients resided.
Petitioner's Late Arrivals and Disciplinary Action
June 2016, Petitioner overslept to timely report for work.
She awoke at approximately 6:20 a.m., and arrived at work at
7:00 a.m., an hour after her scheduled start time. On 6 June
2016, Petitioner received a documented counseling memo for
unacceptable personal conduct on 2 June 2016 for her failing
to report to work as scheduled and failing to notify her
supervisor of her need to be late prior to the scheduled
start of her shift, in violation of Caswell's Policy 4.9
Supervisor Notification of Absence. The memo further noted
that violation of Policy 4.9 is an unexcused absence.
Petitioner refused to sign the memo, because she "d[id]
not agree . . . at all."
August 2016, Petitioner again overslept. She was awakened by
a phone call from a colleague at approximately 6:30 a.m., and
arrived for work at 7:00 a.m. Petitioner was issued a notice
of pre-disciplinary conference on 5 September 2016,
requesting she attend the pre-disciplinary conference the
next day. The notice informed Petitioner of the possibility
of a suspension without pay due to Petitioner's
unacceptable personal conduct of reporting to work late and
for failing to notify her supervisor on 27 August 2016, in
violation of Policy 4.9 and Policy 5.1.46 Time and
was given the opportunity to respond to the proposed
suspension without pay at the pre-disciplinary conference on
6 September 2016. In her written statement, Petitioner
acknowledged she had overslept on 27 August 2016, and the
alarm clock, which had failed to wake her up on that day, had
previously failed before.
was suspended for five days without pay on 8 September 2016
for "unacceptable personal conduct" including:
1) conduct for which no reasonable person should expect to
receive prior warning, 2) conduct unbecoming a State employee
that is detrimental for state service and 3) willful
violation of known or written work rules [i.e., Caswell
Developmental Center Administrative Policy Manual #5.1.46
(Time and Attendance) and Developmental Technician Manual
#4.9 (Supervisor Notification of Absences)]. Specifically,
[reporting] to work late and fail[ing] to notify a supervisor
of [Petitioner's] need to be late from work, according to
supervisor referenced the previous documented counseling for
the same issue on 6 June 2016, and Petitioner's
in-service training on the violated policies on 22 January
2016 and 6 June 2016.