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Peterson v. Caswell Developmental Center

Court of Appeals of North Carolina

April 3, 2018

TANKITA T. PETERSON, Petitioner,
v.
CASWELL DEVELOPMENTAL CENTER, DEPT. OF HEALTH & HUMAN SERVICES, Respondent.

          Heard in the Court of Appeals 20 March 2018.

          Appeal 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.

          Glenn, Mills, Fisher & Mahoney, P.A., by Daniel N. Mullins, for petitioner.

          Attorney General Joshua H. Stein, by Assistant Attorney General Milind K. Dongre, for respondent.

          TYSON, JUDGE.

         Caswell 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.

         I. Background

         Caswell 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.

         A. Petitioner's Late Arrivals and Disciplinary Action

         On 2 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."

         On 27 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 Attendance.

         Petitioner 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.

         Petitioner 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 policy.

         Petitioner's 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.

         B. ...


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