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FINAL DECISION
THIS MATTER came on for hearing before the undersigned Donald W. Overby, Administrative Law Judge, on October 15, 2012 and December 6, 2012, in Edenton, North Carolina. APPEARANCES
Petitioner’s Petition for Contested Case Hearing alleged that she was discharged without just cause and that Respondent discriminated against her on account of her age. During the course of the contested case hearing in this matter, Petitioner withdrew her claim that she was discharged and/or discriminated against on account of her age. As such, the sole issue that remains is whether Respondent had just cause to dismiss Petitioner in accordance with the applicable provisions of the State Personnel Act and the North Carolina Administrative Code. .APPLICABLE STATUTES AND RULES
25 N.C.A.C. 01J.0604 25 N.C.A.C. 01J.0606 25 N.C.A.C. 01J.0614 PETITIONER’S WITNESSES
RESPONDENT’S WITNESSES
EXHIBITS
Petitioner Exhibits 2, 5-6, 19, 21-22 and 24 were admitted. Respondent Exhibits 1-6 and 8-29 were admitted. BASED UPON careful consideration of the sworn testimony of the witnesses presented
at the hearing and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, 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. From the evidence presented, the undersigned makes the following: FINDINGS OF FACT
The parties acknowledged proper notice of the date, time and place of the hearing. There is no issue of jurisdiction in the Office of Administrative Hearings. Petitioner has worked for Respondent’s Caledonia Correctional Facility on two separate occasions. (Transcript p. 433) Her last period of employment began in 2004.
(Transcript pp. 181, 433) She was employed as a registered staff nurse. Transcript pp. 21, 181-
182. Respondent has established professional practice standards for Registered Nurses, of
which Petitioner received a copy. (Transcript 13, Respondent Exhibit 1)

The incident that led to Respondent’s decision to dismiss Petitioner from employment occurred on August 11, 2011. (Respondent Ex. 11) On August 11, 2011, Petitioner was assigned to what the Respondent called the satellite clinic that was located in Unit 4 at the Caledonia Correctional Facility. (Petitioner’s Exhibit 2, Transcript pp. 22, 438-439) Her duties on that day required her to take the designated medication cart to the satellite clinic in order to administer or distribute medications (“med-pass”) to the inmates in Units 3 and 4. (Transcript, pp. 13-16, 15-18, 439) In addition to administering medication, Petitioner was also responsible for conducting sick call, completing medication administration records and doing lab draws. (Transcript pp. 24, 37, 439) The policy and procedures of Respondent require that, during the medication passes, the cart is unlocked while it's manned by an employee. The cart is to be locked while within the clinic following medication pass or at any time the assigned nurse is not immediately near or beside and attentive to the cart. (Transcript 15-16, Respondent Exhibit. 2) Petitioner had been assigned to the satellite clinic on multiple occasions prior to August 11, 2011. (Transcript pp. 182-183, 439) When Petitioner was assigned to the satellite clinic, she was at times accompanied by a medical technician who would help her by administering medications. (Transcript pp. 79, 154, 183-185, 257, 439-440) Petitioner has been assigned to the satellite clinic numerous times without the assistance of a medical technician. On August 11, 2011, Petitioner was the only nursing staff member assigned to the satellite clinic. (Petitioner’s Exhibit 2, Transcript pp. 25, 80-81,183, 439-440) Respondent’s drug storage policy requires that all medications be “located in a locked, sanitary and secure area.” (Respondent’s Exhibit 2, Transcript pp. 14, 124) When a staff nurse administers medications in the satellite unit, the nurse places the medication cart next to the door of the satellite clinic. The staff nurse administers the medication by passing the medications to the inmates through a window in that same door. (Transcript pp. 34-35) While the employer’s drug storage policy makes no specific reference to the medication cart, staff nurses are expected to lock the medication cart when they are not manning the medication cart, which would be consistent with the drug storage policy. (Respondent’s Exhibit 2, Transcript pp. 35, 131) On August 11, 2011, Correctional Officer Kaisha Boddie was assigned to escort Unit 4 inmates to the satellite clinic and remain at the clinic while those inmates were being seen by Petitioner. (Transcript pp. 254-256) Correctional Officer Corie Boone was assigned to escort Unit 3 inmates to the satellite clinic and remain at the clinic while those inmates were being seen by Petitioner. (Transcript pp. 304-307) The correctional officers are assigned to transport the inmates from their respective units to the satellite clinic, and in part to provide security. (Transcript pp. 428-430) When Petitioner arrived at the satellite clinic on August 11, 2011, she placed the medication cart by the clinic door and began to administer medication to the Unit 4 inmates. (Transcript pp. 190-194, 442) While administering the medication, Petitioner directed Correctional Officer Boddie to allow an inmate to enter the clinic so that the inmate could have his blood drawn. (Transcript pp. 299, 444) Correctional Office Boone arrived from unit 3 at approximately the same time that the inmate entered the clinic for his blood draw. Officer Boone also entered the clinic. (Transcript pp. 269, 291, 306, 312,443) Petitioner admittedly did not lock the medication cabinet while she was drawing the inmate’s blood. (Transcript pp. 199, 443) The inmate who was having his blood drawn appeared to become faint. Petitioner stayed with the inmate to assist him and make sure that he did not fall to the floor. (Transcript p. 444) Petitioner stayed with the inmate for approximately three to five minutes. (Transcript pp. 204, 445) During that time, Petitioner occasionally glanced at the door while she was caring for the inmate inside. (Transcript p. 444) She did not observe any inmate come to the door and take medication from the medication cart. (Transcript p. 445) Once the inmate was ready to leave the clinic, Correctional Officer Boddie escorted the inmate to the door and Petitioner resumed administering medication to the unit 3 inmates. (Transcript p. 273) There is conflicting testimony about what was happening both inside and outside of the clinic at the time the inmate became faint. Officer Boddie testified that she would call her Sergeant when her inmates were finished and that she would remain until the Unit 3 Officer arrived. There is evidence that there is a policy that only one officer and one inmate are to be inside the clinic at any given time. Officer Boone stated that on his arrival he did not see any inmates that belonged to Unit 4 but he did see Officer Boddie. It is not clear whose inmate became faint. It is not clear why both officers were inside. It is not clear if more than one inmate was inside. It is not clear if inmates were in the area outside of the clinic; however with both officers inside, it seems apparent that inmates must have been milling about. There is even contradictory testimony of how/when the inmates come inside the locked gates to the area outside the clinic. There is no question that the Correctional Officers are not responsible for the medical cart and that their attention should be directed to the inmates within their respective charge. Neither Officer Boddie nor Officer Boone ever saw Petitioner use the key to lock the medication cart on August 11, 2011. Both observed the cart unlocked. (Transcript p. 263) Neither Officer Boddie nor Officer Boone observed any inmates take any medication from the medication cart on August 11, 2011. R. 19. There is no evidence that either Officer Boddie or Officer Boone were responsible in any regard for taking the medications. Both Officer Boddie and Officer Boone were inside the satellite clinic when the inmate seemed as if he needed medical attention on August 11, 2011. (Transcript p. 268-273) Both witnessed Petitioner leave the medication cart and attend to the inmate who was seated beside the desk. It was Officer Boddie’s opinion that on August 11, 2011 Petitioner was attempting to do too many tasks at one time inside of the satellite clinic. Officer Boddie observed Petitioner trying to write inmate records from finger sticks, pass out medications, and fan another inmate all at the same time. (Transcript p. 297-298) Officer Boone testified that his attention, on August 11, 2011, was on the inmate inside the satellite clinic. Officer Boone testified that it was not his responsibility to secure the medication cart and that he did not have a key to lock the medication cart. (Transcript p. 316) Officer Boone stated that other nurses that he had observed in the satellite clinic kept the medication cart locked and would lock the medication cart each time they stepped or turned away from the cart. (Transcript p. 320 – 321) After completing her duties in the satellite clinic, Petitioner left the clinic in order to administer medication in the segregation unit. Petitioner left the medication cart in the satellite clinic and locked the door to the clinic. (Transcript pp. 445-446) She contends that she did not lock the medication cart because she had pushed the cart away from the window and locked the door. (Transcript p. 447) When Petitioner completed her duties in the segregation unit, she returned to the satellite clinic and unlocked the door. (Transcript p. 446) She began to count the medication in the medication cart and discovered that some Ultram and Neurontin were missing from the medication cart. (Transcript pp. 446-448) Petitioner promptly called lead nurse Alston and informed her that some medication was missing. (Transcript p. 448) On August 11, 2011, Brian Wells was employed as Petitioner’s Nurse Supervisor. (Transcript pp. 9, 40) He was notified that Petitioner had passed out medication at the satellite clinic that morning and that Petitioner had reported medications Ultram and Neurontin missing from the satellite clinic medication cart. (Transcript p. 40, Respondent Exhibit 9) Ultram and Neurontin are medications used to treat pain which are known to be abused by inmates. (Transcript p. 41) Either Ultram and/or Neurontin could be considered dangerous. (Transcript p. 42) Neurontin could cause seizures, somnolence, dizziness, and affects the central nervous system. Ultram is very similar to a narcotic and causes dizziness, somnolence, and unstable gait. The sale or transmission of Ultram or Neurontin through the inmate population would pose a risk to the security of the institution and to the inmate population because either medication could cause serious injury or death to someone taking it for whom it was not prescribed. (Transcript pp. 146-147) Mr. Wells reported to the satellite clinic and questioned Petitioner regarding the missing medication. It was determined that 53 Ultram and an unknown quantity of Neurontin were missing. Mr. Wells assisted in searching the satellite clinic for the missing medication, and notified custodial staff regarding the missing medication. (Respondent Exhibit 9) After searching the clinic, the medication could not be located. (Transcript pp. 354-355, Respondent Exhibit 23) Mr. Wells reported the incident to his supervisor, John Grimes. (Transcript p. 74) Mr. Wells also testified that, in the year 2010 to 2011, at least three of Petitioner’s performance appraisals as documented in her “TAP” entries had been unsatisfactory or below good performance. (Transcript p. 62, Respondent Exhibit 12) Review of some of Petitioner’s performance appraisals reveal that she had numerous instances of problems in satisfactorily performing her duties. Inasmuch as they were detailed in the performance reviews, she was counseled on such matters, given a plan of action and given an opportunity to correct any short-comings. Petitioner had two prior written warnings which were still active at the time of the August 11, 2011 incident. Mr. Wells stated more than once in his testimony that it was his understanding that Petitioner was dismissed because she had two prior active written warnings. It was his opinion that this issue alone warranted a written warning and that is what he thought was going to happen. Through the investigation of this matter, some hypothesized that it was while Petitioner was at the segregation unit that the medicines were stolen. This begs the question of how would inmates be milling about in that area, even though the chaplain’s office is in the same area. The credible testimony is that inmates would not be allowed to be in that area unless there was a guard present, which would contradict the theory that the event took place while Petitioner was at segregation. It is also not consistent with the version of facts which was related to Mr. Greene by an inmate who was involved. Donald Greene was the assistant unit manager for Unit 3 on August 11, 2011, which is adjacent to Unit 4 where the satellite clinic is located. (Transcript pp. 352-353, Respondent Exhibit 23) When he first arrived at work he was notified that medication was missing from the satellite clinic. (Transcript p. 354) Mr. Greene went immediately to the satellite clinic and he instituted a search of unit 3 which led to the discovery of some of the missing medication. (Transcript pp. 359-360) While searching the dormitories, Mr. Greene was notified that an inmate wished to speak to him. The inmate told Mr. Greene that he had witnessed the theft of the medication. Specifically, the inmate told Mr. Greene that the cart was left unsecured and that another inmate served as a distraction and inmate Hood took medication out of the cart. Hood split the medication between himself and several other inmates. The informant was one of the inmates that got some of the pills. (Transcript p. 357) The informant told Mr. Greene that he had hidden his share of the medication, 26 pills, in the dayroom area. Mr. Greene located and recovered the medication from the dayroom. (Transcript p. 359, Respondent Exhibit 2) Mr. Greene stated that the other inmates identified as being involved were interviewed, but denied any involvement in the incident. (Transcript p. 360) Mr. Greene stated that the August 11, 2011 incident involving Petitioner was the only occasion of medication being stolen from the medication cart in the satellite clinic of which he was aware. There is conflicting evidence about whether or not there were other instances in which medication was missing. There was apparently at least one other occasion because the person suspected resigned immediately after being questioned about the missing meds. Mr. Greene stated that other nurses who work in the satellite clinic keep the medication cart locked. (Transcript p. 362) Lieutenant Portress, the officer in charge (OIC) at the time of the August 11, 2011 incident, took written statements on that same date from the individuals involved in the incident. (Transcript p. 392) The following individuals gave written statements on August 11, 2011: Assistant Unit Manager Greene, Petitioner, Correctional Office Boddie, Correctional Officer Boone, and Nurse Supervisor Brian Wells. (Respondent’s Exhibits 9, 17, 19, 21, 23) Superintendent Grady Massey was employed at the Caledonia Correctional Facility at the time of the August 11, 2011 incident. (Transcript p. 390) On August 12, 2011, Superintendent Massey placed Petitioner on investigatory status pending an investigation of the August 11, 2011 incident. (Respondent’s Exhibit 24, Transcript pp. 393-394) Superintendent Massey and John Grimes, Regional Nurse Supervisor, decided to have someone from outside of Caledonia conduct an investigation of the August 11, 2011 incident. (Transcript p. 395) Shannon Ayscue, a Nurse Supervisor II at Warren Correctional Institution, was asked to conduct the investigation. (Transcript, pp. 159-160, 395-396) Nurse Supervisor Ayscue subsequently conducted an investigation and submitted a written report to Superintendent Massey. (Petitioner’s Exhibit 19, Transcript pp. 396-397) In that report, Nurse Supervisor Ayscue identified two concerns: a security issue with respect to the manner in which the clinic door is secured by the correctional officers; and, Petitioner’s failure to lock the medication cart. (Petitioner’s Exhibit 19) In her report, Ms. Ayscue stated that the inmates reached through the door into the unlocked medication cart and removed the medication. (Petitioner’s Exhibit 19) That conclusion was consistent with the information that a confidential informant provided to Assistant Unit Manager Greene. (Respondent’s Exhibit 23, Transcript pp.357-359) Ms. Ayscue determined that Petitioner had violated Respondent’s policy and procedures by leaving the medication cart unsecured. Ayscue categorized Petitioner’s violation as grossly inefficient job performance. (Transcript p. 397, Petitioner Exhibit 19) Mr. Massey agreed that in his opinion Petitioner’s behavior was grossly inefficient job performance because she had failed to secure the medication cart, which posed a risk of health and safety to both officers and inmates. Tr. 397-398. According to Massey, the risk was life threatening. (Transcript p. 398) Following Ms. Ayscue’s investigation, Mr. Massey conducted a pre-disciplinary conference with Petitioner on August 22, 2011, and subsequently recommended that Petitioner be dismissed from employment. (Transcript pp. 399, 401-403, Respondent Exhibit 25) Following the pre-disciplinary conference with Petitioner and while his recommendation was under review, Mr. Massey was informed that Ms. Ayscue had not collected witness statements from witnesses she interviewed but relied on the statements they had previously supplied. (Transcript pp. 404-405) Mr. Massey felt that Ms. Ayscue’s investigation was not satisfactory. He contacted Mr. Grimes and requested that another investigation be conducted. (Transcript pp. 405) Once it became apparent to Mr. Massey that the second investigation would not be completed within 30 days of placing Petitioner on investigation, Petitioner was allowed to return to work. (Transcript pp. 405-406) On August 16, 2011, Superintendent Massey sent Regional Director Randall Lee a file which included the investigation report submitted by Ms. Ayscue and Mr. Massey’s request to conduct a pre-disciplinary conference with Petitioner. (Petitioner’ Exhibit 24, Transcript pp. 411-415) Regional Director Lee approved Mr. Massey’s request and also instructed him to “do some type of action on the CO’s,” meaning Corrections Officers Boddie and Boone. (Id.) In conducting the second investigation, Mr. Grimes obtained written statements on September 7, 2011 from the following individuals: Lead Nurse Aundrea Alston, Correctional Officer Boddie, Correctional Officer Boone, and Petitioner (Respondent’s Exhibits 14, 18, 20, 22) He submitted a written investigative report to Mr. Massey on that same date. Mr. Grimes did not review Ms. Ayscue’s report nor did he review the written statements that were obtained by the OIC on the date of the incident. (Transcript pp. 157-161) At the contested case hearing in this matter, Mr. Grimes acknowledged statements are more likely to be true if such statements are taken closer in time to the event. (Transcript p. 167) Mr. Grimes also admitted that it may have been a mistake for him not to review the prior statements that been provided on August 11, 2011, the date of the incident in question. (Id.) He made no comparison of the various statements to check for inconsistent statements or a change in anyone’s account of the events. Following Mr. Grimes investigation, Mr. Massey was informed of Mr. Grimes’ conclusion that Petitioner violated Respondent’s policy and procedures by failing to secure the medication cart. (Transcript p. 407, Respondent Exhibit 14) Superintendent Massey conducted a second pre-disciplinary conference with Petitioner on September 15, 2011. (Respondent’s Exhibit 10, Transcript pp. 409-410) Superintendent Massey subsequently recommended that Petitioner be dismissed from employment for grossly inefficient job performance. (Transcript p. 413) Such recommendation was approved and Petitioner was informed of her dismissal effective September 27, 2011. (Respondent’s Exhibit 11, Transcript pp. 413-414) The dismissal letter that was given to Petitioner on September 27, 2011 stated that Petitioner’s failure to lock the medication cart on August 11, 2011 created the potential for a serious health risk to inmates and constituted grossly inefficient job performance. (Respondent’s Exhibit 11) The dismissal letter also reference two previous written warnings that were issued to Petitioner. (Respondent’s Exhibit 11) Petitioner was issued a written warning on June 7, 2010 for failing to follow established medical protocol. (Respondent’s Exhibit 12) She was also issued a written warning on October 22, 2010 for reporting to work earlier than her scheduled shift. (Respondent’s Exhibit 11, Transcript pp. 66-67) With respect to the events that led to the June 7, 2010 written warning, Petitioner forgot to document that she had given medication to an inmate. (Transcript p. 435) She also did not assess an inmate because the inmate was already scheduled to see a doctor later that week. (Transcript pp. 435-436) With respect to the events that led to the October 22, 2010 written warning, Petitioner typically would arrive at work early because she did not wish to be late; however she would at times leave home as much as three hours early. (Transcript, pp. 436-437) When she arrived at work, she would wait in her car or the lobby until her shift was scheduled to begin. (Transcript p. 437) Her early arrival created a risk of liability for Respondent, and she was cautioned about early arrival several times. Correctional Officers Boddie and Boone were issued a “coaching” as a result of the August 11, 2011 incident. (Transcript pp. 298, 345-346, 425) Both officers were coached because they failed to properly restrain the inmates in the clinic and failed to strip search inmates prior to those inmates entering the clinic which was not even their respective duties. (Transcript pp. 371-372) The coaching did not address the security issues raised by Ayscue’s report. (Petitioner’s Exhibit 19) At the time Correctional Officer Boone received his coaching, he was told “you got to get something.” (Transcript p. 344) Since receiving the coaching, Correctional Officer Boone has been promoted to Sergeant. (Transcript p. 303) The credible evidence is that an inmate reached into the clinic and removed the medications from the cart while the inmate inside the clinic was either physically ill or pretending to be physically ill. A correctional officer should have been responsible for the inmates outside the clinic. The evidence indicates that if indeed any inmates were in that area then Officer Boone would have been responsible for them. There is no evidence that Officer Boone had an inmate inside the clinic. Even if the medication was taken while Petitioner was at the segregation unit, some corrections officer had to have been responsible for any inmate in that area. Based upon the evidence produced at this hearing there should have been more punishment administered to the corrections officers than the “coaching” which appears to have been nothing more than a sham so that it could be said that the corrections officers were “punished” because medication was missing. This is borne out by the fact that Officer Boone has been promoted. It must be noted that the correctional officers were not the subject of this hearing and a full evidentiary hearing was not held on their culpability. Although this contested case hearing is not about the punishment for the corrections officers, it is germane to this case in determining whether or not the punishment given to Petitioner was appropriate in light of all facts and circumstances. Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge CONCLUSIONS OF LAW
The parties are properly before the Office of Administrative Hearings and received proper notice of the hearing in this matter. This office has both subject matter and personal jurisdiction to hear this contested case. At the time of her dismissal from employment, Petitioner was a career state employee and thus was entitled to the protections of the North Carolina State Personnel Act and the administrative regulations promulgated pursuant to said Act. North Carolina General Statute (hereinafter NCGS) § 126-35(a), in pertinent part, No career State employee subject to the State Personnel Act shall be discharged…except for just cause. In cases of such disciplinary action, the employee shall, before the action is taken, be furnished with a statement in writing setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employees appeal rights. 4. Pursuant to NCGS § 126-35(d), Respondent has the burden of showing that Petitioner was discharged for just cause. Both 25 N.C.A.C. 01I.2301 and 25 N.C.A.C. 01J.0604(b) provide: There are two bases for the discipline or dismissal of employees under the statutory standard for “just cause” as set out in G.S. 126-35. These two bases are: (1) Discipline or dismissal imposed on the basis of unsatisfactory job performance, including grossly inefficient job performance. (2) Discipline or dismissal imposed on the basis of unacceptable personal Dismissal on the basis of grossly inefficient job performance is administered in the same manner as for unacceptable personal conduct. Employees may be dismissed on the basis of a current incident of grossly inefficient job performance without any prior disciplinary action. 25 N.C.A.C. 01J.0614(h) defines Gross Inefficiency (Grossly Inefficient Job unsatisfactory job performance that occurs in instances in which the employee: fails to satisfactorily perform job assignments as specified in the relevant job description, work plan, or as directed by the management of the work unit or agency; and, that failure results in: 1) the creation of the potential for death or serious bodily injury to an employee(s) or to member of the public or to a person(s) over whom the employee has responsibility; or 2) the loss of or damage to state property or funds that result in a serious impact on the State and/or work unit. The North Carolina Supreme Court addressed the question of whether violation of a state law justified an employee’s demotion in N.C. Department of Environment and Natural Resources v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004). The Supreme Court noted that the fundamental question in a case brought under N.C.G.S. § 126-35 is whether the disciplinary action taken was “just.” Carroll, 599 S.E.2d at 900. The Supreme Court further” stated that “just cause” is a flexible concept, embodying notions of equity and fairness, which can only be determined upon an examination of the facts and circumstances of each individual case. Id. In Warren v. North Carolina Department of Crime Control and Public Safety, COA11-884, ___ N.C. App. ___, _726 S.E.2d 920 (2012), the North Carolina Court of Appeals interpreted Carroll to mean that not every instance of unacceptable personal conduct as defined by the North Carolina Administrative Code provides just cause for discipline. Both Carroll and Warren involved state employees who had been disciplined for engaging in unacceptable personal conduct. Both Carroll and Warren should also apply to cases involving grossly inefficient job performance, and to this contested case in particular. As such, the crucial issue in this case is whether Petitioner’s actions on August 11, 2011 amounted to just cause for the disciplinary action taken. Petitioner concedes that she should have locked the medication cart and that she failed to lock the medication cart on August 11, 2011, resulting in medications being taken from the cart by inmates. Petitioner contends that the circumstances surrounding the August 11, 2011 incident and the subsequent investigation of said incident did not constitute just cause for her dismissal from career state employment. On August 11, 2011, no nursing staff member was assigned to assist Petitioner in the clinic. That was not unusual and Petitioner had worked the satellite clinic many times before without the assistance of any additional staff. Two correctional officers were in the satellite clinic with Petitioner at the time the medication was apparently taken from the medication cart. Two officers should not have been inside the clinic at the same time. Apparently, inmates were milling around outside the clinic otherwise the medications could not have been taken by an inmate. Had the inmates outside the clinic been properly supervised as provided by Respondent’s policy and procedure, the medication most likely would not have been taken. The only conclusion that can be drawn is that a correctional officer was derelict in his or her duties. However, the two officers present were only given a “coaching” and one was subsequently promoted. While the correctional officer may or may not have been appropriately punished, that is not determinative of the case at bar. The issue here is the sufficiency of the punishment administered to this Petitioner. There is no question that the correctional officers were not responsible for the medication cart. That was the duty of Petitioner and she admits responsibility for the loss of the medication. The investigations that were conducted by Nurse Ayscue and Supervisor Grimes were flawed. However, it is not disputed that Petitioner was responsible for the medication cart and that she left it unattended and unlocked and that medications were taken from the cart while she was responsible. At the time of this incident, Petitioner had two active written warnings. She had received poor job evaluations and she had been counseled about deficiencies in performance of her job duties. Dismissal for grossly inefficient job performance may be for one incident alone and does not require any prior disciplinary actions against the employee. There is credible evidence that Petitioner was attempting to do too many things at one time, and that such was often the case when she worked the satellite clinic. Despite any failings by the correctional officers, the duty to maintain the integrity of the medication cart was Petitioner’s alone. She failed in the performance of that duty, which created the potential for death or serious bodily injury to the inmates, people for whom she had responsibility, as well as the potential for danger and harm to the staff of the institution. Applying the “commensurate discipline” test of Warren to the facts and circumstances of this contested case it is concluded that the misconduct of Petitioner does indeed amount to “just cause” for the disciplinary action taken, i.e., her dismissal. Respondent met its burden of proof and showed by the preponderance of credible evidence that Respondent had just cause to dismiss Petitioner from employment for grossly inefficient job performance. DECISION
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that Respondent’s decision to dismiss Petitioner should be and hereby is
AFFIRMED.
Pursuant to N.C. Gen. Stat. § 150B-45, any party wishing to appeal the undersigned’s decision may commence such an appeal by filing a Petition for Judicial Review in the Superior Court of Wake County or in the Superior Court of the county in which the party resides. The appealing party must file the petition within 30 days after being served with a written copy of the Administrative Law Judge’s Decision and Order. In conformity with 26 N.C.A.C. 03.012, this Decision and Order was served on the parties the date it was placed in the mail as indicated by the date on the attached Certificate of Service. N.C.G.S. §150B-46 describes the contents of the petition and requires service of the petition on all parties. Pursuant to N.C. Gen. Stat. § 150B-47, the Office of Administrative Hearings is required to file the official record in the contested case with the Clerk of Superior Court within 30 days of receipt of the Petition for Judicial Review. Consequently, a copy of the Petition for Judicial Review must be sent to the Office of Administrative hearings at the time the appeal is initiated in order to ensure the timely filing of the record.

Source: http://www.ncoah.com/hearings/decisions/osp/12%20OSP%2000246.pdf

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