Opinion
No. COA15-624
09-06-2016
JACQUELINE CLARK, Petitioner v. NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Respondent
Law Offices of Michael C. Byrne, by Michael C. Byrne, for petitioner-appellee. Attorney General Roy Cooper, by Assistant Attorney General Tamika L. Henderson, for respondent-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Office of Administrative Hearings, No. 14 OSP 05446 Appeal by respondent from the Final Decision and Order entered 5 March 2015 by Administrative Law Judge Augustus B. Elkins, II, in the Office of Administrative Hearings. Heard in the Court of Appeals 2 December 2015. Law Offices of Michael C. Byrne, by Michael C. Byrne, for petitioner-appellee. Attorney General Roy Cooper, by Assistant Attorney General Tamika L. Henderson, for respondent-appellant. CALABRIA, Judge.
The appeal from this Final Decision and Order was a consequence of the 12 March 2014 death of Michael Kerr ("Kerr"), an inmate housed in solitary confinement at Alexander Correctional Institute ("ACI"). Shawn Blackburn ("Blackburn"), the officer in charge of ACI, ordered that Kerr remain restrained in handcuffs in his cell until he came to the door to have the handcuffs removed. Blackburn also ordered that Kerr's diet be restricted to nutraloaf, a foodstuff used for disciplinary purposes, and that he not be provided any milk because Kerr had used milk cartons to clog the toilet in his cell. Kerr, who was mentally ill and medically obese, remained lying on his bed, restrained in handcuffs for five days. The coroner determined that Kerr died from dehydration.
The North Carolina Department of Public Safety ("DPS") terminated Blackburn from his employment, as did the Administrative Law Judge ("ALJ") who presided over a contested case hearing, and this Court upheld his termination on appeal. See Blackburn v. N.C. Dep't of Pub. Safety, ___ N.C. App. ___, 784 S.E.2d 509 (2015), disc. rev. denied, ___ N.C. ___, 786 S.E.2d 915 (2016). Our opinion in Blackburn stressed that Blackburn was directly responsible for supervising the care of inmates, that Blackburn had personally ordered that Kerr be subjected to the conditions that ultimately led to his death, and that Blackburn had previously been disciplined by DPS.
The instant case involves the termination of Jacqueline Clark ("Clark"), who was employed as a supervisory nurse at ACI at the time of Kerr's death. DPS terminated Clark following an internal investigation into Kerr's death. After a contested case hearing lasting multiple days, ALJ Augustus B. Elkins, II, reversed DPS's decision to terminate Clark and reinstated her to her former position at ACI. DPS appeals the ALJ's decision.
On appeal, DPS contends that the ALJ erred by considering evidence that was not presented to DPS at the time of its initial dismissal decision, by making certain findings of fact that were not supported by the evidence, and by concluding that DPS failed to establish just cause to terminate Clark. We affirm.
I. Background
Clark, a career State employee who formerly worked as a travel nurse with DPS at Foothills Correctional Institution, was promoted to the position of a lead nurse and transferred to ACI in October 2011. In August 2012, Clark was promoted to Nurse Supervisor I ("Nurse I") at ACI. In 2013, DPS created a new position at ACI, Nurse Supervisor III ("Nurse III"), which was intended to be the highest nursing authority at ACI and a primarily administrative role as opposed to a direct care position. On 6 January 2014, Clark was promoted to Nurse III and, because positions were vacant, she became responsible for supervising all 74 employees of ACI's nursing staff. As Nurse III, Clark's responsibilities were to provide "major administrative oversight and direct supervision of the facility nursing staff to include clinical and administrative consultation and assure[ ] nursing coverage 24/7 within the facility" and to provide "administrative duties such as dealing with employee issues, planning, organizing and managing daily operations, quality assurance, human resource management and staff development and training to retain a diverse workforce." Although Nurse III was a new position at ACI with different duties than Nurse I, Clark never received the additional training that her supervisors promised would accompany her promotion.
The reporting chain for Nurse III at ACI was two-dimensional. Clark reported directly to prison administration and also to DPS regional management for medical issues. For medical issues, Clark reported to two off-site regional managers, Deirdre Epley ("Epley"), the Regional Health Treatment Administrator, and Sheila Green ("Green"), a Regional Nurse Supervisor, acting as Assistant Director of Nursing. The subordinate nursing positions below Nurse III were intended to be two Nurse I positions that reported directly to the Nurse III.
The Nurse I position directly supervised the lead nurses, the chronic disease nurses, the clinicians, and the medical records staff and provided "direct coverage over the individual shifts, and . . . on-shift guidance at the times medical events occur." The lead nurses directly supervised staff nurses and implemented direct care. Lead nurses' clinical duties were to ensure patients' physical and mental health were managed and properly recorded. Lead nurses' supervisory duties included the "daily supervision of work performance, attendance monitoring, delegating responsibilities, coaching and counseling, and evaluation of training needs." Staff nurses supported lead nurses by performing functions such as drawing blood, treating inmate emergencies, responding to sick calls, and approving nutraloaf requests, among other tasks.
Although this was the intended hierarchical structure, when Clark was promoted to Nurse III, there was a nursing shortage at ACI, which became exacerbated when twenty additional beds were added requiring increased nursing coverage. Additionally, the two Nurse I positions intended to report directly to the Nurse III remained vacant from the time Clark was promoted until after Kerr's death.
Following an investigation into Kerr's death on 12 March 2014, Clark was identified as one of several medical and custody staff recommended for disciplinary action. After a pre-disciplinary conference, Clark received a dismissal letter dated 7 April 2014 stating that she had been terminated for "unacceptable personal conduct and grossly inefficient job performance." The dismissal letter explained that Clark's termination was based upon the following:
1. Clark's failure to ensure that Wanda St. Clair, a staff nurse ("Nurse St. Clair"), complied with medical policy. On 12 March 2014, when preparing Kerr for transport from ACI to Central Prison, custody staff noticed lacerations on Kerr's handcuffed wrists and contacted nursing for an assessment. Nurse St. Clair responded. Rather than assessing Kerr, she replied that she was "busy" and provided bandages to custody staff.
2. Clark's failure to ensure that Brenda Sigmon, a staff nurse ("Nurse Sigmon"), documented her assessment of Kerr after responding to a "code blue," a type of medical emergency initiated by custody staff, and Clark's failure to ensure that Kerr was reassessed after the incident. After the code blue was called on Kerr on 8 March 2014, Nurse Sigmon responded but failed to document her assessment of Kerr.
3. Clark's failure to document in Kerr's medical record that she approved him for nutraloaf, and her failure to ensure a subordinate nurse to whom she delegated Kerr's assessment actually completed that assessment. On 24 February 2014, Clark responded to a request by custody
staff to put Kerr on nutraloaf for disciplinary reasons. Clark consulted with a segregation nurse, reviewed Kerr's medical jacket, and delegated the taking of Kerr's vital signs and physical assessment to a subordinate nurse prior to giving her approval of Kerr's first nutraloaf issuance. Clark documented her approval in the Offender Population Unified System ("OPUS") but failed to document her chart review and nutraloaf approval in Kerr's medical record and failed to ensure Kerr's vital signs and physical assessment were taken.
4. Clark's failure to ensure that medical staff performed daily checks on Kerr while he was housed in segregation.
5. Clark's failure to ensure that Kimberly Tallery, a chronic disease nurse ("Nurse Tallery"), knew how to enter data and use a tracking system for managing patients in the Chronic Disease Clinic. On 6 December 2012, Kerr was placed into the Chronic Disease Clinic for hypertension and was supposed to be seen every six months. However, Nurse Tallery's failure to properly use the tracking system resulted in Kerr not being treated every six months for his chronic disease.
6. Clark's general failure to personally review and follow up on specific documentation completed by subordinate nurses to ensure their compliance with policy.
Clark appealed her dismissal to the DPS Employee Advisory Committee. After a hearing, Clark received a letter dated 11 July 2014 from W. David Guice, DPS Commissioner, affirming her dismissal. Subsequently, Clark filed a petition alleging she was discharged without just cause. After a contested case hearing with the Office of Administrative Hearings was held on 22, 23, 24, and 27 October 2014, the ALJ issued a final agency decision on 5 March 2015, reversing Clark's dismissal and reinstating her as Nurse III at ACI. The ALJ found that even if Clark had violated certain regulations, there was no evidence that Clark's actions or omissions resulted in Kerr's death or created conditions that increased the likelihood of serious injury or death. Moreover, the ALJ found that since she was promoted to Nurse III, Clark faced employment challenges, including: understaffing, lack of training, and failure of her supervisors to respond to Clark's concerns or communicate them to others. The ALJ determined that DPS "failed to carry its burden of proof by a greater weight of the evidence that there was just cause to dismiss [Clark] on the grounds set forth in the dismissal letter" and concluded that, on balance, just cause did not exist to terminate Clark. The ALJ's decision reversed Clark's dismissal and she as reinstated was Nurse III. DPS appeals.
II. Standard of Review
" 'On judicial review of an administrative agency's final decision, the substantive nature of each assignment of error dictates the standard of review.' " Wetherington v. N.C. Dep't of Pub. Safety, 368 N.C. 583, 590, 780 S.E.2d 543, 546 (2015) (quoting N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004)). "[W]e review questions of law de novo and questions of fact under the whole record test." Diaz v. Div. of Soc. Servs., 360 N.C. 384, 386, 628 S.E.2d 1, 2 (2006).
III. Analysis
A. Additional Evidence Presented to ALJ
As an initial matter, DPS contends the ALJ erred by considering evidence that had not been presented when DPS made its decision to dismiss Clark. DPS asks this Court to provide guidance as to whether, when reviewing an agency's disciplinary decision under the just cause standard, an ALJ is limited to the facts and circumstances presented to the agency at the time the disciplinary decision was made.
During a contested case hearing, "[t]he [ALJ] may admit all evidence that has probative value. Irrelevant, incompetent, and immaterial or unduly repetitious evidence shall be excluded." 25 N.C. Admin. Code 03.0122(1) (emphasis added). There is no regulation in the context of contested employment discipline cases prohibiting an ALJ from considering evidence not presented to the agency before issuing its disciplinary decision.
Moreover, N.C. Gen. Stat. § 150B-22 (2015) provides that:
It is the policy of this State that any dispute between an agency and another person that involves the person's rights, duties, or privileges, including licensing or the levy of a monetary penalty, should be settled through informal procedures. In trying to reach a settlement through informal procedures, the agency may not conduct a proceeding at which sworn testimony is taken and witnesses may be cross-examined. If the agency and the other person do not agree to a resolution of the dispute through informal procedures, either the agency or the person may commence an administrative proceeding to determine the person's rights, duties, or privileges, at which time the dispute becomes a "contested case."Given that the agency is prohibited from conducting "a proceeding at which sworn testimony is taken and witnesses may be cross-examined," we conclude that the informal proceedings that occur prior to initiation of a "contested case" do not include the taking of "evidence" as the term is generally used. Furthermore, this Court held in Robinson v. N.C. Dep't of Health & Human Servs., 215 N.C. App. 372, 378, 715 S.E.2d 569, 572 (2011), that, in the absence of a rule or regulation to the contrary, the ALJ may consider evidence not offered to the agency. The holding of Robinson was based upon the provisions of N.C. Gen. Stat. § 150B-34 and several administrative rules.
DPS cites Stark v. N.C. Dep't of Env't & Nat. Res., 224 N.C. App. 491, 736 S.E.2d 553 (2012), in support of its argument, based on reference to policy considerations mentioned in dicta in both Robinson and Stark. The excerpts from Robinson and Stark that are cited by DPS do not constitute a part of the holding of either case.
B. Challenges to ALJ's Findings of Fact
DPS next challenges the evidentiary support of several findings. Specifically, DPS challenges findings of fact ("FOF") nos. 5, 16, 18, 21, 24, 29, 30, 34, 44, 52, 56, 69, 71, and 76. However, as previously discussed, the bases for Clark's dismissal were her (1) failure to monitor Nurse St. Clair's compliance with medical policy; (2) failure to ensure Nurse Sigmon documented her assessment of Kerr after the code blue and followed up with a reassessment of Kerr; (3) failure to document in Kerr's medical record that she approved his first Nutraloaf issuance; (4) failure to ensure that medical staff performed requisite daily checks; (5) failure to ensure that Nurse Tallery knew how to use a tracking system for inmates with chronic diseases; and (6) a general failure to ensure specific documentation was completed by subordinate nurses.
After a careful review of the record and the ALJ's order, we conclude that only those challenged findings material to the ALJ's decision need to be addressed. See Blackburn, ___ N.C. App. ___, 784 S.E.2d at 519 (concluding that "it is not necessary for us to assess the evidentiary support for all of the findings challenged by petitioner[,]" and reviewing only those findings material to the ALJ's decision). We conclude that those findings that are not supported by the evidence, in whole or in part, may be disregarded without changing the outcome of this case.
We review a challenge to the ALJ's findings to determine whether the findings are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Even if the record contains evidence that could also support a contrary finding, we may not substitute our judgment for that of the ALJ and must affirm if there is substantial evidence supporting the ALJ's findings.Blackburn, ___ N.C. App. at ___, 784 S.E.2d at 520 (quoting Total Renal Care of N.C. v. N.C. Dep't of Health and Human Servs., ___ N.C. App. ___, ___, 776 S.E.2d 322, 328 (2015)) (quotation marks and additional citation omitted). Unchallenged findings are binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
DPS challenges part of FOF no. 18: "The Nurse Supervisor I position (two of which were supposed to report directly to [Clark] in her new role), directly supervised the lead nurses, the chronic disease nurses, the clinicians, and the medical records staff." George Solomon, DPS Director of Prisons ("Director Solomon"), testified that the nurses involved in the incidents surrounding Kerr's death would have been directly supervised by a Nurse I if the positions had been filled. DPS argues that the evidence established that because the Nurse I positions were vacant, all nursing staff reported directly to Clark. Although Clark became the de facto supervisor of all nursing staff due to the vacant Nurse I positions, this finding does not contradict that understanding but rather states the general duties of a Nurse I. There is sufficient evidence to support this finding.
Next, DPS argues that FOF no. 21 is unsupported by the evidence:
21. [Clark] made various efforts as a Nurse Supervisor III to address documentation issues, as noted in the nursing meeting minutes. These minutes were, per standard procedure, forwarded to . . . Epley and . . . Green. There was no evidence presented of concern on the part of DPS management regarding [Clark's] efforts to address documentation issues prior to the events that led to [Clark's] dismissal. [Faye Duffin, Director of Nursing for the Division of Adult Corrections, ("Duffin")] testified that it would have been Green and Epley's responsibility to assist [Clark] with the staffing shortage issues at [ACI]. Epley and Green failed to forward the understaffing reports to Duffin herself, per her testimony.
According to Director Solomon's testimony, Clark stated during the investigation that she had not made any changes to improve documentation issues. However, the dismissal letter Clark received regarding the final agency decision and the nursing meeting minutes both support the finding that Clark did attempt to address documentation issues and provided subordinate nurses with "nurse protocol pocket guides" to assist with documentation. Duffin testified that Epley and Green received nursing minutes every week and should have forwarded them to her, but did not. While there is some conflicting evidence, we may not substitute our judgment for that of the ALJ. This finding is supported by substantial evidence.
DPS also challenges FOF no. 44: "Leach did not testify that any of Clark's actions regarding the [n]utraloaf issuance caused or resulted in death or serious bodily injury to Kerr or created conditions that increased the chance for death or serious bodily injury to Kerr." Stephanie Leach ("Leach"), a licensed registered nurse and the Risk Manager for DPS who conducted an investigation into Kerr's death, testified generally that the failure to properly document can create the potential for death or serious bodily injury. Duffin also testified that failing to properly document nursing notes could "result in the potential for the inmate not getting proper health care services and that could include death—up to and including death." However, neither she nor Leach testified that Clark's actions personally created the potential for Kerr's death or serious bodily injury. Therefore, we conclude there was sufficient evidence to support this finding.
DPS next challenges FOF no. 69:
69. The policy at issue, and cited in the dismissal letter, is
the DPS Health Services Policy VII-5. The policy states that "in the event of a real emergency, the completed emergency response note becomes part of the patient's chart.". . . The medical staff who responded appeared to conclude that there was no emergency upon responding to the code blue call and cleared Kerr. Leach conceded that nothing in the policy requires documentation of non-emergency situations, but only in the event of a real emergency.Leach stated that the Basic Documentation Policy required documentation any time a nurse encountered a patient, whether during an emergency or not. However, Clark was not cited with violating that policy for this particular allegation in her dismissal letter. Accordingly, Leach's testimony supports the finding that the DPS Health Services Policy VII-5 does not require documentation in the event there is no real emergency, although such documentation may be required by a different policy. Therefore, we overrule this challenge.
DPS also challenges FOF no. 71:
71. The [segregation] checks by nursing staff would be to see if the inmate had concerns and that they were talking and moving. The evidence demonstrated that [the] checks referred to [were] documented at [ACI] in the ERTS [Electronic Rounds Tracking System] custody staff logs. Neither [Director Solomon] nor Leach consulted these logs, or the OPUS record, in making their reports.Specifically, DPS challenges that portion of the finding that Leach failed to consult ERTS and OPUS in making her report. On the front page of Leach's report, under the section entitled "Sources of Information," OPUS was included but ERTS was not. However, during Leach's confidential testimony before the ALJ, she stated that she had consulted both OPUS and the ERTS logs in making her report. Regardless of whether there is substantial evidence supporting that portion of the finding that Leach failed to consider ERTS in making her report, DPS advances no argument as to why this portion of the finding is of any consequence, and our careful review of the record discloses none.
The policy cited in Clark's dismissal letter provided that "inmates in segregation will receive daily visits from trained health care staff." The allegation against Clark was that she failed to ensure that medical staff completed these required daily segregation checks on Kerr, on the basis that "the medical record for Inmate Kerr does not document visits by medical staff while he was housed in segregation." However, DPS presented no evidence indicating that the nurses were required to document these routine checks. Rather, the ALJ's unchallenged FOF no. 64 established that "medical checks on Kerr were documented by the custody staff through the ERTS system." In addition, according uncontested FOF no. 64, "[u]nder policy, it is the job of custody staff to monitor Kerr's food and drink intake and refusal of [the] same." (emphasis added] Regardless of whether Leach consulted ERTS in making her report and whether the ERTS logs consistently document the daily medical segregation checks, DPS has failed to prove that the nurses never completed their daily checks on Kerr as required by policy and now fails to advance any argument regarding this particular violation on appeal. See N.C.R. App. P. 28(b)(6) ("Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.").
Lastly, we address DPS's challenge to FOF no. 76:
76. Little if any evidence was offered on [the violation by Nurse Tallery of the chronic disease policy] by DPS at hearing. As previously found, the only specific violation of the Chronic Disease Policy testified to by DPS witnesses occurred in 2012, before [Clark] was selected for the Nurse Supervisor III role.Leach testified that she found during her investigation that the nurses at ACI failed to follow the Chronic Disease Policy. She identified a specific violation in 2012, before Clark became Nurse III. However, Director Solomon testified that the chronic disease nurse failed to ensure that Kerr had regular appointments, in violation of the Chronic Disease Policy. The last recorded chronic disease appointment occurred in December 2012 and follow-up appointments should have occurred every subsequent six months. Therefore, DPS did present evidence of violations other than the one that occurred in 2012, but because Clark was promoted in January 2014, no violations of the six-month follow-up policy occurred after she was promoted to Nurse III until Kerr's death.
Based on our review of the record, we conclude that substantial evidence was presented to support the material findings of fact challenged by DPS. Although certain portions of FOF nos. 71 and 76 are unsupported by the evidence, we conclude that the portions of these findings may be disregarded without affecting the disposition of this case. Therefore, we overrule DPS's challenges.
C. Just Cause
DPS next contends that the ALJ erred by concluding that it failed to present sufficient evidence of "unacceptable personal conduct" or "grossly inefficient job performance" constituting "just cause" to dismiss Clark pursuant to N.C. Gen. Stat. § 126-35 (2015). We disagree.
We review de novo whether a public employer had just cause to terminate a career State employee. See, e.g., Carroll, 358 N.C. at 666, 599 S.E.2d at 899. " 'Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the [ALJ].' " Blackburn, ___ N.C. App. at ___, 784 S.E.2d at 518 (alteration in original) (quoting In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
Pursuant to N.C. Gen. Stat. § 126-35(a), "[n]o career State employee . . . shall be discharged . . . for disciplinary reasons, except for just cause." In contested cases, the employer bears "the burden of showing that a career State employee was discharged . . . for just cause[.]" N.C. Gen. Stat. § 126-34.02(d). Just cause for discipline or dismissal may be established on the bases of (1) "unacceptable personal conduct" or (2) "grossly inefficient job performance." 25 N.C. Admin. Code 01J.0604(b). However, under either prong, " 'the fundamental question in a case brought under [N.C. Gen. Stat.] § 126-35 is whether the disciplinary action taken was "just." Inevitably, this inquiry requires an irreducible act of judgment that cannot always be satisfied by the mechanical application of rules and regulations.' " Wetherington, 368 N.C. at 591, 780 S.E.2d at 547 (quoting Carroll, 358 N.C. at 669, 599 S.E.2d at 900). Because just cause " 'is a flexible concept, embodying notions of equity and fairness,' " its existence must be determined based on the facts and circumstances of each case. Id. at 591, 780 S.E.2d at 547 (quoting Carroll, 358 N.C. at 669, 599 S.E.2d at 900-01).
1. Grossly Inefficient Job Performance
DPS contends that the ALJ erred by concluding that it failed to establish just cause to terminate Clark based upon grossly inefficient job performance. We disagree.
"Grossly inefficient job performance" exists when an employee
fails to satisfactorily perform job requirements as specified in the job description, work plan, or as directed by the management of the work unit or agency; and, that failure results in . . . the creation of the potential for death or serious bodily injury to . . . a person[] over whom the employee has responsibility[.] . . .25 N.C. Admin. Code 01J.0614(5). "[T]he regulation only requires the creation of the potential for death or serious bodily injury and does not require that actual death or serious bodily injury result." N.C. Dep't of Corr. v. McKimmey, 149 N.C. App. 605, 609, 561 S.E.2d 340, 343 (2002). Additionally, "it must . . . logically follow that if [petitioner] had [avoided the cited conduct], the [agency] would have acted in some manner that would have stayed the creation of the potential for death or serious bodily injury." Id. at 612, 561 S.E.2d at 344.
First, DPS contends the ALJ "erred as a matter of law when he concluded that DPS was required to make an evidentiary connection between Clark's actions and the death of Kerr." We disagree.
Pursuant to N.C. Gen. Stat. § 126-34.02(d), "the burden of showing that a career State employee was discharged . . . for just cause rests with the employer. . . ." The plain language of 25 N.C. Admin. Code 01J.0614 requires unambiguously that to discipline an employee for just cause based upon "grossly inefficient job performance," the employer must show both that (1) the employee failed to satisfactorily perform job requirements, and (2) this failure resulted in the creation of the potential for death or serious bodily injury.
As previously stated, the reasons stated in Clark's dismissal letter were based on allegations that she (1) failed to monitor Nurse St. Clair's compliance with medical policy; (2) failed to ensure Nurse Sigmon documented her assessment of Kerr after responding to the code blue and followed up with a reassessment of Kerr; (3) failed to document in Kerr's medical record that Clark approved Kerr's first nutraloaf issuance; (4) failed to ensure medical staff performed requisite daily checks; (5) failed to ensure that Nurse Tallery knew how to use a tracking system for inmates with chronic diseases; and (6) generally failed to ensure specific documentation was completed by subordinate nurses. However, DPS has failed to establish that Clark's actions or omissions created the potential for serious injury or death. DPS argues, for example, that the failure to properly document a patient's medical condition may lead to serious injury in particular factual situations. However, no evidence was presented that Clark's specific failure to document her approval, in February 2014, of Kerr's placement on nutraloaf contributed to his death several weeks later. Because DPS failed to meet its burden to establish a causal connection between Clark's cited conduct and Kerr's death, we overrule this challenge.
Next, DPS contends that "[t]he ALJ erroneously concluded that DPS needed to demonstrate that Clark violated DPS policy in order for DPS to dismiss her for [g]rossly [i]nefficient [j]ob [p]erformance." We disagree.
In support of its argument, DPS points to the ALJ's conclusion of law ("COL") no. 14, which states:
14. With respect to the policy violations cited, the weight of the evidence fails to show [Clark's] violation of the policies named by [DPS] in the dismissal letter. The evidence does not establish a violation of the Assessment of Patient Policy as that violation is premised on the absence of medical staff segregation checks in the inmate medical records. The records of custody staff, where the checks would be recorded, were not reviewed by the investigator, [Director Solomon], on whose report this allegation was based. The evidence also does not establish a violation of the Chronic Disease Policy by [Clark]. As noted, no Chronic Disease Policy violation was established that occurred during the time when [Clark] served as a Nurse Supervisor III. Lastly the weight of the evidence does not establish a violation of the policy regarding emergency response documentation as it is connected to [Clark].
It is true that an agency need not prove a policy violation in order to dismiss an employee for grossly inefficient job performance. See 25 N.C. Admin. Code 01J.0614(5) (explaining that grossly inefficient job performance occurs, in part, when an employee "fails to satisfactorily perform job requirements as specified in the job description, work plan, or as directed by the management of the work unit or agency"). However, there is no indication in the ALJ's order that his COL no. 14 related to his analysis under the categories of "grossly inefficient job performance" or "unacceptable work conduct." Indeed, the ALJ's COL no. 12 explained that "[c]ases involving unacceptable personal conduct require a multi-step analysis[,]" including "whether the employee engaged in the conduct the employer alleges." Because DPS contended that Clark's violation of these policies established just cause to terminate her, the ALJ properly considered these alleged policy violations when determining whether just cause existed under the category of "unacceptable work conduct." Therefore, we overrule DPS's challenge.
Finally, DPS contends that the ALJ erred by concluding it failed to establish just cause to terminate Clark. However, because the "just cause analysis" is the same under either prong, we reserve assessment of this argument until we discuss just cause on the grounds of unacceptable personal conduct.
2. Unacceptable Personal Conduct
DPS next contends that even if Clark's conduct did not rise to the level of grossly inefficient job performance, it constituted "unacceptable personal conduct," another basis for dismissal for just cause. We disagree.
First, DPS contends that "[t]he ALJ erroneously concluded that Clark's conduct was not willful but rather neglectful." The substantive nature of this assignment of error is that DPS was "prejudiced because the findings, inferences, conclusions, or decisions [were] . . . [a]ffected by other error of law," see N.C. Gen. Stat. § 150B-51(b)(4), which we review de novo on appeal.
"Unacceptable personal conduct" includes "the willful violation of known or written work rules[.]" 25 N.C. Admin. Code 01J.0614(8)(d). "[A] willful violation of known or written work rules occurs when an employee 'willfully takes action which violates the rule and does not require that the employee intend [the] conduct to violate the work rule.' " Teague v. N.C. Dep't. of Transp., 177 N.C. App. 215, 222, 628 S.E.2d 395, 400 (2006) (alteration in original) (quoting Hilliard v. N.C. Dep't of Corr., 173 N.C. App. 594, 597, 620 S.E.2d 14, 17 (2005)).
In the instant case, the ALJ made the following pertinent conclusions:
19. [Clark] admitted her oversights with respect to ensuring that the first [n]utraloaf issuance was properly documented in the inmate's medical record. While not directly attributing this to the [n]utraloaf issue, the dismissal letter does assert that [Clark's] actions generally constituted "willful violations of known or written work rules."
20. The [ALJ] does not conclude that [Clark] should not
have approved the [n]utraloaf request (there is no evidence that approval of the request was medical or professional error) or that [Clark] failed to consult the medical record and do the other obligations required prior to such approval. [Clark] did fail to properly document in the medical record and failed to ensure that a subordinate, who was delegated the documentation tasks and failed to complete them, actually did not [sic].
21. The [ALJ] does not conclude that [Clark] willfully refused to follow up with the appropriate entries in Kerr's medical record, but that she neglected to do so and admitted that she should have done so.
As Clark admitted that she should have documented her review of Kerr's medical jacket and her approval of Kerr's nutraloaf issuance but did not, her conduct constitutes unacceptable work conduct. See, e.g., Hilliard, 173 N.C. App. at 597, 620 S.E.2d at 17 (2005). Nonetheless, DPS has failed to demonstrate that this erroneous conclusion resulted in prejudice to it, because the ALJ still proceeded to analyze whether just cause existed to terminate Clark on these facts.
Whether just cause exists to impose discipline due to unacceptable personal conduct requires a three-step inquiry. First, a court must "determine whether the employee engaged in the conduct the employer alleges." Warren v. N.C. Dep't of Crime Control & Public Safety, 221 N.C. App. 376, 383, 726 S.E.2d 920, 925 (2012). Next, the court must determine "whether the employee's conduct falls within one of the categories of unacceptable personal conduct provided by the Administrative Code." Id. If so, the court proceeds to determine "whether that misconduct amounted to just cause for the disciplinary action taken." Id. However, "not every instance of unacceptable personal conduct as defined by the Administrative Code provides just cause for discipline." Id. at 382, 726 S.E.2d at 925 (citing Carroll, 358 N.C. at 669, 599 S.E.2d at 901 ("[N]ot every violation of law gives rise to 'just cause' for employee discipline.")). A reviewing court must "balance the equities," id., as " '[j]ust cause' is a 'flexible concept, embodying notions of equity and fairness,' " and its existence must be determined based on the facts and circumstances of each case. Wetherington, 368 N.C. at 591, 780 S.E.2d at 547 (quoting Carroll, 358 N.C. at 669, 599 S.E.2d at 900-01). Moreover, our Supreme Court recently emphasized that consideration of
factors such as the severity of the violation, the subject matter involved, the resulting harm, the [employee's] work history, or discipline imposed in other cases involving similar violations. . . . is an appropriate and necessary component of a decision to impose discipline upon a career State employee for unacceptable personal conduct.Id. at 592, 780 S.E.2d at 548.
In the instant case, the ALJ determined that Clark's actions did not constitute unacceptable personal conduct. This conclusion, however, did not affect his ultimate decision that DPS failed to establish just cause to terminate Clark. The ALJ proceeded with the analysis assuming, arguendo, that Clark's conduct constituted unacceptable personal conduct and considered whether the imposed discipline was just. The ALJ's order states:
[E]ven if [Clark's] action(s) were at some level considered to be some type of unacceptable personal conduct, [Clark's] actions did not constitute just cause for dismissal when the equities in this case are balanced. Those include the
following: 1) [Clark's] substantial, discipline-free employment history with [DPS] as well as her record of good performance in her duties as recorded in her performance reviews; 2) [Clark] had been promoted to Nurse Supervisor III only two months prior to inmate Kerr's death; 3) the position had not previously existed at [ACI] and was primarily an administrative role; 4) two Nurse Supervisor I positions were authorized for [ACI] and designed to directly supervise the lead nurses, the chronic disease nurses, the clinicians, and the medical records staff; 5) Both Nurse Supervisor positions who would have reported directly to [Clark] in her new role were vacant; 6) the nursing staff shortages were known or according to testimony should have been known and addressed by [Clark's] supervisors and were not; and 7) [Clark] was faced with the responsibility of not only carrying out her duties as a Nurse Supervisor III but also provide direct care, staff nurse functions to address a rather large facility.
Even though the ALJ analyzed whether the discipline was just presuming Clark's conduct constituted unacceptable personal conduct, DPS has failed to demonstrate how the ALJ's interpretation was erroneous since the ALJ considered the factors our Supreme Court listed as "appropriate and necessary." Therefore, we overrule DPS's challenge to this issue.
DPS next contends that the ALJ erred as a matter of law by concluding that just cause did not exist to terminate Clark. However, DPS has failed to advance any analysis of the factors "appropriate and necessary" to consider whether just cause existed for this type of discipline. Rather, DPS contends that Clark's conduct directly "led to inadequate healthcare being administered to Kerr[,]" and discusses various actions of alleged misconduct by Clark and subordinate nurses, ultimately asserting that "the ALJ substituted his own judgment for that of [Director] Solomon." However, whether just cause exists is a conclusion of law, which the ALJ had authority to review de novo. See, e.g., Carroll, 358 N.C. at 666, 599 S.E.2d at 898 (citations omitted).
In the instant case, the violations in question can be broken down into violations by Clark and violations by subordinate nurses. As to Clark's violations, although Clark conceded that she failed to note her chart review and the first nutraloaf approval in Kerr's medical record, as well as failed to ensure the nurse to whom she delegated the task of assessing Kerr actually completed that assessment, Clark testified that she reviewed Kerr's medical jacket and confirmed with the segregation nurse that there were no contraindications for starting Kerr on nutraloaf, as required by policy. Moreover, when Clark approved nutraloaf sixteen days prior to Kerr's death, she did document the approval in OPUS, which was visible to both custody and medical staff, including Rebecca Welch, a staff nurse ("Nurse Welch"), who approved Kerr's second nutraloaf issuance. Additionally, the uncontroverted evidence indicates that it was common practice at ACI to delegate routine tasks, such as taking vitals, to lower-lever nurses, and that the nurse to whom this task was delegated should have documented in Kerr's medical record both the results of her assessment and the fact that Kerr was approved for nutraloaf.
As to the documentation policy violations allegedly committed by subordinate nurses, we recognize that Clark held an administrative position intended to oversee and supervise the entire nursing staff at ACI. DPS charged Clark for failure to supervise based upon subordinate nurses' failure to document the code blue, to complete daily medical segregation checks, and to use the OPUS tracking system to track and to treat Kerr's chronic disease.
As to the first violation, the unchallenged findings establish that Nurse Sigmon responded to the code blue called by custody staff on 8 March 2014 and that Nurse Kemp, as lead nurse, was Nurse Sigmon's direct supervisor. When Clark was notified of the code blue, she followed up with Nurse Kemp, who assured her that it had been properly documented.
As to the second violation, nurses were required by policy to conduct daily checks on inmates in segregation. The ALJ found, uncontested, that "[t]he checks by nursing staff would be to see if the inmate had concerns and that they were talking and moving[,]" that these "medical checks on Kerr were documented by the custody staff through the ERTS system[,]" and that "[c]ustody staff . . . logs medical checks on inmates." Although Leach testified that the nurses' segregation checks were inconsistent, DPS presented no other evidence before the ALJ and has identified no further evidence on appeal, regarding the nurses' alleged failure to conduct these daily checks. Nor has DPS presented evidence that nursing staff was required to document these routine, daily segregation checks in a patient's medical record. The record does disclose detailed medical notes about Kerr that appear to be written by the nursing staff on 4, 5, 8, and 9 March 2014. Moreover, because DPS advances no argument in its brief about this particular violation as it relates to the existence of just cause to terminate Clark, it is deemed abandoned on appeal. See N.C.R. App. P. 28(b)(6) ("Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.").
As to the third violation, the evidence presented indicates that Nurse Tallery did violate the chronic disease policy by failing to follow up with Kerr every six months as required. The last recorded visit was in December 2012, and Nurse Tallery should have followed up with Kerr every six months thereafter, that is, in May 2013, then again in December 2013, and also in May 2014. However, we observe that Clark was not responsible for supervising Nurse Tallery until she was promoted to Nurse III in January 2014.
The critical issues for our review regarding Clark's alleged supervisory misconduct are whether Clark's failure to supervise the nursing staff resulted in the policy violations cited in her dismissal letter, and whether this alleged supervisory misconduct constituted just cause for Clark's termination. According to the ALJ's uncontested finding, "[a]t the time [Clark] took the Nurse Supervisor III position, [ACI] had a nursing shortage. This shortage, even prior to [Clark] assuming the new job, led to persistent problems in documentation issues." According to the evidence, Clark actively sought to ensure that her staff was properly trained and followed protocol for documentation. Clark had pocket-sized nurse protocol guides printed for all nurses to ensure they would always have access to "protocol guidelines." In addition, Clark discussed "documentation issues with the lead nurses and nurse clinicians in the monthly meetings." The nursing meeting minutes illustrate Clark's efforts to address documentation issues, as well as the need to properly document all encounters with patients. These meeting minutes were sent to Clark's off-site direct supervisors, Green and Epley.
In addition, although Clark's position was intended to oversee and supervise the entire nursing staff, due to staffing shortages of which her superiors knew but neglected, two critical Nurse I positions remained vacant. Director Solomon testified that he was aware that Clark's unit was understaffed and that although Clark was performing direct nursing care, she was not required to do so as a Nurse III. Director Solomon further testified that the vacant Nurse I positions would have directly supervised the lead nurses whose policy violations were cited in Clark's dismissal letter as evidence of her failure to supervise. In response to the nursing shortage in Clark's unit, the ALJ found, uncontested, that "[Clark] attempted to address the absence of the critical Nurse Supervisor I positions by seeking and interviewing candidates[,]" devoting to this task "up to three work days per month . . . during the entire three months she was in her position prior to Kerr's death." Nonetheless, although "[Clark] select[ed] candidates for the positions and sen[t] them up the chain of command . . . for approval, no response and no approval ever came[.]" Moreover, Clark testified that in addition to her efforts to fill the Nurse I positions, she had asked her superiors, specifically Green, for help, but received no response. According to Clark, this staffing shortage hindered her ability to fully perform the duties of her position.
Since the duties of the Nurse III were intended to be primarily supervisory and administrative, Clark was responsible for supervising the entire nursing staff. However, in this case, Clark was deprived of two critical supervisory nurses that were intended to directly report to her and oversee several subordinate nurses, including those nurses whose conduct was cited in Clark's dismissal letter. Clark's supervisors were aware of these shortages and Clark actively attempted to provide staff for them, but her supervisors took no responsive action after Clark forwarded information regarding potential candidates she had interviewed to upper-level management. As a result of these staffing shortages, Clark was required to perform many other duties beyond that of Nurse III, including direct care duties, which substantially impaired her ability to perform her supervisory duties. Additionally, although her superiors assured her she would receive additional training after being promoted to Nurse III, she never received additional training. In light of this evidence, we conclude Clark's actions related to her supervisory capacity over subordinate nurses did not constitute a severe violation of any known or written work rules. Regarding Clark's alleged violation of failing to document her review of Kerr's medical jacket and nutraloaf approval or to ensure a subordinate nurse assessed Kerr and completed documentation, although Clark has conceded that she should have documented approval or ensured the subordinate nurse completed her delegated tasks, we note that Clark did document her approval in OPUS, visible to custody and staff, and delegate the tasks of taking Kerr's vital signs and performing his physical assessment to a subordinate nurse. We conclude also that these failures were not severe violations.
As to the subject matter involved, this case dealt with the failure to document medical approval for a mentally ill inmate on a restrictive diet for disciplinary purposes in response to his disruptive behavior and the failure to supervise subordinate nurses who violated documentation policies in relation to the treatment of Kerr. As to the resulting harm, no evidence was presented establishing a causal connection between Clark's particular failures and the tremendous harm as a result of Kerr's death. Although DPS presented evidence indicating that a lack of medical documentation can, under a particular situation, create the potential for tremendous harm such as death, no evidence was presented establishing that Clark's particular acts or omissions caused Kerr's death.
As to Clark's work history, she had excellent performance reviews; her most recent review, consistent with previous reviews, gave her "Very Good" to "Outstanding" ratings. Additionally, Clark had a record of discipline-free employment with DPS. She had continued to assume more responsibilities and continued to be promoted based on her performance. No evidence was presented that Clark had failed to properly document medical care or failed to properly supervise subordinates in the past.
As to discipline imposed in similar violations, we note that Nurse Welch, the staff nurse who approved Kerr's second nutraloaf on 4 March 2014, did document in Kerr's medical record her review of Kerr's medical jacket, her determination there were no contraindications to approving nutraloaf; and her approval of nutraloaf. However, neither Nurse Welch nor any other nurse documented that Kerr's vital signs were taken, or that Kerr was physically assessed, prior to or after Nurse Welch's approval. After her approval, there are notes in Kerr's medical record indicating that nurses attempted to take Kerr's vital signs on 4, 5, and 8 March, but that he refused to have his vitals assessed. Despite these refusals, Welch never sought assistance from Clark or from any supervisory medical professional. Nor did Welch ensure that Kerr's vitals were taken or documented, or that Kerr was physically assessed, prior to or after approving nutraloaf. Three subordinate nurses who violated policy regarding Kerr's treatment were dismissed, but Welch was not disciplined in any respect.
We also note that Clark notified her direct supervisors of the nursing staffing shortages and documentation problems at ACI. Her supervisors promised to address these shortages but never did. Clark's supervisors also promised to train Clark to assume the role of Nurse III, but they never did. Clark's direct supervisors were not investigated in relation to Kerr's death and did not testify at Clark's trial. No evidence was presented that they took any actions to ameliorate ACI's staffing and documentation issues. Given Clark's supervisors' repeated failure to address these staffing and documentation concerns and their failure to train Clark to assume the duties of her new role, the supervisory inadequacies of Clark's direct supervisors may have been more actionable than Clark's. Nonetheless, according to the record, Clark's direct supervisors were not disciplined. Clark, on the other hand, received the most severe discipline, termination. Perhaps other types of discipline, such as a written warning, a disciplinary suspension without pay, or a demotion, could have been imposed before deciding to terminate Clark.
Although we recognize that the death of an inmate is a terrible tragedy, under the guidance recently emphasized by our Supreme Court to consider a variety of factors when determining whether just cause for discipline exists, we conclude that DPS failed to meet its burden of establishing that Clark's actions cited in her dismissal letter rose to the level of just cause for her termination. Therefore, we conclude that the ALJ properly determined that just cause to terminate Clark did not exist under either "grossly inefficient job performance" or "unacceptable work conduct."
IV. Conclusion
The challenged facts material to the ALJ's decision were supported by substantial evidence. Under a de novo review, we conclude that DPS failed to meet its burden to establish just cause to terminate Clark based upon either grossly inefficient job performance or unacceptable personal conduct. Therefore, we affirm the ALJ's decision to reverse Clark's dismissal, reinstate her as Nurse III at ACI, and pay attorneys' fees and costs in the amount of $22,330.42.
AFFIRMED.
Judges ELMORE and ZACHARY concur.
Report per Rule 30(e).