FILED
OFFICE OF ADMINISTRATIVE HEARINGS
6/19/2015 11:46 AM

STATE OF NORTH CAROLINA

IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE
14 OSP 06061
______________________________________________________________________
MICHAEL YOURON,

)
)
Petitioner,
)
)
vs.
)
FINAL DECISION
)
NC DEPARTMENT OF
)
PUBLIC SAFETY
)
)
Respondent.
)
______________________________________________________________________
On March 10-13, 2015, Administrative Law Judge Melissa Owens Lassiter heard
this contested case at the Office of Administrative Hearings in Raleigh, North Carolina.
On May 6, 2015, Respondent filed its proposed Final Decision with the Office of
Administrative Hearings. On May 7, 2015, Petitioner filed its proposed Final Decision.
APPEARANCES
For Petitioner:

Michael C. Byrne
Law Offices of Michael C. Byrne
150 Fayetteville Street, Suite 1130
Raleigh, NC 27601

For Respondent:

Tamika L. Henderson
Assistant Attorney General
Post Office Box 629
Raleigh, NC 27602
ISSUE

Whether Respondent had just cause to dismiss Petitioner for grossly inefficient
job performance?
EXHIBITS ADMITTED INTO EVIDENCE
For Petitioner:

7 (sealed), 10, 11, 13

For Respondent:

1 & 2 (sealed), 3 - 14, 17 - 21, 25

 WITNESSES
For Petitioner:

Petitioner

For Respondent:
Petitioner, George Solomon, Betty Gardner, Peter Kuhns
Ronnie Huneycutt, April Parker, Phyllis Vandiford, Terri Catlett
BURDEN OF PROOF
The burden of proof is on the Respondent to show by a preponderance of the
evidence that it had just cause to dismiss Petitioner from employment for grossly
inefficient job performance.
FINDINGS OF FACT
In making the Findings of Fact, the undersigned has weighed all the evidence
and assessed the credibility of the witnesses. The undersigned has taken into account
the appropriate factors for judging credibility of witnesses, including but not limited to the
demeanor of the witness, any interests, bias, or prejudice the witness may have.
Further, the undersigned has carefully considered 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. After careful consideration of
the sworn witness testimony presented at the hearing, the documents and exhibits
admitted into evidence, and the entire record in this proceeding, the undersigned makes
the following Findings Of Fact:
Procedural Background
1.

On May 8, 2014, Respondent dismissed Petitioner from employment for
engaging in grossly inefficient job performance. Specifically, Respondent
based its dismissal on the following allegations:

(1)
Petitioner failed to intervene to accelerate a transfer of inmate
Michael Kerr to Central Prison after being aware of Kerr’s decompensating
condition on February 21, 2014, and failed to report Kerr’s condition to his
superiors,
(2)
Petitioner failed to take any other action to resolve concerns
regarding Kerr’s condition, and failed to report the matter to management
after visiting Kerr on March 6, 2014,
(3)
Petitioner failed to intervene to assist Dr. Butler in addressing
inmate Kerr’s decline after being aware that Kerr did not attend
telepsychiatry clinics, and failed to meet with medical custody staff to
review the case and develop a finite treatment plan,

 (4)
Petitioner failed to provide proper supervision and assistance to Dr.
Christine, specifically relating to encounters with inmate Kerr,
(5)
Petitioner failed to take corrective action regarding Dr. Butler’s tardy
documentation through coaching, TAP entries, or disciplinary action.
(Respondent’s Exhibit 9)
2.

On August 5, 2014, Respondent issued its Final Agency Decision
upholding Petitioner’s dismissal from employment for grossly inefficient job
performance. In such decision, Respondent advised Petitioner that:

you fail to understand that the care of inmates which is demonstrated
through proper documentation is a critical aspect of your job. Proper
treatment planning and documentation is vital to ensure the health and
safety of mental health inmates and without it, you put inmates at risk.
The lack of coordinated and continual care of inmate Kerr, which you were
responsible for ensuring, placed the inmate at risk of an undesirable
outcome. . . . You did not see the inmate for 45 days and did not facilitate
his timely transfer to Central Prison Mental Health. You were aware of
multiple failed appointments with Telepsych for inmate Kerr but did not
take the initiative to contact the on-site psychiatrist for consultation nor did
you provide appropriate guidance or management in the care of inmate
Kerr. Lastly, you along with your staff did not follow the appropriate
protocol in the documentation of medical records. You did not provide
corrective actions to your staff for not following policies and procedures in
an appropriate manner. All of these failures constitute Grossly Inefficient
Job Performance
(Respondent’s Exhibit 10)
3.

On August 11, 2014, Petitioner filed a contested case petition with the
Office of Administrative Hearings appealing his dismissal from
employment with Respondent, and alleging that he was discharged
without just cause.

Adjudicated Facts
4.

Petitioner is a career status employee who was employed with
Respondent DPS at Alexander Correctional Institution in Taylorsville,
North Carolina (Alexander or “the facility”) since November 2009. T. 146.
Petitioner had 18 years of experience in the Pennsylvania prison system
before coming to Alexander. T. 153. During all relevant times of this case,
Petitioner worked as a Psychological Services Coordinator at Alexander.
Petitioner is a licensed psychologist, but does not have a doctoral degree

 in that discipline.
5.

Before being dismissed from employment, Petitioner had no prior
disciplinary action in his record. T 152. Petitioner had generally “Very
Good” to “Outstanding” performance reviews, with “Outstanding” being the
highest rating possible. T. 147. His last performance rating before his
dismissal was “Outstanding,” wherein Petitioner received “Outstanding”
ratings in the subcategories of Administration, Judgment, Analysis,
Technical Knowledge, and Performance Stability. T. 147 (Petitioner
Exhibit 13).

6.

During his final performance evaluation, Petitioner received an
"Outstanding" rating on his (a) ability to plan, monitor, and evaluate, (b)
performing professional duties, and (c) provides expertise. Petitioner’s
supervisor commented that:

Mr. Youron sets a consistently high standard of care and provides expert
crisis problem solving skills to the team. He is widely appreciated and a
valuable member of the Alexander Mental Health team.
T. 150-151. In that performance evaluation, Petitioner’s manager, Doug Walker, added
that “Mr. Youron is an excellent asset to Alexander and his expertise has been very
helpful.” T. 150-151.
7.

Respondent terminated Petitioner's employment after the March 2014
death of an inmate, Michael Kerr, who at the time of death was being
transported to Central Prison in Raleigh. DPS Director of Prisons George
Solomon was the decision-maker on Petitioner’s termination.

8.

Petitioner was employed on the Alexander Correctional Mental Health
staff. Petitioner’s supervisor was Dr. Karis Fitch. The highest ranking
Mental Health staff member at Alexander was psychiatrist, Dr. Richard
Selman, who was Clinical Services Coordinator.

9.

Alexander is a 1200-inmate facility. Approximately 1,000 of the inmates
are in the close custody facility known as “Alexander Main.” Another 200
are in a minimum custody facility adjacent to Alexander Main that is known
as “Alexander Minimum.” The facility has four categories of staff:
Administrative, Mental Health, Custody, and Medical.

10.

Alexander Correctional is part of one of three “regions” of correctional
facilities run by Respondent DPS. Alexander is in the Western Region.
Accordingly, the supervision chain ran from Alexander through regional
management, to the central management located in Raleigh. In terms of
psychologists, the supervision chain for Petitioner ran through Dr. Fitch to
Dr. John Monguillot at the regional level, and then Dr. John Carbone, the

 Director of Mental Health for the state prison system.
11.

Petitioner supervised four staff psychologist positions in his role as
coordinator of Outpatient Services. One psychologist position was vacant
during the relevant time of this case. T. 186. Petitioner attempted to fill the
vacant position, and selected an applicant, only to learn that DPS would
not approve the person’s requested salary. T. 187.

12.

Petitioner, and Dr. Karis Fitch repeatedly forwarded complaints to the
regional level that the patient caseload at Alexander was too high, and that
the staff were overworked. T. 196-197. Dr. Peter Kuhns, the Psychological
Services Coordinator at Central Prison, was aware of these complaints
over a period of years. George Solomon believed that such complaints
had been submitted to the regional level, though he disputed the monthly
frequency of such reports as Petitioner indicated. T. 651, 653. Solomon
did not believe that these reports were forwarded to Raleigh, though such
reports should have been, as such information was “valuable.” T. 659.

13.

Solomon confirmed that every mental health professional Respondent
interviewed after Michael Kerr’s death communicated overwork and
understaffing concerns [at Alexander Correctional] similar to Petitioner’s.
T. 659-660.

14.

There was no evidence presented at hearing proving that DPS took any
action in response to the understaffing or workload complaints submitted
before Michael Kerr’s death. T. 196-197. Terri Catlett, a DPS official,
contended that Alexander was adequately staffed and may have been
better staffed than other DPS facilities with similar missions. Solomon
expressed similar opinions, saying that the entire system had staff
shortages and/or unfilled vacancies. T. 670-71.

15.

Dr. Christine Butler was one of the staff psychologists Petitioner
supervised during the relevant time. Inmate Michael Kerr was Dr. Butler’s
patient. Dr. Butler, who resigned after Kerr’s death, did not appear and
testify at the hearing of this case.

16.

A preponderance of the evidence showed that Dr. Butler was consistently
behind on her documentation of patient care. Petitioner and Fitch were
aware that Dr. Butler was behind, though in Petitioner’s case, not to the
extent Butler was subsequently shown to be. T. 190. Proper
documentation is required for continuity of care, and Respondent DPS'
“Basic Medical Documentation” policy reflects this.

17.

The preponderance of the evidence at hearing also established that all the
staff psychologists at Alexander were behind on their documentation due
to workload issues. T. 190. Karis Fitch acknowledged that her duties of

 monitoring the admission of residential mental health patients, attending
meetings, internships duties, and monitoring the influx of inappropriate
transfers from Central Prison to Alexander's segregation unit took time
away from her own duties of monitoring charts, notes and rounds.
(Petitioner's Exhibit 11) Petitioner explained that he and Fitch did not take
any disciplinary action against Dr. Butler and other staff because staffs'
lack of documentation was due to being overworked. “They were
inundated. They were managing caseloads beyond what they should have
been.” T. 195.
18.

At hearing, Director Solomon conceded that late documentation was not
an issue restricted to Petitioner’s subordinates: “They were all behind” on
documentation, including the Medical staff and the whole facility [at
Alexander]. T. 668. Yet, despite this admission, Solomon contended that
the Alexander facility was adequately staffed as follows:

Q.

Are you contending, sir, that you had an entire facility full of people,
administrators, mental health, medical, who were behind on their
documentation simply because they were all just collectively
negligent?

A.

No.

T. 669.
19.

Respondent did not present any evidence that Petitioner was behind on
his own documentation. The evidence showed that Petitioner attempted to
assist the staff psychologists by taking on certain duties, including risk
assessments, certain evaluations, and initial screenings. T. 189. Until a
second Psychological Services Coordinator was hired in January 2014,
Petitioner also managed a caseload of 30 to 45 in addition to his staff
duties and the other duties he had assumed. T. 193.

20.

At hearing, Petitioner explained that his first priority was delivery of patient
care. He did not tell any subordinate that it was acceptable to not
document patient care; only that it should be done as soon as possible. T.
191. This is similar to the directive of the relevant policy, which also calls
for documentation to be done as close to the time of rendering treatment
as possible. Petitioner coached Dr. Christine Butler on more than one
occasion regarding her tardy documentation. T. 129.

21.

Petitioner and Fitch planned a one-week “grace period” for the week of
April 7, 2014 in which staffs' mental health services would be restricted to
emergency cases, so the staff could catch up on their documentation.
Petitioner noted that Dr. Butler was aware of this before inmate Kerr’s
death.

 22.

Respondent attempted to impeach that evidence by admitting a portion of
Dr. Butler’s written statement claiming she was unaware of the plan. Dr.
Butler did not testify at the contested case hearing to corroborate such
statement.

23.

Had Dr. Butler not improved on her documentation after the "grace
period," Petitioner would have made a TAPS entry or other disciplinary
action for Dr. Butler. T. 197-198. Petitioner did not think it fair to discipline
Butler or others, before the grace period, as he believed the problem with
Butler’s documentation, and others, was an excessive caseload and
overwork generally. (Petitioner's Exhibit 25) In addition, Petitioner viewed
the mental health staff behind on documentation as mental health
professionals. He thought it was more appropriate and productive to
address such issues with those professionals through face to face
meetings rather than through TAPS entries. (Petitioner's Exhibit 25)

24.

Michael Kerr was neither Petitioner’s patient nor ever on Petitioner’s
caseload. T. 156. Kerr was on Dr. Butler’s caseload. T. 155. At no time
was Petitioner charged with rendering direct mental health care to Michael
Kerr. T. 155. Until March 6, 2014, Petitioner had never met Michael Kerr.

25.

Dr. Butler had been treating inmate Kerr as far back as 2013. Even
though Kerr had a diagnosis of schizoaffective disorder and other reported
mental health issues, Dr. Butler repeatedly and consistently concluded that
Kerr was malingering, or feigning his condition, in order to achieve a
transfer to Central Prison or to Scotland, another DPS facility. T. 158. In
fact, on those previous occasions, Kerr's "feigned" symptoms were
substantially similar to those Kerr was exhibiting on or before March 6,
2014.

26.

The Scotland Correctional facility does not accept inmates on medication.
T. 158. Petitioner has no ability to either prescribe medication or take an
inmate off medication. T. 164. Only the psychiatrist can do that at
Alexander Correctional. T. 165. Petitioner likewise was unable to force an
inmate to go to “telepsychiatry” sessions. Telepsychiatry sessions are
sessions where an inmate speaks via video transmission with a
psychiatrist located in Raleigh. T. 164.

27.

At some point during the fall of 2013, Dr. Carlson, Kerr’s psychiatrist,
allowed Kerr to quit taking his psychotropic medication. The Alexander
mental health staff as a group, including the psychiatrist concurrently
involved in his care, tried to get Kerr back on his medication without
success. T. 166. This included scheduling three telepsychiatry sessions for
Kerr, which were scheduled by Dr. Butler with Petitioner’s assistance. T.
166. On at least three different occasions, inmate Kerr agreed to speak

 with a psychiatrist via telepsychiatry, but then refused to get up and attend
each appointment. T. 166-167. Petitioner did not view Kerr’s refusals as
mental health symptoms, but rather, as the acts of an uncooperative
inmate. T. 185
28.

Petitioner was aware, through reports from Dr. Butler, that Michael Kerr
was chanting, flooding his cell, showing poor hygiene, and being
uncooperative. T. 161-162.

29.

Petitioner opined that Kerr’s actions would not themselves indicate mental
illness, as “inmates act out in various ways and this was one of the ways
they had of doing this.” T. 162. Inmates have little control over their
situations, and do these things to exercise some control over that. T. 161.
Petitioner gave several examples of prisoners acting in a similar fashion.
T. 161-163. Dr. Kuhns, from Central Prison, concurred with this.

30.

Accordingly, the conduct reputed to Kerr did not in itself make Petitioner
believe a deteriorating mental health condition was involved. T. 164. That
Kerr was reported to have faked symptoms before also had a bearing on
Petitioner’s conclusion. T. 164.

31.

There were weekly staff meetings held with the assembled mental health
staff. Persons senior to Petitioner, including Fitch, Petitioner’s supervisor,
and/or Dr. Selman, the Clinical Director of Psychiatry at Alexander,
regularly attended these meetings. T. 168.

32.

At those meetings, Butler repeatedly reported on Michael Kerr, and
consistently concluded that he was malingering. T. 167. At these
meetings, neither Dr. Selman nor any other senior staff took issue with Dr.
Butler’s reports that Kerr was malingering. T. 169.

33.

Respondent contended that Petitioner's failure to verify Dr. Butler's
malingering diagnosis by performing his own assessment or evaluation of
inmate Kerr was part of Petitioner's grossly inefficient performance. A
preponderance of the evidence established that until March 6, 2014,
Petitioner had no reason to doubt or dispute Dr. Butler’s opinions, as
Kerr’s treating psychologist, that Kerr was malingering. Petitioner viewed
and treated Dr. Butler as a mental health professional. He had no reason
to doubt her professional opinions, and therefore, had no reason to
micromanage her caseload. In addition, Petitioner and other mental health
staff discussed Kerr's case at the aforementioned weekly meetings.

34.

On February 21, 2014, Captain Ronnie Huneycutt, Correctional Captain at
Alexander, sent an email advising staff that he had removed the restraints
from inmate Kerr, except for handcuffs. Huneycutt advised that after a
while, they were able to get inmate Kerr to come to the cell door, and staff

 removed Kerr’s cuffs. Huneycutt stated:
I just felt that there was no longer a point to keeping him in restraints as he
was just sitting in the floor in his own urine refusing to move or do
anything. Medical was also worried that he was dehydrated. Over a
period of time[,] staff was able to get him to drink some water and he
appears to be doing some better, although we continued his water shut off
due to after he drank a few cups of water he began pouring it in the floor
stating ‘come on in[,] the water is find’ as he was doing before. Staff are
turning the water on hourly and allowing him to use it. I just wanted to
make you aware of what was done.
(Respondent’s Exhibit 18)
35.

Captain Huneycutt copied Petitioner, Roger Moose, William Farrish, April
Parker, and Daren Bruce on his February 21, 2014 email about Michael
Kerr.

36.

Respondent DPS contended that Huneycutt’s February 21, 2014 email
alerted Petitioner that Kerr was “decompensating,” and that Petitioner
should have acted to accelerate Kerr’s transfer to Central Prison.
However, Huneycutt’s email neither made such claim, nor did it request
assistance from the mental health staff. Huneycutt intended that Dr. Butler
and Fitch to be the primary recipients of the email, as part of his previous
arrangement with Fitch to inform Fitch of matters Huneycutt observed
regarding inmates. T. 688. Though an “on-call” psychologist was available
to treat inmate Kerr on the evening of February 21, 2014, in the event of a
serious or emergent situation being observed, Huneycutt did not seek that
person’s assistance that evening. T. 689.

37.

Petitioner opined there was nothing in the February 21, 2014 email that led
him to conclude Kerr was decompensating. T. 155. First, the February 21,
2014 email did not state that inmate Kerr was decompensating. T. 154.
Second, there was neither a call nor a request for action in the email on
Petitioner’s part. T. 154. Third, while the email referred to a dehydration
issues with Kerr, the email also said that Medical staff had resolved
concerns about dehydration. T. 154.

38.

In response to the February 21, 2014 email, Karis Fitch had Dr. Butler
perform an evaluation of inmate Kerr. Dr. Butler’s evaluation of inmate
Kerr does not appear to have been documented. T. 155. However, Dr.
Butler reported her continued belief that Kerr was malingering, first to
Fitch, and then to Petitioner. T. 157. Dr. Butler saw no reason for Kerr to
go to Central Prison at that time. T. 157.

39.

On February 24, 2014, Dr. Selman, and other staff attended one of the

 previously-mentioned staff meetings, four days after Huneycutt’s email. T.
169. No one present questioned or disagreed with Dr. Butler’s view that
Kerr was malingering. T. 170
40.

On March 6, 2014, Petitioner was preparing to depart Alexander on
approved leave. Once Petitioner went on leave, Petitioner’s duties as Dr.
Butler’s supervisor had, for practical purposes ended, as Petitioner was
changing jobs when he returned from leave, to become the Psychological
Services Coordinator for the Residential Mental Health unit at Alexander.

41.

On the morning of March 6, 2014, Petitioner was in the segregation wing
seeing one of his patients. Michael Kerr was in the cell next door.
Petitioner’s attention was drawn to Kerr’s cell, because a towel was stuffed
under the cell door, and a box was next to the door. Both of these items
were related to inmate Kerr flooding his cell. T. 176.

42.

Kerr was not in cuffs or restraints, but was standing up. T. 176-77. He was
walking upright, and did not appear to experience any difficulty moving. T.
177. He did not appear to have difficulty speaking. T. 177. Petitioner was
able to converse with Michael Kerr. T. 177. Kerr was not singing,
shouting, or chanting. T. 177. The only thing Kerr said in reference to the
flooded cell was, “Come on in, the water’s fine.” T. 177.

43.

At hearing, George Solomon did not dispute Petitioner’s description of
Kerr’s condition on March 6, 2014. Solomon saw a video of Michael Kerr
taken on March 12, 2014, the date of Kerr’s death, and Kerr was in a quite
different condition than what Petitioner observed six days earlier. T. 625.

44.

The evidence at hearing established that inmate Kerr was left in handcuffs
for five days before his death. Petitioner was not aware that Kerr was left
in handcuffs for five days before death, and did not see him in handcuffs
on March 6, 2014. T. 199-200. Petitioner had no role in placing Kerr in
handcuffs. T. 200.

45.

Nothing that Petitioner saw on March 6, 2014 suggested to him that
inmate Michael Kerr was in danger of some kind of severe mental health
episode. In Petitioner’s mind, there was no evidence, when he saw Kerr
on March 6, 2014, that Kerr was “in decline” as DPS later asserted. In
addition, Petitioner opined that the mental health staff would not have used
the term “in decline” to describe Kerr’s condition. T. 184.

46.

Nonetheless, Petitioner was concerned about Kerr’s actions after he
observed Kerr on March 6, 2014, and concluded that, “we had reached the
limit of what could be done for Kerr at Alexander between the multiple
attempts to have him evaluated by the psychiatrist.” T. 178 Petitioner “just
didn’t see that we were getting any benefit from the efforts that we were

 trying to utilize.” T. 178.
47.

Accordingly, that same day, Petitioner directed Dr. Butler to have inmate
Kerr transferred to Central Prison Mental Health. Petitioner told Dr. Butler
that whether Kerr was malingering or not, Alexander had no more
resources to utilize and it was prudent to send him to Central Prison. T.
179. Dr. Butler agreed with this direction. Later that day, Butler contacted
Petitioner, and told Petitioner that she had contacted Central Prison, and
no beds were available until Monday. T. 180.

48.

At hearing, Dr. Kuhns, Psychological Services Coordinator at Central
Prison, did not recall having a full facility at Central Prison, in March of
2014. However, there was no evidence presented at hearing that
Petitioner was aware that Dr. Butler’s claim was false, if indeed it was
false.

49.

Petitioner did not document his direction to Dr. Butler, to transfer Kerr to
Central Prison, because “it was just an instruction that he would give to a
staff person during the day.” T. 179. The documentation would have been
done by the person fulfilling the direction and effectuating the transfer; i.e.,
Dr. Butler. T. 180.

50.

From March 7 to March 16, 2014, Petitioner was on approved leave from
Alexander. Petitioner produced proof that on March 7, 2014, he traveled
by air to New York (Petitioner’s Exhibit 10), and was nowhere near
Alexander. T. 172. On March 12, 2014, the day that Michael Kerr died,
Petitioner was hospitalized with a heart condition. T. 174, 175. Petitioner
did not return to Alexander for work until March 18, 2014, six days after
Michael Kerr died. T. 175.

51.

Due to Petitioner being on leave, Petitioner did not receive the subsequent
emails that Dara Sims sent about inmate Kerr on March 7, March 8, March
9, and March 11, 2014. T. 173-174. (Petitioner’s Exhibit 7)

52.

While Petitioner’s job description states that work may be required outside
of normal work hours, nothing in that description, or in any applicable DPS
policy, required that Petitioner continue to do work for DPS, or supervise
persons, while he was on leave, including while Petitioner was
hospitalized.

53.

While Petitioner was away from Alexander, no one contacted him about
inmate Kerr. T. 181. Petitioner had no reason when he left on March 6,
2014 to believe that Dr. Butler would not promptly follow through with
Kerr’s transfer to Central Prison. T. 180.

54.

However, Kerr was not promptly transferred to Central Prison. Instead,

 inmate Michael Kerr remained at Alexander another six days, until March
12, 2014. Kerr died on the way to Central Prison. Respondent never
informed Petitioner of Kerr’s death.
55.

Dara Sims, staff psychologist at Alexander, worked during the weekend of
March 7, 8, and 9, 2014. Sims saw inmate Kerr at least two times, but did
not move to accelerate Kerr’s transfer. Respondent did not issue any
formal disciplinary action against Sims over this issue, but merely issued
Sims a negative TAPS job performance entry. T. 627-629.

56.

At hearing, Director Solomon conceded that Petitioner was not at fault for
inmate Kerr not being moved to Central Prison until 6 days after Petitioner
left on leave. T. 629.

57.

Director Solomon confirmed that Michael Kerr’s reported cause of death
was dehydration, not mental illness. T. 630-31. Alexander’s Mental Health
staff did not have the ability to transfer Michael Kerr to a medical facility,
but were only permitted to send him to Central Prison. However, in an
emergency, the medical staff at Alexander Correctional could have
transferred Michael Kerr to a civilian, or other medical facility, for
dehydration or any other medical treatment at any time. However, they did
not, even though the nearest medical facility, Catawba Valley, was 20 to
30 minutes away by car.

58.

Director Solomon confirmed that Medical Staff at Alexander took no action
to have Michael Kerr taken to a civilian facility close to the prison. Solomon
noted that, “I wish they had.”

59.

The undersigned takes Judicial Notice that the distance from Taylorsville,
North Carolina to Central Prison in Raleigh is between 2 hours and 40
minutes and 3 hours, considerably longer than 20-30 minutes it would take
to drive to the nearest medical facility.

60.

On March 18, 2014, Petitioner first learned of Michael Kerr’s death upon
his return to work at Alexander.

61.

Following Petitioner’s return to work, Petitioner’s actions were investigated
by contract investigators from the DPS Professional Standards Office. The
primary investigator and author of the report on Petitioner was Phyllis
Vandiford.

62.

Vandiford is a retired Administrative Services Manager with 29 years of
service. T 488. She had one and one-half years experience as a
correctional officer at the time she began working for DPS. T. 488. She
has never worked at Alexander Correctional, and had never been to
Alexander Correctional before being appointed as an investigator. T. 488.

 63.

Vandiford has four years of high school educational experience, and one
year of college. T. 495. She has no professional experience or licensure
in the discipline of psychology or psychiatry, and has never been licensed
or trained in any mental health or medical field. T. 496-497. Her
co-investigator, Mr. Anderson, likewise had no professional licensure in
medical or mental health, and no evidence was offered that he had any
training or experience in those areas. T. 500. Anderson did not testify at
the contested case hearing.

64.

During her investigation, Vandiford did not interview any of the
administrative staff at Alexander Correctional. T. 489. She did not
interview Karis Fitch, Petitioner’s supervisor. T. 493. Nor did she interview
Dr. John Monguillot, the next level supervisor (T. 494) or Dr. Carbone, the
next level in the chain of command. T. 493.

65.

Vandiford did not interview Dr. Selman, the lead mental health
professional at Alexander, nor did she interview any other psychiatrist. T.
494. Neither did Vandiford know who was the Director of Clinical Services
(Selman), and contended that Fitch was the senior mental health
professional at the prison. T. 496.

66.

Vandiford did not know whether psychologists such as Petitioner and Fitch
could issue medication to inmates. T. 493. This was despite her report
eventually faulting Petitioner for Michael Kerr being on and off his
medication. T. 495.

67.

Vandiford was unaware that the mental health staff in question felt that
they were overworked. T. 508. She claimed that no one told her that,
despite it being referenced in multiple written statements, including
Petitioner’s statement. T. 508. Subsequently, Vandiford conceded that
Petitioner was both concerned about the increase in mental health cases,
and that there were recommendations to hire additional staff. T. 511.

68.

Vandiford was aware from Petitioner that there were weekly staff meetings
of the mental health staff at Alexander. T. 518. She made no effort to
obtain the minutes of those meetings. T. 518. She was unaware that Kerr’s
case was reported on during those meetings. T. 519. She was also
unaware that one of those meetings took place February 25, 2014, four
days after the Huneycutt email. T. 519.

69.

Vandiford was unaware that at this staff meeting Dr. Butler reported to the
assembled mental health staff, including Dr. Selman and Petitioner, her
opinion that Michael Kerr was malingering in order to be sent to Central
Prison. Vandiford noted that, “I don’t – I don’t recall that.” T. 520.

 70.

In her report, Vandiford faulted Petitioner for not reporting issues about
inmate Michael Kerr to, among other persons, Dr. Selman. However, at
trial, Vandiford did not know who Dr. Selman was, what he did, or what
was his position. T. 521-523.

71.

At hearing, Vandiford was asked to define the mental health term
“decompensating,” which she used in her report. She stated:

It’s my understanding that you’re at a certain level, and over a period of
time your body starts to deteriorate or your health starts to get to a point
where you need further treatment.
T. 497.
72.

When asked where she obtained this definition, Vandiford said that she
obtained it from looking the word up in the dictionary on her mobile phone:
“I Googled it. I wanted to know what it means.” The following questions
and answers ensued:

Q.
A.
Q.

You Googled it [the definition] on your cell phone?
Yes, I did.
And that is how you obtained your definition of the mental health
term “decompensating,” is that correct?
Yes.

A.
T. 497-498
73.

Vandiford issued a report finding fault with Petitioner on a number of
levels, and recommending “corrective action.” (Respondent’s Exhibit 11).
While Director Solomon did not rely solely on Vandiford’s report in making
his decision, the language of the dismissal letter issued to Petitioner by
DPS largely mirrors Vandiford’s conclusions about Petitioner’s conduct.

74.

Vandiford’s report concluded that Petitioner “was aware of Inmate Michael
Kerr’s decompensating condition on February 21, 2014.” The only
evidence she presented to sustain this claim was the email from
Huneycutt, directed to Fitch and Dr. Butler. However, Huneycutt’s email
(Respondent’s Exhibit 18) neither uses the term “decompensating” or says
anything about mental illness. T. 516. Despite this, Vandiford claimed at
trial that it was this email that “alerted” Petitioner that Kerr was
“decompensating.” T. 516-517.

75.

In her report, Vandiford concluded that Petitioner went to Michael Kerr’s
cell on one occasion, and witnessed Kerr’s condition, but neither reported
or took any action to resolve concerns regarding Kerr’s condition.
However, at hearing, Vandiford gave repeated evasive answers when

 asked about this allegation:
Q.
A.
Q.
A.
Q.
A.
Q.

A.
Q.
A.
Q.
A.
Q.
A.
Q.

Isn’t it true that Mr. Youron told you that he contacted Dr. Butler on
the day that he observed Michael Kerr in his cell?
I believe he did.
That’s an action, isn’t it?
It could be.
What do you mean, it could be? It either is or it isn’t.
But he – there was no other action as far as reporting it or taking it
any further.
Your report says that Mr. Youron went to the cell, witnessed Mr.
Kerr’s condition, talked to him about drinking water but not throwing
it, but no other action was reported or taken. Did I read that
correctly?
Yes.
And you have just said that you knew that Mr. Youron reported his
visit and what he observed to Dr. Butler. Isn’t that true?
Yes.
And your report doesn’t say that, does it.
It doesn’t say that.
And that report is accordingly inaccurate as to that point, is it not?
Not totally.
Not totally?

THE COURT: What do you mean by that?
A.
Q.
A.

That nothing was done to resolve the issue with Michael Kerr.
So reporting the visit and what he observed to Inmate Kerr’s treating
psychologist constitutes doing nothing, in your view?
No, I didn’t say nothing.

T. pp. 531-532
76.

In further questioning on these points, Vandiford became overtly evasive:

Q.

And you didn’t think it was important to include in your conclusions the fact
that Mr. Youron, who was not Inmate Kerr’s treating psychologist,
him as you referenced and went to his treating psychologist and
his observations? You didn’t feel it was important to include

observed
reported
that?
A.
Q.
A.
Q.

It could have been added.
It should have been added, shouldn’t it?
It could have been added.
The question I asked was, sitting here today, it would have been
substantially more factually accurate to have added the fact known to you
that upon making the very observations that you cited, Mr. Youron went to

 A.

Dr. Butler, reported what he observed [on] Kerr – wouldn’t have that been
substantially more accurate?
It could have been added.

T. 533.
77.

Vandiford admitted that Petitioner told her he had instructed Dr. Butler that
Kerr should be sent to Central Prison Mental Health. T. 533. Nonetheless,
Vandiford did not reference Petitioner’s statement in her report, either. T.
533:

Q.

And Mr. Youron also told you that he told Dr. Butler that Mr. Kerr
should be sent to Central Prison Mental Health,
didn’t he?
Yes.
And that’s not in there either, is it?
No.
And that’s pretty important, given you state [in your report] that
Petitioner did not intervene to get Mr. Kerr to Central Prison?
It could have been in put in there.

A.
Q.
A.
Q.
A.
T. 533-534.
78.

In response to questions from the undersigned, Vandiford asserted that
Petitioner should have followed up on inmate Kerr even though Petitioner
left the facility on approved leave that day, six days before Kerr died, and
did not return to the facility until March 18, 2014, six days after Kerr died.
T. 535. Vandiford claimed that Petitioner should have followed up on
inmate Kerr, who was not his patient, even though Petitioner was on leave.
T. 536. However, Vandiford admitted that her report did not make that
claim.

79.

When the undersigned asked Vandiford was there a rule that requires
Petitioner to follow up on his job when he’s on leave, Vandiford answered,
“I don’t think we stated any kind of rule.” Vandiford conceded there was
no policy or rule that required Petitioner to follow up on someone else’s
patient while Petitioner was on leave. T. 538

80.

When asked by counsel if she knew Petitioner was hospitalized when he
was on leave, Vandiford stated that “I know there was medical concerns.”
T. 537. When Vandiford was asked whether Petitioner should have
followed up on Michael Kerr from Petitioner’s hospital bed, she said, “No.”
T. 538. When asked why she said Petitioner should have followed up on
Kerr while Petitioner was on leave, Vandiford replied, “But he was not in
the hospital following, I don’t believe.” T. 538. When asked why that would
matter, Vandiford gave no audible response. T. 538.

 81.

Vandiford conceded that Petitioner had already left, and was on leave, on
March 8, 2015, the day a Code Blue was called on inmate Kerr. She also
conceded that Petitioner had nothing to do with that issue or any alleged
lack of follow up to it. T. 550-551. A “Code Blue” is a medical emergency.
Petitioner was not a participant in the Code Blue, and it is not cited as a
defect on his part in the dismissal letter. See N.C.G.S. 126-35(a). In fact,
Vandiford's investigation revealed that when correctional staff and nurse
Kemp was leaving Kerr's cell after the March 8, 2014 Code Blue, Nurse
Kemp told correctional officer Triplett that "she wasn't going to do
anything. . . he [Kerr] is faking . . if he could urinate in the floor and tear
up a milk carton and put it in his commode, then there was nothing wrong
with him." (Petitioner's Exhibit 11)

82.

Vandiford claimed that she took into account the overwork, or caseload,
and understaffing situation that was reported to exist at Alexander, in her
Report’s conclusions. T. 513. However, when asked where she referenced
the overwork and understaffing in her report, Vandiford indicated only that
the information was in the witness statements. T. 513. Vandiford then
conceded that these issues were referenced nowhere in her conclusions,
Findings of Fact, or elsewhere:

Q.

So while you claim you took all of this into account, your report says
nothing about it. Isn’t that true, ma’am?
Yes.

A.
T. 514.
83.

At hearing, Director Solomon claimed that despite the issues that occurred
in Vandiford’s testimony, he still maintained confidence in the accuracy of
the PSO report on the “points that I considered.” T. 594. Solomon did,
however, agree that Vandiford’s claim that Petitioner “took no other action”
about Inmate Kerr, as referred to in Vandiford’s report, and in the dismissal
letter, was “incorrect.”
However, Respondent’s dismissal letter to
Petitioner tracks very closely, and in part verbatim, the allegations in
Vandiford’s report finding fault with Petitioner. (Respondent’s Exhibit 9,
Petitioner’s Exhibit 3) T. 598-599.

84.

The undersigned does not find Ms. Vandiford to be a credible witness, due
in significant part to her repeated instances of evasive and non-responsive
answers, as cited above.

85.

At hearing, Petitioner stated:

Mr. Kerr’s death was a tragedy. I mean, it’s tragic. He was a human being.
No life should be lost. But I don’t believe I was responsible for Mr. Kerr’s

 death.
T. 199.
86.

No witness for Respondent, including any witness with professional
training, testified that anything Petitioner did, or failed to do, either caused
Michael Kerr’s death or serious injury to Kerr, or created the potential for
death or serious bodily injury to Kerr.

87.

No witness for Respondent testified that Petitioner’s taking any specific
action would have triggered a series of events removing the potential for
death or serious bodily injury to Michael Kerr.

88.

There was no evidence presented proving that any policy required
Petitioner to report what he knew of inmate Kerr to persons outside the
facility. The preponderance of evidence showed that Petitioner’s
supervisor, Karis Fitch, and Dr. Selman, among others, were receiving
regular reports on inmate Kerr, and none questioned Dr. Butler’s
conclusion that inmate Kerr was malingering.

CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, the undersigned concludes:
1.

The Office of Administrative Hearings has personal and subject matter
jurisdiction over this contested case, and the parties received proper
notice of the hearing in this matter. To the extent that the Findings of Fact
contain Conclusions of Law, or that the Conclusions of Law are Findings of
Fact, they should be so considered without regard to the given labels.

2.

Despite the parties’ due diligence, the complexity of the case, and time
needed to complete, this case presented a situation of a kind that
exceeded the usual, regular, and customary practice for completion of a
contested case hearing. As such, the undersigned found extraordinary
cause existed pursuant to N.C. Gen. Stat. § 126-34.01, so that the hearing
of this case, and the issuance of the Final Decision will be rendered more
than 180 days from the commencement of the case.

3.

N.C. Gen. Stat. § 126-35(a) provides that, “No career State employee
subject to the State Personnel Act shall be discharged, suspended, or
demoted for disciplinary reasons, except for just cause.”

4.

At the time of his dismissal, Petitioner was a career state employee, as

 defined under Chapter 126 of the North Carolina General Statutes, and
thus, was entitled to the protections of the North Carolina Personnel Act,
and the administrative regulations promulgated hereunder.
5.

In a career State employee’s appeal of a disciplinary action, the
department or agency employer bears the burden of proving that “just
cause” existed for the disciplinary action. N.C. Gen. Stat. § 126-35(d)
(2007).

6.

25 NCAC 01J .0604(b) enumerates two grounds for disciplinary action,
including dismissal, based on just cause, as set out in N.C. Gen. Stat. §
126-35. These two bases are: (1) Discipline or dismissal imposed on the
basis of unsatisfactory job performance, including grossly inefficient job
performance, and (2) Discipline or dismissal imposed on the basis of
unacceptable personal conduct.

7.

25 NCAC 01J .0606 DISMISSAL FOR GROSSLY INEFFICIENT JOB
PERFORMANCE states:

(a)
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.
8.

25 NCAC 01J .0614 defines “gross inefficient job performance" as:

(5)
Gross Inefficiency (Grossly Inefficient Job Performance) means a
type of unsatisfactory job performance that occurs in instances in which
the 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:
(a) the creation of the potential for death or serious bodily injury to
an employee(s) or to members of the public or to a person(s) over
whom the employee has responsibility; or
(b) the loss of or damage to state property or funds that result in a
serious impact on the State or work unit.
Thus, Respondent must prove that Petitioner failed to perform a job requirement
satisfactorily and that failure resulted in the potential for death or serious bodily injury.
Donoghue v. North Carolina Department of Correction,166 N.C. App. 612, 616, 603 S.E.
2d 360, 363 (2004)
9.

Our Court of Appeals explained in North Carolina Department of
Correction v. McKimmey, 149 N.C. App. 605, 609, 561 S.E.2d 340, 343

 (2002) that “[i]t is uncontroverted that [25 NCAC 1J.0606] only requires
that the creation of the potential for death or serious bodily injury, and
does not require that actual death or serious bodily injury result.”
10.

N.C.D.E.N.R. v. Clifton Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004),
states that the fundamental question in determining just cause is whether
the disciplinary action taken was just. Citing further, “Inevitably, this
inquiry requires an irreducible act of judgment that cannot always be
satisfied by the mechanical application of rules and regulations.” Our
Supreme Court said that there is no bright line test to determine “just
cause”— it depends upon the specific facts and circumstances in each
case. Furthermore, “not every violation of law gives rise to ‘just cause’ for
employee discipline.”

11.

Though just cause is case-dependent and not exclusive, Carroll provides
examples of some other actions where just cause were found:

Although there is no bright line test to determine whether an employee's
conduct establishes "unacceptable personal conduct" and thus "just
cause" for discipline, we draw guidance from those prior cases where just
cause has been found. .. See, e.g., Kea, 153 N.C. App. 595, 570 S.E.2d
919 (employee violated known and written work rules, disobeyed direct
order from superior, and made crude and offensive sexual advances to a
co-worker); Davis v. N.C. Dep't of Crime Control & Pub. Safety, 151 N.C.
App. 513, 565 S.E.2d 716 (2002) (highway patrol officer was stopped for
speeding and driving while intoxicated); N.C. Dep't of Corr. v. McNeely,
135 N.C. App. 587, 521 S.E.2d 730 (1999) (correctional officer abandoned
post without authorization and failed to remain alert while on duty); Gray v.
Orange Cty. Health Dep't, 119 N.C. App. 62, 457 S.E.2d 892 (1995)
(health department inspector engaged in inappropriate sexually oriented
behavior during inspections of catering businesses [***53] owned by
women), disc. rev. denied, 341 N.C. 649, 462 S.E.2d 511 (1995); Leiphart
v. N.C. Sch. of the Arts, 80 N.C. App. 339, 342 S.E.2d 914 (1986) (division
director at North Carolina School of the Arts surreptitiously organized
meetings with other division directors to discuss complaints against their
superior), cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986).
12.

In the recent case of Warren v. NC Dept. of Crime Control & Public Safety,
the Court of Appeals crystallized the Carroll just cause analysis as follows:

The proper analytical approach is to first determine whether the employee
engaged in the conduct the employer alleges. The second inquiry is
whether the employee's conduct falls within one of the categories of
unacceptable personal conduct provided by the Administrative Code.
Unacceptable personal conduct does not necessarily establish just cause
for all types of discipline. If the employee's act qualifies as a type of

 unacceptable conduct, the tribunal proceeds to the third inquiry: whether
that misconduct amounted to just cause for the disciplinary action taken.
Just cause must be determined based "upon an examination of the facts
and circumstances of each individual case.
Warren v. N.C. Dep't of Crime Control & Pub. Safety, 726 S.E.2d 920, 925 (N.C. Ct.
App. 2012).
Step One: Did the Petitioner Commit The Conduct Alleged?
13.

The dismissal letter alleges that the following acts and omissions by
Petitioner constituted “grossly inefficient job performance:”

A.
Did not intervene to accelerate a transfer to Central Prison after
being aware of Kerr's decompensating condition on February 21, 2014, and did not
report Kerr's condition to Dr. John Monguillot, Dr. Rick Selman, or any official in Mental
Health Services at the Division of Prisons Headquarters.
14.

The undersigned finds this allegation unsubstantiated.
The
preponderance of the evidence established that inmate Michael Kerr was
not Petitioner’s patient, but was Dr. Butler’s patient. Since February 2014,
Dr. Butler repeatedly reported her opinion about Kerr’s malingering to
Petitioner and to all members of the Alexander Mental Health staff during
weekly staff meetings. There was no evidence that Petitioner or any other
mental health staff disagreed with, or questioned Butler's malingering
diagnosis of Kerr. Neither was there any evidence that Petitioner, or any
reasonable person in Petitioner's position, should have questioned Butler's
medical expertise, or caused Petitioner to micromanage Butler in
performing her job.

15.

Dr. Selman received reports from Dr. Butler about inmate Kerr, as did
other staff. Neither Selman nor other staff questioned or disputed Dr.
Butler’s claim that Kerr was malingering. There was no evidence
presented at hearing proving that Petitioner was obligated to report
anything about inmate Kerr to persons at the regional or Raleigh level,
such as Dr. Monguillot, Dr. Selman, or Central Prison Mental Health.
Petitioner never saw Michael Kerr until March 6, 2014. There was no
evidence at hearing that required Petitioner, either by policy or prudence,
to report Kerr's condition to his superiors, based on Petitioner’s
observation and interaction with inmate Kerr on March 6, 2014.

16.

The undersigned finds that the February 21, 2014 email from Capt.
Huneycutt did not alert Petitioner, or anyone else, that inmate Kerr was
experiencing a “decompensating” condition, or other emergent mental
health issue, on or about February 21, 2014. Huneycutt's email does not
reference the “decompensating” term, and Petitioner did not interpret that

 email as describing Kerr as being in a “decompensating” condition. The
February 21, 2014 email was circulated to many other mental health staff,
and there was no evidence presented that any of them viewed the email
as reporting Kerr as being in a decompensating condition.
17.

Evidence produced at hearing showed that Capt. Huneycutt did not
consider Kerr’s condition on February 21, 2014 as emergent, in terms of
mental health, as he did not contact the on-call psychologist specifically
tasked with responding to such situations.

18.

The preponderance of the evidence at hearing showed that the Mental
Health staff at Alexander did not ignore Huneycutt’s February 21, 2014
email. Karis Fitch responded to Huneycutt’s email by asking Dr. Butler to
evaluate inmate Kerr. After Dr. Butler evaluated Kerr, she reported to both
Petitioner and Fitch that Kerr was malingering, and she saw no reason to
send him to Central Prison.

B.
Failed to take any other action to resolve concerns regarding Kerr’s condition,
and failed to report the matter to management after visiting Kerr on March 6, 2014,
19.

The preponderance of the evidence demonstrated that contrary to this
allegation, Petitioner talked with inmate Kerr on March 6, 2014. Upon
viewing Kerr’s condition on March 6, 2014, Petitioner concluded that while
there was no emergent mental health situation, Michael Kerr needed to be
sent to Central Prison. Petitioner instructed Dr. Butler to send Michael Kerr
to Central Prison.

20.

The following day, March 7, 2014, Petitioner began approved leave, and
did not return to Alexander until March 18, six days after Kerr’s death.
During his leave, he was hospitalized for heart problems. No one from
Alexander Correctional contacted Petitioner about inmate Kerr after March
6, 2014, and Petitioner did not see emails sent during the next few days
that discussed a decline in Michael Kerr’s condition.

21.

There was no policy presented at hearing, either Respondent’s policy or a
State Personnel policy, supporting Ms. Vandiford’s testimony that
Petitioner should have continued to check on inmate Kerr while he was on
leave from work. Requiring an employee (Petitioner) to be responsible for
other employees’ (mental health staff or custody staff) actions or inactions,
while he (Petitioner) is on vacation, or in the hospital with heart issues, is
quite unreasonable. Imposition of such a “job requirement” is unfair and
unduly burdensome.

22.

The preponderance of evidence established that inmate Kerr was in a far
different condition on March 12, 2014, the day of his death, then when
Petitioner saw Kerr on the March 6, 2014. Director Solomon confirmed

 that Michael Kerr died of dehydration on March 12, 2014 in transport to
Central Prison. At any point from March 6, 2014 until March 12, 2014,
Alexander Medical Staff could have intervened to address Kerr’s
dehydration, and send Kerr to a civilian medical facility in close proximity
to Alexander Correctional. They did not do so.
23.

As a mental health staff, Petitioner had, at most, only the authority to send
Michael Kerr to Central Prison mental health, some three hours away. In
fact, Petitioner directed Dr. Butler to send Kerr to Central Prison on March
6, 2014.

24.

During the weekend of March 7-9, 2014, Alexander staff psychologist Dara
Sims, worked at Alexander, and saw inmate Kerr at least twice. In several
emails to mental health staff, Sims expressed concern about inmate Kerr’s
condition. Nonetheless, Sims did not “accelerate” a transfer for Kerr, and
was not disciplined other than by a TAPS entry.

25.

Respondent’s dismissal letter to Petitioner tracks very closely, and in part
verbatim, to the allegations in Vandiford’s report finding fault with
Petitioner. (Respondent’s Exhibit 9, Petitioner’s Exhibit 3). T. 598-599.
However, at hearing, Director George Solomon agreed that Ms.
Vandiford’s claim that Petitioner “took no other action” about Inmate Kerr,
as noted in her investigative report, and as noted in the dismissal letter,
was “incorrect.”

26.

Based on the foregoing, the allegation that Petitioner took no other action
regarding Kerr's condition, and failed to report Kerr's condition is both
inaccurate, and unsubstantiated.

C.
Failed to intervene to assist Dr. Butler in addressing inmate Kerr’s decline after
being aware that Kerr did not attend telepsychiatry clinics, and failed to meet with
medical custody staff to review the case and develop a finite treatment plan.
27.

At hearing, Respondent failed to substantiate this allegation by a
preponderance of the evidence. First, Dr. Butler, not Petitioner, was
Michael Kerr's treating doctor, and Petitioner had no direct care
responsibility over Mr. Kerr. Nonetheless, Petitioner assisted in scheduling
additional telepsychiatry sessions for Kerr, and was aware Dr. Butler had
done so. Petitioner was also aware that when it was time for Kerr to
attend those appointments, Kerr would refuse to leave his cell. According
to Respondent’s policy titled, “Inmate’s Right to Refuse Medical
Treatment,” inmates may elect to refuse treatment recommendations.
Such policy explicitly notes that an “inmate is not incompetent simply
because he declines to follow medical advice, however ill-advised that
decision may be.” Based on that policy, there was no way for either

 Petitioner or Dr. Butler to force Michael Kerr to attend the telepsychiatry
sessions, just as Petitioner could not order inmate Kerr to begin taking his
medication.
28.

The fact that Kerr failed to attend such telepsychiatry sessions does not
prove any kind of mental health “decline,” especially given that the
dismissal letter does not state the dates of the incidents concerned, or
specify what sort of “decline” Kerr was supposedly experiencing on those
dates. The undersigned notes that these are allegations based on the
conclusions of an investigator who was a less than credible witness, with
no training or experience in mental health issues, and no professional
education.
Petitioner viewed Kerr’s refusal as the actions of an
uncooperative inmate. The undersigned does not find this conclusion
unreasonable, especially given Dr. Butler’s repeated (and unquestioned by
anyone) reports that Kerr was feigning his symptoms and malingering, and
based on Kerr’s admission of such to Dr. Butler, in order to return to
Central Prison to be near his family.

29.

At hearing, Respondent failed to present any evidence that Kerr did not
have a “finite treatment plan” in place in February and March of 2014. In
responding to Respondent’s Interrogatory No. 2, Petitioner explained that
inmate Kerr already had a treatment plan in place which Petitioner
regularly monitored. (Respondent's Exhibit 25)

30.

Respondent failed to present any evidence that Petitioner should have
taken some affirmative act to alter Kerr’s treatment plan, given the reports
of Kerr’s treating psychologist, Dr. Butler, that Kerr was malingering, and
given that no mental health staff questioned Butler’s reports of Kerr’s
malingering.

B.
Failed to provide proper supervision and assistance to Dr.
Christine Butler, specifically as it relates to encounters with Inmate Kerr.
31.

The undersigned finds this allegation unsubstantiated.
The
preponderance of the evidence proved that Petitioner worked with Dr.
Butler to assist her with inmate Kerr's treatment. The Alexander mental
health staff also collectively worked, though unsuccessfully, to get inmate
Kerr to resume his medication. After Petitioner met Kerr on March 6,
2014, Petitioner directed Dr. Butler to send Kerr to Central Prison. Butler's
failure, and other staff's failure, to act on Petitioner's direction to send Kerr
to Central Prison, was not Petitioner's fault. Director Solomon conceded,
at hearing, that the allegation that Petitioner failed to take any action to
assist Butler in “Kerr’s decline,” was “incorrect.” Finally, Respondent failed
to present any evidence that Petitioner failed, or refused to assist, Dr.
Butler when she sought Petitioner’s assistance in treating Kerr.

 C.
Failed to take corrective action regarding Dr. Butler's tardy
documentation. There is no evidence that you initiated corrective action through
coaching, TAP entries, or disciplinary action.
32.

The preponderance of the evidence proved that Dr. Butler was significantly
behind in documenting the care of her patients, such as Michael Kerr, and
Petitioner knew that it. However, Petitioner did not know the extent to
which Butler was behind in her documentation of care until after Mr. Kerr's
death. The preponderance of the evidence showed that there was
inadequate staffing, and high caseloads at Alexander which affected the
ability of staff, particularly mental health staff and Dr. Butler, to document
treatment. As a result, the failure to document care was a problem
throughout Alexander Correctional. Butler’s caseload was around 70-80
patients, while the Outpatient Mental Health staff caseload was over 300.
Petitioner and Karis Fitch planned to address the mental health staff
documentation problem by designating the week of April 7, 2014 for Butler,
and other mental health staff, to “catch up” on their documentation, and
not schedule any appointments. Petitioner's failure to discipline Dr. Butler
for tardy documentation, before this grace period, was not unreasonable
given Butler's heavy caseload and the existing circumstances.

33.

Respondent’s allegation that Petitioner failed to take any corrective action
regarding Butler’s documentation issues was inaccurate. The evidence at
hearing established that while Petitioner did not document any counseling
sessions with Dr. Butler about her tardy documentation issues, Petitioner
counseled Dr. Butler more than once about her failure to document her
mental health treatment of inmates.

Step Two: Did Petitioner’s Actions Constitute Gross Inefficiency?
34.

In accordance with Warren, the undersigned confines its review to the
above substantiated allegation against Petitioner, which is that Dr. Butler
was behind on her documentation, that Petitioner knew about it, and did
not correct the problem

35.

In NC DOC v. McKinney, 149 N.C. App. 605; 561 S.E.2d 340 (2002), the
Court of Appeals held:

For this Court to accept petitioner's argument that respondent's failure to
file the necessary DAPP-1Bs created the potential for death or serious
bodily injury, it must also logically follow that if respondent had submitted
the DAPP-1Bs, the Parole Commission would have acted in some manner
that would have stayed the creation of the potential for death or serious
bodily injury.
Accordingly, to show gross inefficiency in this case, Respondent DPS was required to

 show that: (a) Petitioner’s failure to correct Dr. Butler’s documentation either caused or
created the potential for death or serious bodily injury to Kerr, and (b) had Petitioner
taken corrective action against Dr. Butler, his action would have set some process in
motion that would have prevented that risk, i.e. Michael Kerr's tragic death. Id.
36.

Applying the above case law to this case, there is insufficient evidence to
prove that Petitioner engaged in grossly inefficient job performance
justifying his termination. First, Dr. Butler repeatedly and consistently
reported that Kerr’s actions were that of a malingerer. She reported this
repeatedly to Petitioner and to senior members of the Alexander Mental
Health Staff. There was no evidence presented at hearing showing that
had Petitioner taken corrective action against Dr. Butler for tardy
documentation, and had Dr. Butler timely and properly documented her
encounters with Kerr, that documentation would have shown conclusions
different from these reports, i.e., that the documentation would have
reflected a conclusion that Kerr was not malingering. Indeed, based on
the testimony, all evidence suggests the contrary, that timely
documentation would have reflected her reported conclusions of
malingering.

37.

In addition, Respondent presented no witness who tendered a
professional or expert opinion that Dr. Butler was wrong in her diagnosis of
inmate Kerr. Ms. Vandiford merely kept repeating that the inmate died.
Kuhns opined that Kerr’s actions suggested a finding of mental health
issues. However, no one testified, especially in an expert capacity, that
Dr. Butler’s diagnosis was inaccurate.

38.

The same case applies in the creation of risk situation. There was no
evidence presented, and no one testified, that Petitioner's failure to take
corrective action against Dr. Butler for tardy documentation, and Dr.
Butler’s faulty documentation actually created a risk, or death, or serious
bodily injury for Michael Kerr. Nor did anyone testify that proper and timely
documentation of Dr. Butler’s conclusions would have removed that risk.

39.

Proper documentation is essential for continuity of care. However,
Respondent failed to prove by a preponderance of evidence that
Petitioner’s failure to correct Dr. Butler’s poor documentation, standing
alone, created risk, or death, or serious bodily harm to Michael Kerr.
Clearly, the evidence indicated poor job performance in supervising Dr.
Butler, but Petitioner was dismissed for gross inefficiency, not
unsatisfactory job performance.

40.

Accordingly, the undersigned concludes that Respondent DPS failed to
meet its burden of proof in proving that Petitioner engaged in grossly
inefficient job performance regarding Petitioner’s failure to correct Butler’s
documentation, or in failing to supervise Dr. Butler properly regarding

 Butler's treatment of Michael Kerr.
41.

Even if Petitioner’s action, or inaction, in failing to correct Butler’s
documentation, and failing to supervise Butler were considered grossly
inefficient job performance, Petitioner’s action, or inaction, did not
constitute just cause for dismissal when the mitigating factors are
considered.

42.

Those mitigating factors are: (1) Petitioner’s discipline-free employment
history with Respondent, (2) Petitioner’s excellent performance reviews as
recorded in his performance evaluations, (3) Petitioner was absent from
Alexander Correctional for six days before, and after inmate Kerr’s death,
(4) Inmate Kerr’s condition was substantially different when Petitioner
spoke with Kerr on March 6, 2014, and when Kerr died on March 12, 2014,
(5) Other staff psychologists, such as Dara Sims, and custodial staff
personally observed Kerr for six days before Kerr died, but failed to take
any action to transfer Kerr to a medical facility, or another mental health
facility, (6) On March 8, 2014, custodial staff and nursing staff failed to
provide additional medical or mental health treatment after treating Kerr for
a Code Blue, (7) For months before Kerr’s tragic death, the mental health
staff at Alexander repeatedly reported to the regional level that they were
overworked and overloaded. However, nothing substantive was done over
a protracted period of time. The fact that other DPS correctional facilities
suffered staffing issues does not diminish the staffing issues at Alexander
and the difficulties staff encountered, (8) Director Solomon acknowledged
the entire Alexander facility was behind on documentation. Given
Solomon’s agreement that the entire facility was not simply being
negligent, and the pervasive nature of the untimely documentation, the
undersigned cannot place blame for Michael Kerr's death on the Petitioner
alone. (9) Further, Petitioner did make efforts, albeit unsuccessful ones, to
get Dr. Butler to catch up on documentation.

43.

In addition to the above mitigating factors, especially the factor that
Petitioner was absent from Alexander six days before and after Kerr's
death, this case also presents a significant issue of fair and equitable
application of disciplinary action. In Bulloch v. NC Department of Crime
Control and Public Safety, 732 S.E.2d 373; 2012 N.C. App. LEXIS 1135
(December 2012), the Court of Appeals held that “’[i]n addition to the
analysis and factors’ from other North Carolina cases” it was appropriate
to review just cause cases under the so-called “Seven Factors of Just
Cause” enunciated in In re Enterprise Wire Co. & Enterprise Indep. Union,
46 Lab. Arb. Rep. (BNA) 359 (Mar 28, 1966).

44.

Among the seven factors set forth in Enterprise Wire is Number 6: “Was
the employer’s treatment even‐handed and non‐discriminatory?” Among
the stated factors to consider when reviewing Number 6 is:

 How does it [the specific employee’s conduct] compare with what has
been done in other similar circumstances; will this employee be receiving
the same discipline as others who violated this rule or standard? If not,
can you justify why?
45.

On this issue, staff psychologist Dara Sims saw Michael Kerr more than
once after Petitioner left Alexander on approved leave on March 6, 2014,
but did not intervene to accelerate an immediate transfer. Sims, of course,
was not Dr. Butler's supervisor. A preponderance of the evidence proved
that Kerr experienced a significant “decline,” over the next few days; yet,
Kerr was not transferred until the day of his death.

46.

The undisputed evidence established that Michael Kerr died of
dehydration. Medical Staff could have intervened on this medical issue at
any time, but they did not; even though medical staff was authorized to
send Kerr for medical treatment at a hospital approximately 30 minutes
away. Since Petitioner was not present at Alexander after March 6, 2014,
he cannot be blamed for that failure.

FINAL DECISION
Based upon the foregoing Findings of Fact and Conclusions of Law, and the
preponderance of the evidence at hearing, the undersigned hereby REVERSES
Respondent’s decision to dismiss Petitioner. Respondent shall retroactively reinstate
Petitioner to the same or similar position held prior to his demotion, with all back pay,
and benefits which he would have been entitled to receive since his demotion on May 8,
2014.
Petitioner is hereby awarded Attorney’s Fees, as provided by law, after
Petitioner’s attorney submits a fee petition to the Office of Administrative Hearings
detailing his attorney’s fees in this case.
NOTICE
THIS IS A FINAL DECISION issued under the authority of N.C. Gen. Stat. §
150B-34.
Under the provisions of North Carolina General Statutes § 126-34.02(a): “An
aggrieved party in a contested case under this section shall be entitled to judicial review
of a final decision by appeal to the Court of Appeals as provided in G.S. 7A-29(a). The
procedure for the appeal shall be as provided by the rules of appellate procedure. The
appeal shall be taken within 30 days of receipt of the written notice of final decision. A

 notice of appeal shall be filed with the Office of Administrative Hearings and served on
all parties to the contested case hearing.”
In conformity with the Office of Administrative Hearings’ Rules, and the Rules of
Civil Procedure, N.C. General Statute 1A-1, Article 2, this final decision was served on
the parties the date it was placed in the mail as indicated by the date on the Certificate
of Service attached to this final decision.
This 19th day of June, 2015.

 CERTIFICATE OF SERVICE
The undersigned, hereby certifies that a copy of the foregoing FINAL DECISION,
is DEEMED SERVED upon the following persons the date it is enclosed in a wrapper
and placed in an official depository of the United States Postal Service, as evidenced by
the postmark date of the wrapper, addressed as follows:

Michael Byrne
Wachovia Capital Center
Suite 1130
150 Fayetteville Street
Raleigh, NC 27601
ATTORNEY FOR PETITIONER
Tamika Henderson
North Carolina Department of Justice
Post Office Box 629
Raleigh, NC 27602
ATTORNEY FOR RESPONDENT
This the 19TH day of June, 2015.