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Labor & Employment – Public Employees – Termination – Just Cause – Customer Interaction – Failure to Report

Barron v. Eastpointe Human Services LME (Lawyers Weekly No. 011-102-16, 33 pp.) (Linda McGee, C.J.) Appealed from Greene County Superior Court (Paul Jones, J.) N.C. App.

Holding: Petitioner’s dismissal was supported by his non-professional personal cell-phone communications with an agency customer and a failure to report that customer’s complaint.

We reverse the superior court’s decision, which reversed the Office of Administrative Hearings’ decision to uphold petitioner’s dismissal.

The respondent-agency oversees services related to mental health, intellectual development disabilities, and addiction in 12 eastern North Carolina counties. Petitioner was respondent’s housing director.

A consumer of housing services accused petitioner of touching her sexually without her consent and of promising her furniture if she entered into a relationship with him. After the alleged touching and before the consumer made the accusation, petitioner used his personal cell phone to ask for and receive photos of the consumer.

Once the consumer made the accusation, petitioner violated agency policy by failing to report it immediately. He did make a report when, several months later, the consumer started texting him, complaining about his inappropriate interaction with her. The agency’s pre-dismissal letter cited the accusation, petitioner’s failure to report it, and the original, inappropriate cell phone communications as bases for petitioner’s dismissal.

An administrative law judge upheld the agency’s dismissal of petitioner, but the superior court reversed.

Based on the testimony of the consumer, petitioner’s subordinate (to whom the consumer made the complaint), petitioner’s supervisor, and even petitioner himself, as well as pictures and texts from petitioner’s personal cell phone, there was competent, material and substantial evidence that petitioner (1) touched the consumer sexually without her consent, (2) engaged in inappropriate text messaging with the consumer, and (3) failed to report at least some of the consumer’s allegations against him until matters escalated. Accordingly, the superior court erred by concluding that the ALJ’s decision was “[u]nsupported by substantial evidence,” “[a]rbitrary, capricious, or an abuse of discretion,” and that there was “no rational basis in the evidence” for the agency to dismiss petitioner for just cause.

Petitioner argued to the superior court that his supervisor headed up the investigation and was biased against him after speaking to the consumer. Petitioner also argued that his supervisor was the one who ultimately recommended that he be dismissed.

However, the mere fact that petitioner’s supervisor was familiar with the facts of his case and acted as investigator and, perhaps to some extent, adjudicator on the matter was not a per se violation of due process. Even assuming arguendo that the supervisor may have come to certain conclusions about petitioner’s situation before his pre-dismissal conference, petitioner does not assert that those conclusions were based on anything other than the facts the supervisor learned during her investigation. Accordingly, petitioner has not demonstrated that the supervisor’s fulfilling her role on the investigative team and possibly recommending his dismissal demonstrated that she possessed a disqualifying personal bias in any way.

Petitioner also argued to the superior court that the agency’s investigative team was made up of an “untrained, inexperienced group of females … [who] showed bias against” him during the investigation. As a preliminary matter, it is unclear who at the agency – other than petitioner’s supervisor (the agency’s Chief of Clinical Operations), the agency’s Director of Corporate Compliance and Human Resources, and the agency’s Director of Grievance and Appeals – would have been more qualified to oversee the investigation.

We also do not believe that the investigative team consisting of a “group of females” necessarily establishes bias in the present case. A person’s gender does not equate to having a disqualifying personal bias. Without more, petitioner did not establish that the investigative team possessed a disqualifying personal bias in any way.

Finally, in light of the robust defense petitioner has been able to wage at all points since his dismissal, his full participation in the investigation, the numerous instances of oral and written notice provided to him, the isolated nature of the allegation, and given that the language in the dismissal letter’s ground 2 (“You confirmed you communicated with this consumer on your personal cell phone … [and it] was determined that some of the communications were not work related or professional.”) is limited to determining the inappropriate nature of specific conduct admitted to by petitioner, it would strain credulity for this court to hold that ground 2 was not described with sufficient particularity so that petitioner would know precisely what acts or omissions were the basis of his discharge upon receipt of his dismissal letter.

Reversed.


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