KELVIN J. LEEKS, Petitioner v. CUMBERLAND COUNTY MENTAL HEALTH DEVELOPMENTAL DISABILITY AND SUBSTANCE ABUSE FACILITY, Respondent
Case Details
- Citation
- 154 N.C. App. 71
- Judge(s)
- Chief Judge EAGLES and THOMAS concur.
- Procedural Posture — the stage the case had reached
- appeal
- State
- North Carolina
- Circuit
- 4th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The court affirmed the employer's termination of the employee for falsifying medical records and pre-writing medication administration notes without actually administering medications, finding this constituted unacceptable personal conduct under state law. The court also rejected the employee's disability discrimination claim.
Excerpt
KELVIN J. LEEKS, Petitioner v. CUMBERLAND COUNTY MENTAL HEALTH DEVELOPMENTAL DISABILITY AND SUBSTANCE ABUSE FACILITY, Respondent No. COA02-40 (Filed 19 November 2002) 1. Public Officers and Employees— dismissal — findings Certain of the trial court’s findings had a rational basis in the evidence in an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered. 2. Public Officers and Employees— dismissal — falsification of medical records — unacceptable personal conduct In an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered, the trial court did not err by concluding that pre-writing notes describing medications not administered constituted unacceptable personal conduct. The North Carolina Administrative Code includes job-related conduct which violates state or federal law as improper personal conduct; falsification of medical records is a violation of state law. 3. Public Officers and Employees— dismissal — findings—not supported by evidence — no reversible error In an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered, some of the trial court’s findings concerning petitioner’s sleep disorder were contrary to evidence in the whole record, but there was no reversible error because petitioner failed to prove a claim of disability discrimination. 4. Public Officers and Employees— dismissal — disability discrimination — not proven In an action arising from the dismissal of petitioner as an assistant at a youth home for recording medications which were prepared but not administered, the trial court did not err by con-eluding that petitioner failed to prove that his termination resulted from disability discrimination where petitioner failed to fully inform respondent of his condition, failed to prove that the depression and sleep disorder qualified as physical or mental impairment, and did not show that either condition is permanent or long-term. Appeal by petitioner from order entered 6 June 2001 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 28 October 2002. Browne, Flebotte, Wilson & Horn, P.L.L.C., by Joy Rhyne Webb, for petitioner-appellant. Douglas E. Canders for respondent-appellee. TYSON, Judge Kelvin J. Leeks, (“petitioner”), appeals from an order which affirmed the final agency decision of the Cumberland County Mental Health Development Disabilities and Substance Abuse Facility, (“respondent”), terminating petitioner’s employment. We affirm. I. Facts Petitioner was rehired as a Youth Program Assistant III by respondent in December 1995 after having worked for respondent from 1981 to 1993. Petitioner worked the night shift at Borden Heights Group Home, which housed emotionally disturbed and dangerous youths. Petitioner began suffering from depression, migraines, and a sleeping disorder. His doctor advised that he stop working the night shift. Petitioner requested a lateral transfer from the night shift to a day shift several times, beginning in May 1996. Those requests were denied. On 22 September 1997, petitioner received a written warning that he had engaged in unacceptable personal conduct, listing: (1) not conducting proper bed checks, (2) not monitoring clients, and (3) not performing duties assigned to the lead-staff worker on a shift. On 25 February 1998, petitioner prepared, but failed to timely administer, medications for seven of the youths. Petitioner recorded the medications by writing the date, name of medication, the number of pills administered to each client, and whether the medication was taken orally on the Medication Administration Record, (“MAR”). Petitioner did not record the time or initial the MAR. Around 9:10 a.m., Everett Mitchell, petitioner’s supervisor, sent petitioner home. Petitioner arrived home and fell asleep. He awoke in the afternoon and questioned whether he had administered the medications. He called the group home, and related that he had “dreamed” the medication had not been administered. Petitioner was assured by another worker, Christopher Corders, that the medications had been given. Corders relied upon petitioner’s partially completed MAR. Petitioner returned to the group home concerned that he had forgotten to administer the medication. Petitioner checked the medicine cabinet and discovered the medication that should have been distributed that morning. Petitioner contacted Supervisor Mitchell, and completed an incident report and significant event note for each client. Petitioner called the pharmacist for further instructions concerning the medication. The medication was administered according to the pharmacist’s instructions, and petitioner signed the records at the time of administration. A pre-dismissal conference was held on 23 April 1998, followed by a subsequent meeting on 27 April 1998. On 30 April 1998, petitioner was terminated from his employment. On 28 July 1998, petitioner filed a petition for a contested case hearing with the Office of Administrative Hearings. Administrative Law Judge Morrison, (“AU”) held the hearing on 15 December 1998 and 17 December 1998. The ALT filed a recommended decision on 11 February 1999 which upheld the decision of the respondent’s director to terminate petitioner and found that respondent had just cause to terminate. The AU also recommended that petitioner’s allegations of disparate treatment and respondent’s failure to accommodate a handicapping condition be dismissed. The State Personnel Commission, (“Commission”) considered the AU’s recommended decision on 17 and 18 June 1999, and issued a recommendation to respondent to find and conclude that the AU’s decision be rejected and that petitioner met his burden of proving that respondent lacked just cause to dismiss plaintiff for personal misconduct. The Commission found that petitioner’s actions gave respondent just cause to take disciplinary action on the basis of inadequate job performance. The Commission recommended that (1) petitioner be reinstated to his former position, (2) petitioner receive back pay and all other benefits of employment during the period he was not working, (3) respondent take appropriate disciplinary action against petitioner, and (4) petitioner be allowed to request attorney’s fees. On 15 September 1999, respondent issued its final decision concluding that there was “just cause” for petitioner’s termination. Respondent dismissed petitioner’s claims of disparate treatment and failure to accommodate his handicapping condition. An amended final decision was issued on 5 November 1999. Petitioner petitioned for judicial review on 12 October 1999. Judge Cashwell heard arguments and affirmed the final decision of respondent. Petitioner appeals. II. Issues The issues are (1) whether substantial evidence in the record supports the trial court’s findings of fact that petitioner intentionally pre-wrote MARs and then called respondent after dreaming that he did not dispense the medicine, (2) whether petitioner’s pre-writing MARs constitutes a falsification of medical records, a violation of state law, and unacceptable personal conduct, (3) whether substantial evidence in the record supports the trial court’s findings of fact of petitioner’s disability, and (4) whether petitioner sufficiently alleged a claim for disability discrimination. III. Standard of Review Chapter 150B of the North Carolina General Statutes, the North Carolina Administrative Procedure Act, governs trial and appellate court review of administrative agency decisions .... Although G.S. § 150B-51(b) lists the grounds upon which a court may reverse or modify an administrative agency decision, the proper standard of review to be employed by the court depends upon the nature of the alleged error. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). If a petitioner asserts that the administrative agency decision was based on an error of law, then “de novo” review is required. Id... . On the other hand, if a petitioner asserts that the administrative agency decision was not supported by the evidence, or was arbitrary and capricious, then the court employs the “whole record” test. Id. .. . The standard of review for an appellate court upon an appeal from an order of the superior court affirming or reversing an administrative agency decision is the same standard of review as that employed by the superior court. In re Appeal of Ramseur, 120 N.C. App. 521, 463 S.E.2d 254 (1995). Dorsey v. UNC-Wilmington, 122 N.C. App. 58, 62-63, 468 S.E.2d 557, 559-60 (1996). In ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 483 S.E.2d 388 (1997), our Supreme Court stated, “[t]he appellate court examines the trial court’s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.” 345 N.C. at 706, 483 S.E.2d at 392 (citations omitted.) The “whole record” test allows a reviewing court to determine whether an administrative decision has a rational basis in the evidence. Id. at 706-07, 483 S.E.2d at 392 (citations omitted). IV. Findings of Fact Seven and Eight Petitioner argues that the respondent’s findings of fact seven and eight, later adopted by the superior court, were not supported by substantial evidence. Finding seven states, “[p]etitioner called the group home on the afternoon of February 25, 1998 advising that he had had a ‘dream’ that he had not given the medications that morning.” Petitioner alleges that he did much more than inform respondent of a dream. Petitioner testified that he called the home, drove to the home, checked the medicine cabinet, discovered the truth of his mistake, reported the incident, and called and followed the instructions of the pharmacist. Petitioner’s testimony is corroborated by other witnesses, and clearly shows that petitioner did more than just “call[] the group home.” This evidence does not contradict, but supplements the finding that petitioner called the group home and told them about his dream. Testimony of other witnesses supports this statement. The trial court’s finding “has a rational basis in the evidence.” Id. Finding eight states that petitioner intentionally pre-wrote the client medication charts and failed to administer medications to seven youths who were to receive their medication before leaving for school that morning. Petitioner argues that the substantial evidence does not show that he pre-wrote all of the medication notes. Petitioner admitted partially pre-writing the medication notes. He did not record the time of administration nor initial the record. Petitioner contends that the MAR was not complete until the MAR was signed and medication administered with the time noted and that he did not violate respondent’s policy by partially pre-writing the notes. Petitioner asserts that he simply forgot to administer the medications, and this omission was not intentional. Petitioner’s testimony merely explains finding eight. This evidence does not refute the fact that petitioner intentionally partially pre-wrote false medication notes and failed to dispense the medications. There is substantial evidence in the record to support finding eight. V. Conclusions of Law Five and Six Petitioner contends that conclusions of law five and six are erroneous as a matter of law, because the actions alleged are not improper personal conduct and are not supported by substantial evidence. N.C.G.S. § 126-35 (2001) states “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reason, except for just cause.” “Just cause” can be established by unacceptable job performance or unacceptable personal conduct. 25 NCAC lJ.0604(c) (2002). Title 25 of the North Carolina Administrative Code defines unacceptable personal conduct as: (1) conduct for which no reasonable person should expect to receive prior warning; or (2) job-related conduct which constitutes a violation of state or federal law; ... (4) the willful violation of known or written work rules; ... or (6) the abuse of client(s) .... 25 NCAC U.0614(i) (2002). This Court delineated the difference between unacceptable job performance and unacceptable personal conduct and held that termination for engaging in the latter category is appropriate for “ ‘those actions for which no reasonable person could, or should, expect to receive prior warnings.’ ” Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 679, 443 S.E.2d 114, 120-21 (1994) (quoting State Personnel Manual, Sec. 9 at 3; 25 NCAC lJ.0604(b) (1984) (amended March 1994)). The State Personnel Manual lists, “careless errors, poor quality work, untimeliness, failure to follow instructions or procedures, or a pattern of regular absences or tardiness[]” as examples of unsatisfactory job performance. Id. at 679, 443 S.E.2d at 121 (citing State Personnel Manual, Sec. 9, at 8.1-8.2). Unacceptable personal conduct includes “insubordination, reporting to work under the influence of drugs or alcohol, and stealing or misusing State property.” Id. Conclusions of law five and six hold that petitioner intentionally pre-wrote medication notes describing client responses to medications not administered. The court concluded this action was a falsification of medical records done willfully and intentionally, that jeopardized the care of the clients, and constituted unacceptable personal conduct. Petitioner contends that he did not willfully falsify medical records, but instead partially pre-wrote the medication notes and neglected to administer the medications. Petitioner argues that the notes were not false until he neglected to give the medications. Petitioner cites testimony of Emile Archambault, manager of another group home, who admitted pre-writing medication notes, to support his argument that such conduct was common and did not constitute “improper personal conduct.” Petitioner asserts that if his conduct was reprehensible, it only rose to the level of unsatisfactory job performance. Termination for “just cause” due to unsatisfactory job performance requires the employer to issue prior warnings before termination. Parks v. Dept. of Human Resources, 79 N.C. App. 125, 132, 338 S.E.2d 826, 829, disc. review denied, 316 N.C. 553, 344 S.E.2d 8 (1986). The agency must give the employee at least “one or more written warnings followed by a warning or other disciplinary action which notifies the employee that failure to make the required performance improvements may result in dismissal.” 25 NCAC lJ.0605(b) (2002). Petitioner received prior warning on 22 September 1997 which cited petitioner for improper personal conduct in not performing his duties as required. This warning was insufficient to terminate petitioner’s employment for “just cause” on the grounds of job performance. If petitioner’s conduct rose to the level of improper personal conduct, his employment could be terminated without any warning. Petitioner cites Parks to support his contention that his actions did not rise to “improper personal conduct.” In Parks, a health care technician failed to report resident abuse. Id. at 127, 338 S.E.2d at 827. This Court held that the negligence was a basis for unsatisfactory job performance but not improper personal conduct. Id. at 134, 338 S.E.2d at 830. Similarly, this Court in Amanini found that a terminated employee’s actions, leaving his nurses’ station without notifying his supervisor and abandoning his patients, fell into the category of unsatisfactory job performance. Amanini, 114 N.C. App. at 680, 443 S.E.2d at 121. In both cases, this Court found the employees’ behavior insufficient to terminate on the grounds of improper personal conduct. The facts at bar are distinguishable and are sufficient to terminate plaintiff for improper personal conduct under the current statute. After Parks and Amanini were decided, the N.C. Administrative Code was amended to add “job-related conduct which constitutes a violation of state or federal law” as grounds for termination for improper personal conduct. 25 NCAC lJ.0614(i)(2) (2002). Respondent alleges that petitioner’s actions in pre-writing the medication notes violated 10 NCAC 14V.0209(c)(4) (2002), which requires that “[a] Medication Administration Record (MAR) of all drugs administered to each client must be kept current. Medications administered shall be recorded immediately after administration.” This administrative rule is authorized in Chapter 122C, under which the North Carolina Department of Health and Human Services regulates the licensing and operation of facilities including the group home where petitioner worked, and has the effect of law. Gainey v. N.C. Dept. of Justice, 121 N.C. App. 253, 259; 465 S.E.2d 36, 41 (1996) (citation omitted). Petitioner failed to administer the medications and falsely reported giving them to the clients. The actions of the employees in Parks and Amanini were omissions to act, not affirmative acts. Petitioner knowingly and falsely pre-wrote the medication records. While petitioner’s failure to administer the medications is negligence, his pre-writing the MARs is a “falsification of medical records,” a job-related violation of state law. In addition to intentionally filling out medication administration records without actually administering the medication, the respondent and superior court concluded that petitioner also “pre [wrote] high risk intervention[, (“HRI”),] notes describing the client’s responses to taking medications.” This conclusion is supported by substantial evidence. The record contains the HRI reports from 25 February 1998 regarding patients under petitioner’s care. Petitioner’s reports contain substantially the same note on every HRI. In the section titled “Narrative Summary of Activity and Client Progress,” petitioner wrote “[s]taff monitored and assisted client in taking his AM. medication. Staff prepared and instructed client in taking said medication. Client evidenced progress toward overall goal. Staff praised client after he took his medication.” (Emphasis added). With respect to one HRI report, the following dialogue occurred at the hearing: Q. If you’ll go about four pages in, [petitioner], where you have the HRI note. A. Yes, sir. Q. In the middle of the page it says, “Staff monitored and assisted client in taking his medication.” A. The same generic note, yes, sir. Q. “Staff prepared and instructed client in taking medication. Client evident [sic] progress towards overall goal. Staff praised client after he took his medication.” A. Uh-huh. Q. That’s a false statement, isn’t it? A. Yes, that’s— Q. The client had got no medication, isn’t that true? A. Yes, sir. Q. And you made that statement and signed it yourself, is that correct? A. That was a prewritten statement, yes, sir. Q. Okay. And it’s false. A. Yes, that one Is. Also, respondent asked petitioner if he “intentionally fill[ed] out these HRI notes prior to the time of the event?” Petitioner answered, “[y]es.” Respondent’s witness, Dr. Martin, elaborated on the possible dramatic consequences of falsely reporting drug administration. Finding this evidence credible, the trial court did not err in concluding that petitioner’s acts established unacceptable personal conduct. VI. Findings of Fact Seventeen through Twenty Petitioner argues that findings of fact seventeen through twenty are not supported by substantial evidence and that the trial court erred by concluding that petitioner failed to prove he was terminated for reasons associated with his handicapping condition. Findings of fact seventeen through twenty state: 17.
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