              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-556

                                Filed: 15 March 2016

Caldwell County, No. 14 OSP 5988

SHAWN BLACKBURN, Petitioner,

             v.

N.C. DEPARTMENT OF PUBLIC SAFETY, Respondent.


      Appeal by petitioner from the Final Decision entered 23 January 2015 by

Administrative Law Judge Selina M. Brooks in the Office of Administrative Hearings.

Heard in the Court of Appeals 3 November 2015.


      Merritt, Webb, Wilson & Caruso, PLLC, by Joy Rhyne Webb, for petitioner-
      appellant.

      Attorney General Roy Cooper, by Assistant Attorney General Tamika L.
      Henderson, for respondent-appellee.


      ZACHARY, Judge.


      Shawn Blackburn (petitioner) appeals from the decision of the Administrative

Law Judge (ALJ) upholding his termination as a correctional officer employed by the

North Carolina Department of Public Safety (DPS or respondent) for grossly

inefficient job performance. On appeal, petitioner argues that the ALJ erred by

denying his motion in limine to exclude certain evidence from the hearing; that some

of the ALJ’s findings of fact are not supported by the evidence; and that the ALJ erred

by concluding that respondent established by a preponderance of the evidence the
                      BLACKBURN V. N.C. DEP’T OF PUB. SAFETY

                                   Opinion of the Court



existence of just cause to terminate petitioner. We are aware that our correctional

officers perform a difficult job, and we are sympathetic to the challenges faced by

correctional officers in a prison setting. Nonetheless, after careful review of the facts

and the relevant law, we conclude that the ALJ did not err and that the decision of

the ALJ should be upheld.

                                        I. Background

      Petitioner was hired by DPS as a correctional officer in 1999, was promoted

through the ranks, and in March 2014 petitioner was a Correctional Captain at DPS’s

Alexander Correctional Institution (“Alexander”). As a Correctional Captain,

petitioner was responsible for interpreting, developing, and following prison

procedures, as well as reviewing the work performed by others to ensure its

compliance “with the goals and the missions of the . . . Department of Public Safety,”

including DPS’s goals of ensuring “the safety of the inmates” and “the humane

confinement of inmates.” On 8 and 9 March 2014 petitioner was, in addition to being

a Correctional Captain, Alexander’s “officer in charge” or “OIC.” Petitioner testified

that the OIC was the person who was “left in charge of the daily running of the

institution and the safety and welfare of the staff and the inmates at that institution.”

      Petitioner’s dismissal arose from the circumstances surrounding the death of

Michael Kerr, an inmate housed at Alexander in March 2014. Mr. Kerr had a history

of mental illness for which he had received medication. In February 2014 Mr. Kerr



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was housed “in ‘administrative segregation’ or, as it is better known, solitary

confinement[,]” Davis v. Ayala, __ U.S. __. __, 135 S. Ct. 2187, 2208, 192 L. Ed. 2d

323, __ (2015), initially for mental health observation. At this time Mr. Kerr was

“placed on nutraloaf,” which petitioner described as “a management meal that is

given to inmates for disciplinary reasons to manage their behavior.” At first Mr. Kerr

was given milk with the nutraloaf, but on 8 March 2014 petitioner ordered that Mr.

Kerr no longer receive milk, because Mr. Kerr had used the milk cartons to stop up

the toilet in his cell. Pursuant to petitioner’s orders, there was a sign on Mr. Kerr’s

cell reading “Do not give him milk per Captain Blackburn.” The sign remained in

place until Mr. Kerr’s death, and was visible to staff on all shifts.

      Alexander’s “Medical Emergency Response Plan” defines a “Code Blue” as “a

medical emergency . . . requiring the immediate assistance of medical personnel.” On

8 March 2014 Sergeant Johnson, a correctional officer at Alexander, called a Code

Blue for Mr. Kerr because Mr. Kerr was not responding to correctional staff. When

petitioner arrived at Mr. Kerr’s cell, medical personnel were present and Mr. Kerr

was lying on his bed in leg restraints and metal handcuffs. After medical personnel

determined that Mr. Kerr did not require immediate medical treatment, petitioner

allowed Mr. Kerr’s leg restraints to be removed, but ordered that Mr. Kerr’s handcuffs

should not be removed until Mr. Kerr walked to the door and asked for their removal.




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                                   Opinion of the Court



      Mr. Kerr remained in handcuffs from the time that the Code Blue was called

until his death on 12 March 2014. Petitioner admitted that after he ordered on 8

March 2014 that Mr. Kerr no longer receive milk, the only way Mr. Kerr could obtain

any fluid would be to use his handcuffed hands under the faucet. On 9 March 2014,

petitioner entered Mr. Kerr’s cell with Ms. Sims, Alexander’s staff psychologist.

Although Mr. Kerr did not speak or sit up while petitioner and Ms. Sims were in Mr.

Kerr’s cell, petitioner left Mr. Kerr in handcuffs. Ms. Sims asked petitioner if a Code

Blue should be called and petitioner said no. At the end of petitioner’s shift, he

completed a report on the day’s events, called an “OIC report.” Petitioner failed to

note in his OIC reports for either 8 or 9 March 2014 that a Code Blue had been called

for Mr. Kerr or that Mr. Kerr was still in handcuffs at the end of the 9 March 2014

day shift.

      Petitioner was not at work on 10 or 11 March 2014. When petitioner returned

to work on 12 March 2014, he directed Sergeant Johnson to prepare Mr. Kerr for

transport to Central Prison. When Sergeant Johnson entered Mr. Kerr’s cell, he

found Mr. Kerr’s handcuffs filled with embedded fecal matter, and saw cuts and

abrasions on Mr. Kerr’s wrists resulting from wearing the mechanical cuffs for an

extended period of time. Petitioner directed his staff to use bolt cutters to remove the

handcuffs, and Mr. Kerr was transported to Central Prison. Mr. Kerr was pronounced




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                                  Opinion of the Court



dead upon his arrival at Central Prison. The coroner determined that Mr. Kerr’s

cause of death was dehydration.

      Following Mr. Kerr’s death, DPS conducted an investigation which included

interviewing witnesses, including petitioner, and reviewing documents. DPS

conducted a pre-disciplinary conference with petitioner on 4 April 2014, and on 7

April 2014 petitioner received a letter from DPS informing him that he was being

terminated from employment for grossly inefficient job performance, and stating that:

             . . . Management has decided to dismiss you, effective April
             7, 2014 based on Grossly Inefficient Job Performance[.] . . .
             This decision was made after a review of all of the
             information available, including prior disciplinary action,
             the current incident of Grossly Inefficient Job
             Performance, and the information you provided during the
             pre-disciplinary conference. The specific conduct reason(s)
             for your dismissal [are] as follows:

             On March 18, 2014, you were interviewed as part of [an
             investigation] . . . into the death of inmate Michael Kerr.
             You were also interviewed on April 1, 2014 as part of an
             internal investigation into this same matter. During both
             interviews, you stated that you were notified on March 8,
             2014 of a Code Blue . . . for inmate Kerr. . . . You stated
             you told inmate Kerr to remain on the bed until all staff
             were out of the cell and the door was secured. You indicated
             that once the door was secured, you ordered inmate Kerr to
             come to the door to take off the restraints and he refused.
             You further indicated that you informed Sergeant Johnson
             to have staff check Kerr every 15 minutes and offer Kerr
             the opportunity to have the restraints removed. You also
             stated, “Due to him being a segregated inmate, I was not
             going to risk staff safety by removing the handcuffs while
             staff was in his cell. He had to be behind a secured door.” .
             ..


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Records indicate that you also worked on March 9, 2014. .
. . You indicated that you were aware of [Mr. Kerr’s] mental
state and you had notified mental health staff.

Investigators determined that inmate Kerr remained
handcuffed for a period of five (5) days based on your
instructions to staff to have [the] inmate remain cuffed
until he was willing to submit to removal of the restraints
through the cell door.

At no time during your assigned working hours on March
8, 2014 did you communicate the status of inmate Kerr, his
refusal to submit to handcuff removal, or the fact that
inmate Kerr’s condition was deteriorating to the Assistant
Superintendent for Custody and Operations.

You failed to Initiate an Incident report for a documented
Code Blue Emergency.

According to the Division of Prisons’ Policy and Procedures
Manual, F.1504 (h)(1-2), . . . The use of instruments of
restraint, such as handcuffs . . . are used only with approval
by the facility head or designee.

(1) Instruments of restraint will be utilized only as a
precaution against escape during transfer, [to] prevent
self-injury or injury to officers or third parties, and/or for
medical or mental health reasons. . . . “

The Office of State Human Resources Policy Manual,
Section 7, page 2, states, “Grossly Inefficient Job
Performance is the failure to satisfactorily perform job
requirements as set out in the job description, work plan,
or as directed by the management of the work unit or
agency, and the act or failure to act causes or results in:
Death or serious bodily injury or creates conditions that
increase the chance for death or serious bodily injury to an
employee(s) or to members of the public or to a person(s)
for whom the employee has the responsibility;”


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                                 Opinion of the Court




            Your willful violation of these policies constitutes grossly
            inefficient job performance. . . .

            After a review of the information provided, to include the
            Pre-Disciplinary Conference, I saw no mitigating factors
            regarding your actions in this matter that would warrant
            action less than dismissal. . . .

      Petitioner appealed his termination to DPS, and on 16 July 2014 he received a

letter from DPS informing petitioner that the letter was a final agency decision to

uphold termination of petitioner’s employment. The letter stated that:

            On March 8, 2014, a Code Blue (Medical Emergency) was
            called because segregation staff observed inmate Kerr to be
            unresponsive in his cell. . . . You ordered inmate Kerr to
            come to the door to have the handcuffs removed and he did
            not. You then told inmate Kerr that until he got up and
            came to the cell door and asked to have his handcuffs
            removed his handcuffs would not be removed. At that time,
            you were aware that inmate Kerr had serious mental
            health issues. . . .

            There was no record of proper medical evaluation during
            the time inmate Kerr was in restraints over the next five
            days. . . . Reports indicated that one time inmate Kerr was
            observed standing; other reports indicated that he
            appeared to be asleep, or awake on his bunk. . . .

            Nevertheless, you did not remove inmate Kerr’s handcuffs
            because inmate Kerr did not come to the door to have the
            restraints removed. Your shift was scheduled off for the
            next two days. You left the correctional institution with
            your order regarding the procedure for removal of the
            handcuffs still in place.

            On March 12, 2014, four days after your original order that
            inmate Kerr remain in handcuffs until he asked to have
            them removed, you came back on shift as the OIC and you

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                      Opinion of the Court



instructed Correctional Sergeant William Johnson to
prepare inmate Kerr for transfer to Central Prison.
Sergeant Johnson went to the Segregation Unit and found
inmate Kerr in his cell with his pants and underwear down
around his ankles. He had urinated and defecated on
himself. . . .

Staff could not unlock the handcuffs because they were
clogged with dried feces. . . . Staff observed cuts and bruises
on inmate Kerr's wrists. . . . Inmate Kerr was not seen by
medical staff on March 12, 2014 prior to leaving for Central
Prison. Inmate Kerr left Alexander Correctional
Institution at approximately 8:30 AM and arrived at
Central Prison around 11:30 AM. When he was received at
Central Prison, he had expired.

                              ...

You were the OIC responsible for the fact that inmate Kerr
remained in handcuffs for five days. There was no valid
reason for inmate Kerr to have remained in handcuffs for
five days. . . . In addition, it should have been obvious that
inmate Kerr was not a threat to any custody staff, that no
restraints were necessary, and that he was in need of
medical attention. . . . It was your obligation to remove the
restraints; it was not incumbent upon inmate Kerr to ask
you to do so. It was obvious from the video footage taken on
March 12, 2014, that after five days inmate Kerr was so
incapacitated that he was not ambulatory and could not get
himself into a wheelchair from the bed, and yet the
restraints were still not removed. . . . The medical
testimony indicated that the cumulative evidence of
inmate Kerr’s behavior shows he was nonresponsive and
not being intentionally noncompliant.

As mitigation you argued that all of the other captains at
Alexander had been returned to work and that you were
the only Captain terminated. I find that you were
differently situated from all of the other Captains because
your behavior in ordering that inmate Kerr be handcuffed


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                     Opinion of the Court



until he could ask to have them removed was particularly
culpable behavior and may have played a role in inmate
Kerr’s death. Because there was no superintendent at
Alexander Correctional Institution at this time, it was
particularly incumbent upon you to be aware of the risks
to inmates and staff and to obtain adequate guidance and
supervision. . . .

[A]t no time did you seek medical advice about Inmate
Kerr’s condition on March 10-12, 2014. In addition, you
were responsible for knowing the consequences of your
order to keep inmate Kerr in handcuffs and for ensuring
that he was able to take care of his personal needs,
including exercise and taking nourishment.

Inmate Kerr was about 5'9" tall, weighing around 300
pounds, and medically determined to be obese. . . . You
attempted to place the responsibility on another
employee[.] . . . You also argued that you could not have
ordered inmate Kerr’s handcuffs to be removed[.] . . .

During your dismissal appeal hearing you . . . stated that
inmate Kerr was in handcuffs for disciplinary reasons[.] . .
. [T]he use of handcuffs was inappropriate for disciplinary
reasons. . . . When questioned as to how inmate Kerr was
supposed to handle his bodily functions if he was left in
handcuffs, you indicated that essentially it was inmate
Kerr’s problem for not coming to the door to have his
handcuffs removed. You also admitted that it appeared to
you that that inmate Kerr’s health was deteriorating over
the two days you were off work, yet instead of sending
inmate Kerr for medical care at the closest medical facility,
he was transported three hours away to Central Prison,
where he arrived dead. There appears to be no valid
reasons for the restraints to have been put on initially
when the inmate Kerr was examined as a result of the Code
Blue. There were no valid reasons that the handcuffs were
not removed when the exam was concluded. And there was
no valid reason inmate Kerr did not receive medical care.



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                                  Opinion of the Court



             I have also considered as an aggravating circumstance your
             complete lack of remorse or belief that you did anything
             wrong with regard to inmate Kerr. . . . Your belief that you
             did nothing wrong in the face of this inmate’s death is
             evidence that you cannot continue to be employed by the
             Department of Public Safety. No other level of disciplinary
             action is sufficient to protect the inmates in the custody of
             the Department of Public Safety and address your conduct
             and behavior.

             In conclusion, you were the Officer in Charge (OIC) at
             Alexander Correctional Institution on March 8, 2014. A
             Code Blue was called that inmate Michael Kerr was
             nonresponsive. Your staff responded to the Code Blue and
             medical staff examined inmate Kerr. After the exam, the
             leg restraints were removed but not the handcuffs, and
             staff exited the cell. . . . You then ordered that inmate Kerr
             remain in handcuffs until he asked to have them removed
             and came to the door for that purpose. You did not ensure
             that the restraint policies were complied with. As a result
             of your order, inmate Kerr remained in the handcuffs for
             five days. On March 12, 2014, prior to inmate Kerr being
             transported to Central Prison, [Mr. Kerr’s] handcuffs had
             to [be] cut off because they were encrusted with fecal
             matter. When he arrived at Central Prison, inmate Kerr
             was found to be unresponsive. He was pronounced dead on
             arrival at Central Prison.

      On 7 August 2014 petitioner filed a petition for a contested case hearing with

the North Carolina Office of Administrative Hearings. A three day hearing was

conducted before the ALJ beginning on 2 December 2015. During the hearing

petitioner acknowledged that as a correctional captain he was “required to have

considerable knowledge of the department’s rules, policies, and procedures

concerning the custody, care, treatment and training of inmates” and that his position

required “the exercise of good judgment and discretion” given that a particular

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                                  Opinion of the Court



situation might not be addressed in the written policies. Petitioner admitted that the

responsibilities of an OIC included a duty to “take corrective action on any condition

that may affect the security, safety, or welfare of a variety of people, including

inmates,” and “to document all unusual and important activities in the OIC shift

report.” Petitioner also conceded that he was familiar with the “[DPS] Division of

Prisons, Alexander Correctional Institution Standard Operating Procedure Section

.0427, Restraint Procedures” which governed the correctional officers’ use of

restraints, including handcuffs. These regulations state that:

             Restraints may be used as a precaution against escape
             during transfer for medical reasons, [to] prevent self-
             injury, to protect staff or others or [to] prevent property
             damage or manage disruptive behavior where other means
             have failed. Restraints are never to be applied for
             punishment, and must be removed as soon as possible as
             directed by the circumstances requiring application.

      Regarding the conditions of Mr. Kerr’s confinement, petitioner agreed that Mr.

Kerr was initially placed in handcuffs on 8 March 2014 to “secure him so medical staff

could go in and evaluate him.” Petitioner also admitted that he and Ms. Sims entered

Mr. Kerr’s cell unaccompanied by “an extraction team” and that petitioner did not

carry a shield. Petitioner testified that he knew that Mr. Kerr “had been at one time

[in] residential mental health,” and that Mr. Kerr had never acted violently towards

prison staff. Petitioner also admitted that during the 15 minute checks ordered by

petitioner, the prison staff did not enter Mr. Kerr’s cell or check to see if the cuffs

were hurting Mr. Kerr.

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                                  Opinion of the Court



      The ALJ also heard testimony from several prison officials. Stephanie Leach

testified that she was employed by DPS to investigate events such as the death of an

inmate, and that she led the investigation into Mr. Kerr’s death. Ms. Leach reviewed

records indicating that Mr. Kerr had not been observed in a standing position after 8

March 2014. Ms. Leach testified that, based upon her review of a videotape and Mr.

Kerr’s medical records, Mr. Kerr was not capable of walking to the cell door, and was

not intentionally refusing to do so, and that the coroner determined that Mr. Kerr’s

cause of death was dehydration.

      Marvin Polk testified that had worked for DPS for over thirty years and that

he conducted internal investigations into employee misconduct. In over thirty years’

experience with DPS, he had never heard of an inmate being restrained in handcuffs

for five days. Mr. Polk concluded that respondent “did not use sound judgment and

reasoning” by leaving Mr. Kerr handcuffed for five days, and that it was the

responsibility of the OIC to ensure that an inmate received necessary medical

treatment. Kenneth Lassiter, DPS’s Deputy Director of Operations, testified that an

OIC has the authority to make decisions that are necessary for an inmate’s health or

safety. Mr. Lassiter did not think handcuffs should have been applied to Mr. Kerr.

When handcuffs were applied, custodial staff should have checked every fifteen

minutes to make sure the handcuffs weren’t causing any injury, because mechanical

handcuffs of the kind used on Mr. Kerr had the potential for a serious risk of harm to



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                                   Opinion of the Court



an inmate, because of the risk of fluid retention. Mr. Lassiter also testified that it was

“rare that metal restraints are on an inmate for more than four hours,” and that he

had never heard, in more than twenty-five years of working for DPS, of another

instance of an inmate left in handcuffs for such “an extended amount of time.”

      George Solomon testified that he was DPS’s Director of Prisons, that he had

been employed by DPS for over thirty-five years, and that DPS’s “mission is to

maintain the public safety and safe and humane treatment of our stakeholders, our

inmate population, [and] make sure we take care of them[.]” Mr. Solomon was

responsible for the decision to fire petitioner, based on a review of interviews and

petitioner’s statements.    Mr. Solomon testified that petitioner’s acts of leaving

handcuffs on Mr. Kerr and not providing Mr. Kerr with milk might have contributed

to Mr. Kerr’s “decompensation and deterioration.”

      On 23 January 2015 the ALJ entered a Final Decision that affirmed DPS’s

decision to uphold petitioner’s termination. The ALJ concluded that respondent had

shown by the preponderance of the evidence that it had just cause to terminate

petitioner for grossly inefficient job performance.       The ALJ’s conclusions were

supported by more than eighty findings of fact, which were based based on a

voluminous transcript of over 600 pages and hundreds of pages of exhibits.

      Petitioner has appealed the ALJ’s Final Decision to this Court.

                                    II. Standard of Review



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                                    Opinion of the Court



       The standard of review of an administrative agency’s decision is set out in N.C.

Gen. Stat. § 150B-51 (2013), which provides that

              (b) The court reviewing a final decision may affirm the
              decision or remand the case for further proceedings. It may
              also reverse or modify the decision if the substantial rights
              of the petitioners may have been prejudiced because the
              findings, inferences, conclusions, or decisions are:
              (1) In violation of constitutional provisions;
              (2) In excess of the statutory authority or jurisdiction of the
              agency or administrative law judge;
              (3) Made upon unlawful procedure;
              (4) Affected by other error of law;
              (5) Unsupported by substantial evidence admissible under
              G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire
              record as submitted; or
              (6) Arbitrary, capricious, or an abuse of discretion.

              (c) . . . With regard to asserted errors pursuant to
              subdivisions (1) through (4) of subsection (b) of this section,
              the court shall conduct its review of the final decision using
              the de novo standard of review. With regard to asserted
              errors pursuant to subdivisions (5) and (6) of subsection (b)
              of this section, the court shall conduct its review of the final
              decision using the whole record standard of review.

       “Under the whole record test, the reviewing court must examine all competent

evidence to determine if there is substantial evidence to support the administrative

agency’s findings and conclusions.” Henderson v. N.C. Dep’t of Human Resources, 91

N.C. App. 527, 530, 372 S.E.2d 887, 889 (1988) (citation omitted). “ ‘[T]he whole

record test is not a tool of judicial intrusion; instead, it merely gives a reviewing court

the capability to determine whether an administrative decision has a rational basis

in the evidence.’ ” N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 674,


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599 S.E.2d 888, 903-04 (2004) (quoting In re Rogers, 297 N.C. 48, 65, 253 S.E.2d 912,

922 (1979)). Therefore, the whole record test “does not permit the reviewing court to

substitute its judgment for the agency’s as between two reasonably conflicting

views[.]” Lackey v. Dep't of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176

(1982).

      “Where the petitioner alleges that the agency decision was based on error of

law, the reviewing court must examine the record de novo, as though the issue had

not yet been considered by the agency.” Souther v. New River Area Mental Health,

142 N.C. App. 1, 4, 541 S.E.2d 750, 752 (internal quotation omitted), aff'd per curiam,

354 N.C. 209, 552 S.E.2d 162 (2001). “Under a de novo review, the court considers

the matter anew and freely substitutes its own judgment for that of the [ALJ].” In re

Appeal of the Greens of Pine Glen Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319

(2003) (citing Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565

S.E.2d 9, 17 (2002)). In addition, “[a]n administrative agency’s interpretation of its

own regulations is entitled to deference unless it is plainly erroneous or inconsistent

with the regulation’s plain text.” Total Renal Care or N.C. v. North Carolina HHS,

__ N.C. App.__, __, 776 S.E.2d 322, 327 (2015) (citing York Oil Co. v. N.C. Dep’t of

Env’t, 164 N.C. App. 550, 554-55, 596 S.E.2d 270, 273 (2004)).

                        III. Denial of Petitioner’s Motion in Limine




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                                   Opinion of the Court



      Petitioner argues first that the ALJ erred by denying his motion in limine

seeking “to restrict the respondent from producing evidence of anything other than

the reasons that were [stated] in [petitioner’s] April 7, 2014, dismissal letter as far as

reasons to justify his termination.” Petitioner argues that the ALJ violated the notice

requirements of N.C. Gen. Stat. § 126-35 by considering facts and circumstances that

were not specifically discussed in petitioner’s pre-disciplinary letter. We conclude

that petitioner’s argument lacks merit.

      In this case, petitioner makes only one challenge to evidence admitted over his

objection, consisting of petitioner’s assertion that the ALJ admitted evidence of a

prior disciplinary warning against petitioner over petitioner’s objection. We hold that

evidence of petitioner’s prior disciplinary history was properly considered as part of

the ALJ’s review of the level of discipline imposed against petitioner. See Carroll,

358 N.C. at 670, 599 S.E.2d at 901 (including, as part of its review of whether the

discipline imposed was appropriate, the fact that the petitioner “has been a reliable

and valued employee . . . for almost twenty years with no prior history of disciplinary

actions against him.”). “Career state employees, like petitioner, may not be

discharged, suspended, or demoted for disciplinary reasons without ‘just cause.’ N.C.

Gen. Stat. § 126-35(a). This requires the reviewing tribunal to examine . . . “whether

[the petitioner’s] conduct constitutes just cause for the disciplinary action taken.”

Warren v. Dep’t of Crime Control, 221 N.C. App. 376, 379, 726 S.E.2d 920, 923



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(quoting Carroll at 665, 599 S.E.2d at 898 (internal quotation omitted), disc. review

denied, 366 N.C. 408, 735 S.E.2d 175 (2012). In Wetherington v. N.C. Dep’t of Pub.

Safety, __ N.C. __, __ S.E.2d __ (2015 N.C. LEXIS 1259 *14-15) (18 December 2015)

our Supreme Court addressed the issue of an agency’s discretion to determine the

appropriate discipline:

             Just cause “is a flexible concept, embodying notions of
             equity and fairness, that can only be determined upon an
             examination of the facts and circumstances of each
             individual case.” . . . [The employee’s supervisor] confirmed
             that he [believed that he] could not impose a punishment
             other than dismissal for any violation, apparently
             regardless of factors such as the severity of the violation,
             the subject matter involved, the resulting harm, the
             trooper's work history, or discipline imposed in other cases
             involving similar violations. We emphasize that
             consideration of these factors is an appropriate and
             necessary component of a decision to impose discipline
             upon a career State employee[.]

Wetherington, __ N.C. at __, __ S.E.2d at __ (quoting Carroll, 358 N.C. at 669, 599

S.E.2d at 900-901 (internal quotation omitted)) (emphasis added).

      We have also reviewed petitioner’s challenges to the admission of evidence that

was not the subject of an objection at the hearing. N.C. Gen. Stat. § 126-35(a) requires

that if disciplinary action is contemplated against a State employee, “the employee

shall, before the action is taken, be furnished with a statement in writing setting

forth the specific acts or omissions that are the reasons for the disciplinary action and

the employee’s appeal rights.”



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                                   Opinion of the Court



             This Court has interpreted section 126-35(a) as requiring
             the written notice to include a sufficiently particular
             description of the “incidents [supporting disciplinary
             action] . . . so that the discharged employee will know
             precisely what acts or omissions were the basis of his
             discharge.” Failure to provide names, dates, or locations
             makes it impossible for the employee “to locate [the]
             alleged violations in time or place, or to connect them with
             any person or group of persons,” thereby violating the
             statutory requirement of sufficient particularity.

Owen v. UNC-G Physical Plant, 121 N.C. App. 682, 687, 468 S.E.2d 813, 817 (quoting

Employment Security Comm. v. Wells, 50 N.C. App. 389, 393, 274 S.E.2d 256, 259

(1981)), disc. review improvidently allowed, review dismissed, 344 N.C. 731, 477

S.E.2d 33 (1996).

      In this case, petitioner received a pre-disciplinary letter on 7 April 2014 that

set out the “names, dates, [and] locations” pertinent to his dismissal. This letter made

it clear that the “specific acts or omissions” leading to petitioner’s termination were

petitioner’s acts or omissions as related to Mr. Kerr’s conditions of confinement in

March 2014, and specifically as pertaining to petitioner’s role in allowing Mr. Kerr to

remain in handcuffs for five days without appropriate attention to his physical and

medical condition.

      On appeal, petitioner argues that the ALJ “erred as a matter of law when she

allowed Respondent to present reasons other than those listed in the 7 April 2014

dismissal letter and made findings of fact and conclusions of law based on those

additional reasons by which she found just cause for the termination of Petitioner’s


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                                    Opinion of the Court



employment.” Petitioner fails, however, to identify any evidence considered by the

ALJ that was not directly related to petitioner’s role in Mr. Kerr’s conditions of

confinement during March 2014, and our own review indicates that the evidence

challenged by petitioner consisted entirely of the facts and circumstances

surrounding Mr. Kerr’s death and petitioner’s actions or inactions relevant to Mr.

Kerr’s death. Petitioner is apparently arguing that he is entitled to notice, not only

of the acts and omissions that were the basis of his termination, but also to notice of

every item of evidence pertaining to these acts and omissions. Petitioner cites no

authority for his vastly expanded view of “notice” and we know of none. We conclude

that petitioner is not entitled to relief on the basis of this issue.

                     IV. Factual Support for the ALJ’s Findings of Fact

       Petitioner argues next that certain of the ALJ’s findings of fact are not

supported by substantial evidence. The majority of the ALJ’s findings are not

challenged and thus are conclusively established on appeal. Koufman v. Koufman,

330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (“Where no exception is taken to a finding

of fact by the trial court, the finding is presumed to be supported by competent

evidence and is binding on appeal.”) (citation omitted). Moreover, after careful review

of the record and the ALJ’s order, we conclude that in order to determine whether the

ALJ properly ruled that respondent established by a preponderance of the evidence

that respondent had just cause to terminate petitioner’s employment, it is not



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                                  Opinion of the Court



necessary for us to assess the evidentiary support for all of the findings challenged

by petitioner. We will, however, review the evidence supporting those findings that

we find to be material to the ALJ’s decision.

             We review a challenge to the ALJ's findings to determine
             whether the findings are supported by substantial
             evidence. N.C. Gen. Stat. § 150B-51(b), (c). “Substantial
             evidence is such relevant evidence as a reasonable mind
             might accept as adequate to support a conclusion.” Even if
             the record contains evidence that could also support a
             contrary finding, we may not substitute our judgment for
             that of the ALJ and must affirm if there is substantial
             evidence supporting the ALJ's findings.

Renal Care, __ N.C. App. at __, 776 S.E.2d at 328 (quoting Surgical Care Affiliates v.

N.C. Dep’t of Health & Human Servs., __ N.C. App. __, __, 762 S.E.2d 468, 470 (2014)

(internal quotation omitted), disc. review denied, 368 N.C. 242, 768 S.E.2d 564

(2015)).

      We first review petitioner’s challenge to Finding No. 26, which states that

“[t]he evidence indicates that Inmate Kerr was not refusing to have his handcuffs

removed but was unresponsive due to his mental health and/or physical condition.”

This finding is supported in part by Ms. Leach’s testimony, including the following:

             Q: Based on your review, did you determine if Mr. Kerr was
             refusing orders or just not responding?

             MS. LEACH: Mr. Kerr was just not responding, which is
             different from refusing.

             Q: Based on your experience as a registered nurse, did it
             appear to you that Mr. Kerr was capable of walking on his
             own accord?

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                                  Opinion of the Court




             MS. LEACH: No.

      This finding is further supported by Mr. Lassiter’s testimony that “Mr. Kerr’s

condition, from everything that I've read and could understand, prevented him from

coming to the door.” Petitioner acknowledges this testimony, but argues that the

validity of these witness’s testimony was impeached on cross-examination. “It is for

the agency, not a reviewing court, ‘to determine the weight and sufficiency of the

evidence and the credibility of the witnesses, to draw inferences from the facts, and

to appraise conflicting and circumstantial evidence[,] if any.’ ” Carroll at 674, 599

S.E.2d at 904 (quoting State ex rel. Utils. Comm’n v. Duke Power Co., 305 N.C. 1, 21,

287 S.E.2d 786, 798 (1982)). We conclude that this finding is supported by substantial

evidence.

      Petitioner also challenges the evidentiary support for Finding No. 40, which

states that the ALJ “finds as fact that Petitioner did not view Inmate Kerr as a threat

to the safety of Ms. Simms or himself on March 9.” Petitioner argues that the fact

that he entered Mr. Kerr’s cell on 9 March 2014 without an extraction team or a safety

shield “does not prove that [Mr. Kerr] was not considered to be a threat.” We are not

required to determine, however, whether this evidence “proves” petitioner’s state of

mind, but whether it adequately supports the ALJ’s inference in this regard. We hold

that the fact that petitioner entered Mr. Kerr’s cell with Ms. Simms without




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                                  Opinion of the Court



employing the institutional safety precautions supports the ALJ’s finding that

petitioner did not regard Mr. Kerr as a threat.

      We next review petitioner’s challenge to Finding No. 46 that “[n]o evidence was

offered that Petitioner ensured that custody staff actually performed checks to see if

the handcuffs were too tight or causing any harm to Inmate Kerr.” Petitioner does

not dispute the factual accuracy of this finding, and acknowledges his own testimony

that petitioner “did not instruct custody staff to perform checks on the restraints to

see if they were too tight or causing injury to Inmate Kerr[.]” Instead petitioner

contends that such safety checks were not his responsibility. However, the scope of

petitioner’s responsibility is not relevant to the accuracy of the ALJ’s finding that

petitioner did not ensure that custody staff monitored Mr. Kerr’s condition with

respect to the handcuffs. Petitioner also argues that this finding “shifted the burden

of proof” to petitioner. Finding No. 46 does not address or shift the burden of proof,

but simply notes that the evidence of petitioner’s failure to supervise appropriate

safety checks was uncontradicted by any other evidence. We hold that this finding is

supported by substantial evidence.

      Petitioner next challenges Finding No. 47, which states that petitioner

“concedes that in his experience no inmate had ever been left in handcuffs for more

than a few hours even when the inmate was refusing to have the handcuffs removed.”

On appeal, petitioner argues that he did not concede that no inmate had ever been



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                                  Opinion of the Court



left in handcuffs for more than a few hours, but only that such a situation was

“unusual.” Assuming, arguendo, that the ALJ should have found that petitioner

conceded it was “unusual” for an inmate to be in handcuffs for an extended period of

time, we hold that this does not require reversal of the ALJ’s order.

      Petitioner next challenges the evidentiary support for Finding No. 51, which

states that “Petitioner’s belief that Inmate Kerr was faking and being defiant was the

basis of his decision to leave him in handcuffs until he came to the cell door to have

them removed.”     We hold that this finding is amply supported by substantial

evidence. For example, petitioner testified as follows:

             Q: Okay. And I believe you testified earlier that you did not
             believe initiating any type of disciplinary action against
             Mr. Kerr would change his behavior.

             PETITIONER: Disciplinary action -- yes, ma’am, I testified
             to that.

             Q: What behavior did you want him to change?

             PETITIONER: His behavior of not coming to the door.
             Refusing to come to the door and be left in handcuffs. I
             wanted the handcuffs removed from him.

(emphasis added). Petitioner’s own testimony expressly indicates that he viewed Mr.

Kerr as acting defiantly, and thus supports the ALJ’s finding.

      Petitioner also challenges Finding No. 54, which states that on 12 March 2014

Sergeant Johnson “found Inmate Kerr lying in his own urine and feces with his pants

and underwear around his ankles. He was not responsive to verbal commands but


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                                    Opinion of the Court



appeared to be semi-conscious.” Petitioner’s challenge is limited to the ALJ’s use of

the phrase “semi-conscious.”       It is undisputed, however, that Mr. Kerr was

unresponsive, said nothing beyond repeating the word “Please,” and fell over when

placed in a wheelchair. This finding is supported by substantial evidence.

      Petitioner next challenges Findings Nos. 84 and 85, which state that:

             84. Based upon all of the admissible evidence, the
             Undersigned finds as fact that Petitioner did not report a
             Code Blue incident or ensure that subordinate staff
             completed a report.

             85. Based upon all of the admissible evidence, the
             Undersigned finds as fact that Petitioner did not complete
             the daily OIC reports as required of an Officer In Charge.

      Petitioner admits that he did not report the Code Blue incident, but offers the

excuse that other correctional officers also failed to do so, a fact which if true does not

change the factual accuracy of the finding. Regarding petitioner’s failure to complete

daily OIC reports, petitioner asserts that this was not specifically mentioned in his

pre-disciplinary letter.   As discussed above, however, petitioner’s neglect of his

responsibility to complete OIC reports was a part of petitioner’s acts and omissions

as specifically related to Mr. Kerr’s conditions of confinement in March 2014. The

ALJ did not err by making these findings.

      Finally, petitioner challenges Findings Nos. 86, 87, and 88, which state that:

             86. Based upon all of the admissible evidence, the
             Undersigned finds as fact that Petitioner did not exercise
             the discretion or good judgment required of a Correctional
             Captain.

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                                      Opinion of the Court




              87. Based upon all of the admissible evidence, the
              Undersigned finds as fact that Petitioner did not ensure
              the safe and humane treatment of Inmate Kerr.

              88. After considering all of the documentary and
              testimonial evidence admitted in this contested case,
              taking particular note of the Petitioner’s written
              statements and testimony, the Undersigned finds as fact
              that Petitioner fails to accept any personal responsibility
              for his actions or inactions that caused harm to Inmate
              Kerr.

       Findings Nos. 86 and 87 are supported by the ALJ’s other findings of fact that

are either unchallenged or which we have determined to be supported by substantial

evidence. Petitioner argues that his failure to accept personal responsibility was not

listed as a reason for termination in his pre-disciplinary letter.        We conclude,

however, that this circumstance was relevant to the ALJ’s review of the level of

discipline imposed. For the reasons discussed above, we conclude that the challenged

findings were supported by substantial evidence, and that petitioner is not entitled

to relief on this basis.

                             V. Just Cause for Petitioner’s Termination

       Petitioner’s final argument is that the ALJ erred by finding and concluding

that respondent had just cause to terminate petitioner for grossly inefficient job

performance. We disagree.

       N.C. Gen. Stat. § 126-35(a) provides that “[n]o career State employee subject

to the North Carolina Human Resources Act shall be discharged, suspended, or


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                                   Opinion of the Court



demoted for disciplinary reasons, except for just cause. . . . The State Human

Resources Commission may adopt, subject to the approval of the Governor, rules that

define just cause.” Pursuant to this grant of authority, the North Carolina Office of

State Human Resources has stated that “[t]here are two bases for the discipline or

dismissal of employees under the statutory standard for "just cause" as set out in G.S.

126-35. These two bases [include] (1) Discipline or dismissal imposed on the basis of

unsatisfactory job performance, including grossly inefficient job performance.” 25

N.C.A.C. 1J .0604(b)(1). In this case, petitioner was discharged for grossly inefficient

job performance, which is defined by 25 N.C.A.C. 1J.0614(5) as follows:

             (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[.] . . .

      In order to review the ALJ’s determination that respondent had established

that respondent had just cause to terminate petitioner, we must consider petitioner’s

acts and omissions in the context of the duties of his position. As a Correctional

Captain, petitioner was responsible for interpreting, developing, and implementing

standard operating procedures and emergency plans, as well as reviewing the work

performed by others to ensure its compliance “with the goals and the missions of the


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                                    Opinion of the Court



. . . Department of Public Safety,” including DPS’s goals of ensuring “the safety of the

inmates” and “the humane confinement of inmates.” During the hearing petitioner

admitted that his position required “the exercise of good judgment and discretion”

given that not every situation would be addressed in the written policies.

      In addition to his rank as a Correctional Captain, petitioner acted as the OIC

on 8 and 9 March 2014. Petitioner testified that the OIC is “the individual that's left

in charge of the daily running of the institution and the safety and welfare of the staff

and the inmates at that institution.” Mr. Polk testified that the duties of an OIC

include the following:

             The officer-in-charge of each facility within the Division of
             Prisons or his or her designated representative will conduct
             a daily inspection of the facility for the purpose of detecting
             and eliminating all hazards to the security, health,
             sanitation, safety, and welfare of staff and inmates at the
             facility. No condition which constitutes a threat to the
             sanitation, safety, or security of the prison facility will be
             permitted to exist.

      Mr. Polk also testified that it was the responsibility of the OIC to ensure than

an inmate received necessary medical care. In addition, Mr. Polk explained that, as

OIC, petitioner had a responsibility to follow up on petitioner’s orders regarding Mr.

Kerr by communicating with the Alexander staff on 10 and 11 March when petitioner

was not at the facility:

             Q. Now, how can Mr. Blackburn be responsible for what
             happened on March 10th and 11th if he wasn’t at work that
             day?


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                                   Opinion of the Court



             MR. POLK: Because on March 9th, he left the institution
             knowing that the inmate was still handcuffed inside the
             cell, and he had a duty to follow up to find out what his
             situation was. He was the officer-in-charge that placed
             those procedures in effect that no one should remove the
             handcuffs until he got up and walked to the door.

      We conclude that petitioner had a highly placed supervisory role at Alexander,

in which he gave orders to other correctional staff and had a great deal of

responsibility. As a correctional captain and the OIC, petitioner was required to

exercise good judgment and make discretionary decisions to further the health and

safety of both the correctional staff and the inmates.

      We next consider the ALJ’s findings of fact to determine whether they support

the ALJ’s finding and conclusion that there was just cause to terminate petitioner for

grossly inefficient job performance. The ALJ made the following findings of fact which

are either unchallenged on appeal or which we have determined to be supported by

substantial evidence:

             1. Petitioner was employed by Respondent North Carolina
             Department of Public Safety (DPS) for fourteen (14) years
             with promotions through the custody ranks from a
             Correctional Officer to a Correctional Captain.

             2.   At the time of his dismissal, Petitioner was a
             Correctional Captain, the second highest rank at the
             Alexander Correctional Institution (“Institution”)[.]

             3. Petitioner testified that he was aware of and familiar
             with the position description of a Correctional Captain
             which states that “[t]he Correctional Captain is responsible
             for interpreting, developing and implementing Standard
             Operating Procedures, Post Orders, and Emergency Plans

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                      Opinion of the Court



which are needed to carry out the custody assignments of
the facility.” The Correctional Captain also “assume[s] the
responsibilities of the Assistant Superintendent for
Custody and Operations in the absence of the Assistant
Superintendent for Custody and Operations.”            The
Correctional Captain “has the responsibility of reviewing
work performed and ensuring that it is in compliance with
the goals and missions of the Department of Corrections.”
An important goal of DPS is to ensure the safety and
humane confinement of inmates.

4. Petitioner would regularly perform duties as the Officer
In Charge (“OIC”) of the Institution during his 12-hour
duty assignment. An OIC has “the authority to make
spontaneous decisions regarding Institution operational
issues, while maintaining the safety and security of Staff,
agents, volunteers, visitors, and inmates throughout the
Institution areas of control . . . [and] will directly supervise
and/or monitor all areas of the Institution regarding
enforcement of orderly conduct, sanitary conditions, and
safety.”

5. Petitioner testified that as OIC he was responsible for
the daily running of the Institution and for the safety and
welfare of inmates and prison staff and to document all
unusual and important activities in the OIC shift report.

6. Petitioner was familiar with DPS’s policies and
procedures governing the treatment and confinement of
inmates. . . .

                              ...

8. Petitioner testified that he was aware that DPS’s
policies allow a considerable amount of discretion and use
of judgment by a Correctional Captain because every
scenario that prison staff may encounter is not covered by
written policies and procedures.




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                     Opinion of the Court



9. Petitioner testified that in February 2014, he knew that
Inmate Kerr “had been at one time residential mental
health.” He also testified that he did not know whether
inmate Kerr was on administrative segregation or
disciplinary segregation status, or whether he was there
for mental health observation.

10. Over time, [Mr. Kerr’s] segregation status was
continued for disciplinary reasons for various non-violent
infractions such as being loud in his cell and throwing
water on the floor.

                             ...

15. Inmate Kerr had been tearing up the milk cartons and
putting the pieces in his toilet thereby flooding the cell so
Petitioner ordered that [Mr. Kerr] no longer be provided
the milk with the nutraloaf.

16. An unidentified individual put a note on Inmate Kerr’s
cell door “NO MILK PER CAPTAIN BLACKBURN.”
Petitioner testified . . . that he knew the note was posted.

17. Inmate Kerr was no longer provided milk with the
nutraloaf after Petitioner’s order was given, even during
the shifts when Petitioner was not on duty.

18. “Code Blue” is defined as any medical situation in the
confines of the Institution requiring the immediate
assistance of Medical Personnel.

19. On March 8, 2014, Petitioner was the Correctional
Captain on duty as the OIC when a Code Blue was called
because segregation staff observed Inmate Kerr to be
unresponsive in his cell.

20. When Petitioner arrived at Inmate Kerr’s cell, he was
lying on his bed with leg restraints on and his hands cuffed
in front. Inmate Kerr lay in the bed awake, not talking or



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                     Opinion of the Court



moving and, at one point, staff could not tell if he was
breathing.

                             ...

22. Petitioner then ordered Inmate Kerr to come to the cell
door to have the mechanical handcuffs removed. Petitioner
informed Inmate Kerr that his handcuffs would not be
removed until he got up and came to the cell door.

23. Petitioner directed the subordinate custody staff not to
remove the handcuffs until Inmate Kerr came to the door
and asked that the handcuffs be removed. . . .

24. Petitioner directed custody staff to perform 15-minute
safety checks on Inmate Kerr’s handcuffs. The safety
checks consisted of looking through the cell door at Inmate
Kerr. Neither Petitioner nor his subordinate staff checked
to see if the handcuffs were too tight or causing physical
harm to Inmate Kerr.

25. Custody tablet reports indicate that at times staff
would simultaneously report that Inmate Kerr appeared to
be sleeping and [also that Mr. Kerr] refused to have his
handcuffs removed.

26. The evidence indicates that Inmate Kerr was not
refusing to have his handcuffs removed but was
unresponsive due to his mental health and/or physical
condition.

27. Petitioner did not complete an incident report for the
Code Blue for Inmate Kerr on March 8, 2014 or report that
Inmate Kerr was in restraints at the end of his shift on
March 8, 2014. . . .

28. Petitioner noted the incident in the Shift Narrative for
March 8 including the order not to remove the handcuffs
until Inmate Kerr came to the cell door.



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                     Opinion of the Court



                             ...

30. As OIC, Petitioner failed to note on the OIC report on
March 8, 2014 that Inmate Kerr was still in handcuffs.

31. Petitioner did not call Assistant Superintendent Moose
or any other resource available to him, such as the division
duty officer, on March 8, 2014 to receive any type of
guidance on what to do regarding Inmate Kerr. As OIC,
Petitioner did not notify the Administrator (Moose) that
Inmate Kerr remained in handcuffs at the end of shift.

32. Petitioner was the OIC on March 9, 2014.

                             ...

36. On March 9, 2014, Petitioner entered Inmate Kerr’s cell
with staff psychologist Dara Simms without an extraction
team, the required number of custody staff, or the shield
for protection.

                             ...

38. Inmate Kerr remained on his bed unresponsive even
after Petitioner tried to rouse him with his hand and by
pulling Inmate Kerr’s blanket out of his hands.

39. Ms. Simms asked Petitioner if a Code Blue should be
called, but Petitioner responded that a Code Blue was not
necessary. They exited the cell and left Inmate Kerr in the
handcuffs.

40. The Undersigned finds as fact that Petitioner did not
view Inmate Kerr as a threat to the safety of Ms. Simms or
himself on March 9.

41. Petitioner’s notes in the Shift Narrative for March 9
record Inmate Kerr in handcuffs.




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                     Opinion of the Court



42. At the end of his shift on March 9, 2014, Petitioner did
not include in the OIC report that Inmate Kerr remained
in handcuffs.

43. Petitioner took his scheduled off-duty days on March 10
and 11, 2014 leaving in place his order that Inmate Kerr
remain in handcuffs.

44. Inmate Kerr remained in handcuffs from March 8
through March 12, 2014. Segregated Unit Shift Narratives
completed by the OIC for each day record that Inmate Kerr
remained in handcuffs in his cell.

45. Neither Petitioner nor any of the other OICs noted that
Inmate Kerr was still in handcuffs on their OIC reports for
March 8, 9, 10, or 11, 2014.

46. No evidence was offered that Petitioner ensured that
custody staff actually performed checks to see if the
handcuffs were too tight or causing any harm to Inmate
Kerr.

47. Petitioner concedes that in his experience no inmate
had ever been left in handcuffs for more than a few hours
even when the inmate was refusing to have the handcuffs
removed.

                             ...

49. Despite the fact that Petitioner asserted that Inmate
Kerr was simply refusing to obey his commands to come to
the door to have the handcuffs removed, neither Petitioner
nor any other custody staff ever initiated any type of
disciplinary action against Inmate Kerr for his supposed
refusal.

50. The Undersigned finds as fact that Inmate Kerr was
not in handcuffs due to violent behavior or any other
behavioral reason.



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                     Opinion of the Court



51. Petitioner’s belief that Inmate Kerr was faking and
being defiant was the basis of his decision to leave him in
handcuffs until he came to the cell door to have them
removed.

52. Petitioner had the authority to simply order that the
handcuffs be removed.

53. On Mach 12 2014, Petitioner instructed Correctional
Sergeant William Johnson to prepare Inmate Kerr for
transport to Central Prison for mental health care.

54. When Sergeant Johnson went to Inmate Kerr’s cell he
found Inmate Kerr lying in his own urine and feces with
his pants and underwear around his ankles. He was not
responsive to verbal commands but appeared to be semi-
conscious.

55. The Undersigned reviewed a video of Inmate Kerr being
prepared for transport to Central prison: correctional staff
physically put clean pants on Inmate Kerr; an additional
officer was called to retrieve a wheelchair and then lifted
Inmate Kerr into the wheelchair; he appeared to be
slumping in the wheelchair.

56. Sergeant Johnson informed Petitioner that the
handcuffs could not be unlocked because they were caked
with feces. Petitioner ordered Sergeant Johnson to use bolt
cutters to remove the handcuffs.

57. Various staff observed cuts and bruises on Inmate
Kerr’s wrist[s] from being in handcuffs for an extended
period of time. Custody staff gave Inmate Kerr bandaids.

58. Corrections Officer James Quigley stated in written
statements dated March 18, 2014 and April 1, 2014 that
when he assisted with dressing Inmate Kerr, he observed
“open wounds on his right wrist.” In his written statement,
Sergeant Johnson noted “cuts” on Inmate Kerr’s wrist
caused by the handcuffs.


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                     Opinion of the Court




59. No evidence was offered that Inmate Kerr ever got up
from his bunk after the evening of March 8, 2014 until he
was physically removed from his cell on March 12, 2014.

60. Inmate Kerr did not see medical staff before leaving the
Institution at 8:30 a.m. and was dead upon arrival at
Central Prison at 11:30 a.m.

61. As a result of Inmate Kerr’s death, a Sentinel Event
team conducted an investigation at the Institution into his
death and submitted a report to DPS.

62. As a result of that report, DPS’s Professional Standards
Office conducted internal investigations into the conduct of
several employees, including Petitioner.

63. Marvin Polk, an investigator with the Professional
Standards Office with DPS, conducted the internal
investigation regarding Petitioner’s conduct and submitted
a report dated April 5, 2014 to DPS management which
recommended disciplinary action against Petitioner.

64. Mr. Polk testified that in his thirty years working for
the department he had never known an inmate to have
been left in handcuffs for five days. He testified that
handcuffs should have been removed from Inmate Kerr by
assembling a team with a shield, removing the handcuffs
and backing out of the cell.

65. Kenneth Lassiter, Deputy Director of Operations for
DPS, has been employed by DPS for twenty-five years and
is familiar with the DPS’s policy and procedures related to
the care and confinement of inmates. He testified that
handcuffs can create the potential for a serious risk of harm
and, therefore, custody staff are trained to ensure that the
handcuffs are not embedded or cutting into an inmate’s
skin.




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                     Opinion of the Court



66. During the internal investigation, Petitioner gave three
written statements.

67. On March 18, 2014, Petitioner stated that he had dealt
with Inmate Kerr a couple times on the segregation unit
and mental health unit.

68. On April 1, 2014, Petitioner stated that on March 9,
2014, he discussed with Nurse Triplett that he was aware
of Inmate Kerr’s mental state and that he “had notified
Mental Health Staff.”

69. In another statement on April 1, 2014, Petitioner stated
that a Code Blue was called on March 8, 2014 for Inmate
Kerr.

                             ...

71. On April 4, 2014, Petitioner attended a Pre-
Disciplinary Conference wherein the reasons supporting
discipline were given to him. Petitioner was given an
opportunity to respond orally and in writing. Petitioner
gave verbal and written statements[.] . . .

72. On April 4, 2014, Petitioner submitted a written
statement “to fully explain my thought process and
decision making for the events that occurred over the
weekend.” He wrote that on March 8, he did not know
Inmate Kerr’s mental health status “or that his medical
status had changed or that he needed any further medical
assistance or needs.”

                             ...

74. After the Pre-Disciplinary Conference, Director
Solomon reviewed the Sentinel Event Report, Internal
Investigation report, witness statements and all available
information including Petitioner’s prior active written
warning and years of service, making a decision to
discipline Petitioner. On July 18, 2013, Petitioner had


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                     Opinion of the Court



received a written warning for Unacceptable Personal
Conduct for falsely recording time on his timesheets. In
that written warning Petitioner was directed to review
department, division and facility policies and procedures
specific to his responsibility as a Correctional Captain, and
also was warned that if any further performance or conduct
incidents occurred that he would be subject to discipline up
to and including dismissal.

75. On April 7, 2014, Petitioner was dismissed based upon
Grossly Inefficient Job Performance.

76. Respondent’s dismissal letter dated April 7, 2014,
states the specific conduct as reasons for the dismissal.

77. Respondent’s dismissal letter dated April 7, 2014, is
based upon the Division of Prison’s Policy and Procedures
Manual, P .1504(h)(1-2) which states:

      . . . . The use of instruments of restraint, such as
      handcuffs, leg cuffs, waist chains, black boxes and
      soft restraints are used only with approval by the
      facility head or designee.

      (1) Instruments of restraint will be utilized only as a
      precaution against escape during transfer, [to]
      prevent self-injury or injury to officers or third
      parties, and/or for medical or mental health reasons.
      ...

78. Petitioner appealed his dismissal to the Employee
Advisory Committee where he was given the opportunity
to speak and present evidence to the committee.

79. In his Step 2 Grievance Filing, concerning Inmate Kerr
“Remaining In Handcuffs,” Petitioner stated that Inmate
Kerr “remained in cuffs of his own free will” and “these
orders were only for Saturday 3/8/14 morning and thru [sic]
end of shift on Sunday 3/9/14.”



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                     Opinion of the Court



80. In his Step 2 Grievance Filing, Petitioner submitted a
written “Closing Statement” excusing his actions because
of “[t]he lack of a clear procedure deprived me of a concise
understanding of what was expected during this type of
incident.” He also complained that “[n]o one else did
anything different [from] what I did but I am the one
sitting here with no job while the other OIC’s are back to
work.”

81. [Respondent] presented evidence that as a result of
Inmate Kerr’s death and the events surrounding it, a total
of twenty-five employees faced discipline: nine were
dismissed (including an Assistant Superintendent); one
was reassigned down (Region Director); one was demoted
(Assistant Superintendent); ten received a written
warning; two received a TAP entry; and two resigned.

82. On June 3, 2014, the Employee Advisory Committee
unanimously recommended that the dismissal be upheld.

83. On July 16, 2014, a Final Agency Decision was issued
by Commissioner W. David Guice upholding the dismissal.

84. Based upon all of the admissible evidence, the
Undersigned finds as fact that Petitioner did not report a
Code Blue incident or ensure that subordinate staff
completed a report.

85. Based upon all of the admissible evidence, the
Undersigned finds as fact that Petitioner did not complete
the daily OIC reports as required of an Officer In Charge.

86. Based upon all of the admissible evidence, the
Undersigned finds as fact that Petitioner did not exercise
the discretion or good judgment required of a Correctional
Captain.

87. Based upon all of the admissible evidence, the
Undersigned finds as fact that Petitioner did not ensure
the safe and humane treatment of Inmate Kerr.


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                                 Opinion of the Court




            88. After considering all of the documentary and
            testimonial evidence submitted in this contested case,
            taking particular note of the Petitioner’s written
            statements and testimony, the Undersigned finds as fact
            that Petitioner fails to accept any personal responsibility
            for his actions or inactions that caused harm to Inmate
            Kerr.

      To summarize, the undisputed evidence and the ALJ’s findings establish the

following material facts and circumstances:

            1. In March 2014 petitioner was a Correctional Captain
            and acted as the OIC at various times. Petitioner’s position
            required that he not only know and follow prison rules and
            regulations, but that he respond with discretion and good
            judgment to situations that were unexpected or were not
            addressed in written guidelines.

            2. On 8 and 9 March 2014 petitioner was the OIC at
            Alexander, a position that placed him in a supervisory role
            over the institution and made him responsible for the
            exercise of good judgment by him and by the staff in order
            to promote the health and safety of staff and inmates.

            3. On 8 March 2014 petitioner ordered that Mr. Kerr must
            remain in handcuffs until he walked to the door of his cell
            and asked for their removal. On 8 March 2014 petitioner
            also ordered that Mr. Kerr should no longer be given milk,
            leaving Mr. Kerr with no way to drink any liquid unless he
            could use his handcuffed hands to drink from the sink in
            his cell.

            4. Petitioner did not ensure that the custodial staff checked
            Mr. Kerr’s condition, or that they removed the handcuffs
            periodically to allow Mr. Kerr to drink or to use the toilet
            in his cell. Mr. Kerr was not observed to be standing or to
            have moved from his bed after 8 March 2014.



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                                    Opinion of the Court



              5. No evidence was presented that Mr. Kerr had ever
              behaved violently towards custodial staff or that he
              presented a danger to petitioner or to other staff.

              5. Petitioner had the authority to order the handcuffs
              removed. Procedures existed that would have reduced or
              eliminated any risk associated with removing Mr. Kerr’s
              handcuffs.

              7. Petitioner’s action of allowing Mr. Kerr to remain in
              metal handcuffs for five days was not in accordance with
              DPS’s or Alexander’s guidelines for use of restraints.

       Based on the evidence, the ALJ’s findings of fact, and the undisputed crucial

facts, we conclude that petitioner’s actions of (1) allowing Mr. Kerr to remain lying

on his bed in handcuffs for five days, (2) without receiving anything to drink during

this time, and (3) without any attention to Mr. Kerr’s condition, was a violation of

applicable rules, a breach of petitioner’s responsibility as a senior correctional officer,

and contributed directly related to Mr. Kerr’s death on 12 March 2014. The ALJ did

not err by finding and concluding that respondent had properly determined that it

had just cause to terminate petitioner for grossly inefficient job performance.

       Petitioner’s arguments for a contrary result are primarily technical in nature

and ignore the degree of responsibility associated with his position. For example,

petitioner argues that the ALJ did not make a finding tracking the statutory language

that petitioner “failed to satisfactorily perform job requirements as specified in his

job description, work plan, or as directed by management.” We first note that as a

Correctional Captain, petitioner was management. Secondly, the ALJ’s findings


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                                   Opinion of the Court



establish that petitioner’s acts and omissions meet the standard for grossly inefficient

performance, and the ALJ’s order need not be reversed for omitting an additional

finding that tracks the statutory language.

      Similarly, petitioner contends that the ALJ did not make a finding specifically

quoting the definitional language that petitioner’s “actions or inactions resulted in

the creation of the potential for death or serious bodily injury to Inmate Kerr.” The

evidence was undisputed that at the time of Mr. Kerr’s death he had been in

handcuffs for days, with nothing to drink, was lying in his own urine and feces, and

was determined to have died of dehydration. In the face of this overwhelming and

disturbing evidence, petitioner nonetheless argues that respondent “failed to present

sufficient evidence to establish such potential of serious bodily injury or death.” We

hold that the evidence and the ALJ’s findings established not only a potential for

serious injury or death but death itself.

      Petitioner also contends that the “only specific findings that ALJ Brooks made

that Petitioner failed to satisfactorily perform his job requirements were those

relating to his failure to complete an incident report for the Code Blue incident and

his failure to document that Inmate Kerr remained handcuffed at the end of his shift

on his daily OIC report.” (PtrBrf 25-26) Petitioner fails to acknowledge the most

important “job requirement” of his position, that of exercising good judgment in a

supervisory position of great responsibility.



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                                   Opinion of the Court



      Petitioner also asserts that his conduct, even if it constituted grossly inefficient

job performance, did not warrant dismissal. We again note that petitioner’s position

required him to exercise supervisory authority and good judgment. We conclude that

the ALJ’s findings support the conclusion that respondent had shown that it had just

cause to terminate petitioner for grossly inefficient job performance.

      We have considered petitioner’s remaining arguments and conclude that they

are without merit. For the reasons discussed above, we conclude that the ALJ did

not err and that its order should be

      AFFIRMED.

      Judges BRYANT and CALABRIA concur.




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