Best v. Dept. of Health and Human Services

• Decision Date: 07 May 2002
• Docket Number: No. COA01-118.,COA01-118.
• Citation: 563 S.E.2d 573,149 NC App. 882
• Court: North Carolina Court of Appeals
• Parties: Yolandra BEST and Roy Hudson, Petitioners, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, John Umstead Hospital, Respondent.

563 S.E.2d 573

149 NC App. 882

Yolandra BEST and Roy Hudson, Petitioners, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, John Umstead Hospital, Respondent.

No. COA01-118.

Court of Appeals of North Carolina.

May 7, 2002.

Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for respondent-appellant.

Grafstein & Walczyk, P.L.L.C., by Lisa Grafstein, Raleigh, and Konrad Schoen, Durham, for petitioner-appellees.

HUDSON, Judge.

Respondent, the Department of Health and Human Resources ("the Department"), appeals an Order entered 24 October 2000 by Judge Abraham Penn Jones in the superior court which reversed and remanded the decision of the State Personnel Commission ("SPC"). For the reasons discussed herein, we affirm the superior court's order.

We begin with a brief summary of the pertinent facts. Petitioners Yolandra Best ("Ms. Best") and Roy Hudson ("Mr. Hudson") were employed by respondent-appellant Department of Health and Human Services at John Umstead Hospital ("JUH") beginning 4 March 1987 and 15 October 1992, respectively. Both worked as Health Care Technicians at JUH until they were discharged from their jobs on 19 February 1997. On Saturday, 15 February 1997, petitioners were on the job at JUH.

Ms. Amanda Blanks, a Rehabilitation Therapy Coordinator at JUH, was also at work that day, even though it was her scheduled day off. She initiated the chain of events which has culminated in these proceedings.

According to Ms. Blanks, on 15 February 1997, at around 9:30 a.m., she went through the nurses' workstation to the "chart room." As she entered the chart room, she "ran into or saw Mr. Hudson initially, and Mr. Coles, who was also the healthcare tech on the ward, sitting at the counter." Ms. Blanks testified that "a few minutes later I saw Yolandra Best come out [of the chart room]." In the chart room, Ms. Blanks noticed on the counter "a set of keys, pack of cigarettes, and a straw about three to four inches long," with a "white residue in one end of it." Shortly thereafter, Ms. Blanks left the chart room to take a telephone call at the nurses' station. While she was "in the process of getting off the phone," Mr. Hudson "walked back into the nurse's station," asked where his keys were, stepped in to the chart room, and immediately exited the chart room with "a set of keys and the pack of cigarettes that had been laying on the counter." When Ms. Blanks re-entered the chart room, she noticed "that the keys, the cigarettes, and the straw that [she] had seen earlier were all missing." She "look[ed] around" for these items, but could not find them. On direct-examination Ms. Blanks testified that she did not see anyone else enter the chart room during that time, however, on cross-examination she admitted that she was not facing the chart room during the entire telephone conversation and may not have seen everyone in the area. Based on these observations, Ms. Blanks reported to her supervisor, Ms. Jo Schuchardt, that she suspected Mr. Hudson and Ms. Best of using the straw with illegal drugs.

Later that morning, Ms. Schuchardt informed Ms. Blanks that Dr. Patricia Christian (director of JUH), Mr. Sandy Brock (director of human resources at JUH), and Officer Pendleton (Butner Public Safety) were on their way to JUH. Officer Pendleton arrived first; when he did, Ms. Blanks related to him what she had seen and what she suspected. She gave Mr. Brock the same report when he arrived. Officer Pendleton waited for Ms. Best and Mr. Hudson, who had gone to lunch. When they returned, Officer Pendleton identified himself to them and asked Mr. Hudson to empty his pockets and show him the contents. Mr. Hudson complied; upon seeing a yellow straw from Mr. Hudson's front right pocket, Officer Pendleton "seized [the straw]. I picked it up. I looked at it, observed a white powdery substance inside the straw, and I seized it." Officer Pendleton and Ms. Blanks both testified that the straw seized had a bend in it and was not the one Ms. Blanks saw in the chart room. Officer Pendleton submitted the straw from Mr. Hudson's pocket to the SBI lab for analysis, which later revealed no controlled substance on the straw.

Officer Pendleton testified that he "frisked [Mr. Hudson] around his waist band and pulled his pant legs up and looked around the cuff of his shoes, and that was it...." Mr. Hudson, however, testified that as part of the search Officer Pendleton's "hands were down right far into my underclothes. He was going into my genital area.... Then he checked my socks and my shoes.... Then he told me to stand at the front of the truck facing the building, and he was going to search my truck. He asked me to unlock my truck." Mr. Hudson complied with all of these requests. At the conclusion of the search, Officer Pendleton told Mr. Hudson, "[t]hey're going to ask you to take a drug screen."

While Officer Pendleton was searching Mr. Hudson and his truck, Ms. Blanks and Ms. Schuchardt conducted a strip search of Ms. Best in a ladies' restroom. Ms. Best removed all of her outer garments while standing in the open portion of the restroom in front of Ms. Blanks and Ms. Schuchardt. Ms. Best testified in response to direct examination:

Q. How did they search you?

A. She told me to take off my sweater. I did.

THE COURT: Who told you to take it off? Who told you to take off your sweater?

A. Jo asked me to take off my sweater, and I did. Then she asked me to undo my blouse; I did. She asked me to undo my bra; I did.

Q. As you undid each article of clothing what did you do with them?

A. I opened them up. My blouse was buttoned in the front, and I opened it up and picked up the back part of the blouse. I did the same thing with my bra and opened it up and took to the back.

Q. And then what?

A. I had to pull down my pants and my pantyhose.

Ms. Best was visibly upset and crying during and after the search, in which no drugs or paraphernalia were found. Neither Ms. Blanks, Ms. Schuchardt, Mr. Brock, nor Officer Pendleton saw any evidence of abnormal or erratic behavior, nor did any of them see any indication that either petitioner was impaired. Mr. Hudson also described what sort of activities usually took place in the chart room and how straws were normally found in the chart room:

Q: Tell us—we've heard a lot about the chart room. Can you describe, briefly, the dimensions of it and generally what it's used for?

A: Yes. It's a room that's probably about 5 by 9 or so. It has charts in there. It has equipment that's used for drawing blood. It has some manuals in there for that. I know that because they generally pertain to me because I (inaudible) that board. It has patients' charts, patient belongings, and food items and staff belongings. It's normally an all-purpose.

Q: People keep their stuff in there? Their food in there?

A: At times, yes.

Q: Did anybody ever mix medications in there?

A: Yes, it has been used for that.

Q: Okay. Did you all ever use straws to mix medications?

A: Yes. I did not, but I have others do so, yes.

After completing both searches, Mr. Brock, Ms. Blanks, and Ms. Schuchardt met with Ms. Best and Mr. Hudson in Ms. Schuchardt's office. During the meeting, Mr. Hudson asked Ms. Schuchardt for a copy of the Department of Human Resources workplace drug policy, Directive No. 47 ("Directive 47"). Ms. Schuchardt told Mr. Hudson that she did not know where a copy of the policy was located, and neither Mr. Hudson nor Ms. Best saw Directive 47 at any time on 15 February 1997.

Mr. Brock testified that he left the room to call Dr. Christian, that he told her about the straw Ms. Blanks saw, and that the one seized was not the same one as seen in the chart room, but they agreed they had "reasonable cause" to request a drug test of petitioners. Mr. Brock informed Ms. Best and Mr. Hudson that under the policy, they were expected to take a drug screening test and that "failure to comply with the requested drug screen could lead to a dismissal." The policy also required that petitioners be advised of "the basis for reasonable cause;" Mr. Brock testified that to comply, he told petitioners only about the straw that Ms. Blanks had seen. Ms. Best and Mr. Hudson left the room after signing forms indicating that they did not consent to a drug test. Ms. Best explained: "I thought it (the drug test) couldn't have been [fair] because what they were doing to me wasn't fair." Mr. Hudson explained during his testimony that he did not consent to the drug test because, "I did not understand what was going on. I did not know why this was happening to me, and I was actually—I was afraid of them at that time ... and I just said no." After petitioners refused to consent to the drug tests, "[t]hey told us (Mr. Hudson and Ms. Best) to go home."

Petitioners made appointments with Butner Creedmoor Family Medicine for drug screening tests on Tuesday morning, 18 February 1997, three days after the incident at JUH. Both tested negative and brought their test results with them to their pre-dismissal conferences on that same day. Mr. Hudson and Ms. Best were dismissed, effective 20 February 1997, for refusing to submit to a blood test for drugs in violation of DHR Directive 47.

The Department has established a multi-step appeal procedure for a terminated employee. "Step 1" requires the employee to file a grievance with his/her immediate supervisor. At "Step 2" and "Step 3," the employee files an "Employee Grievance Filing Form" with a specific authorized person in the Unit Personnel Office; at "Step 3," the Department provides a hearing. Petitioners Hudson and Best appealed their dismissal by following these procedures. Their "Step 3" hearing was held 14 May 1997 before Ann Stone, a Department hearing officer. Ms. Stone issued a recommended decision in favor of petitioners. By letters dated 17 June 1997, H. David Bruton, M.D., Secretary of the Department, informed petitioners that he did not adopt the recommended...