{ "id": 9248913, "name": "KELVIN J. LEEKS, Petitioner v. CUMBERLAND COUNTY MENTAL HEALTH DEVELOPMENTAL DISABILITY AND SUBSTANCE ABUSE FACILITY, Respondent", "name_abbreviation": "Leeks v. Cumberland County Mental Health Developmental Disability & Substance Abuse Facility", "decision_date": "2002-11-19", "docket_number": "No. COA02-40", "first_page": "71", "last_page": "83", "citations": [ { "type": "official", "cite": "154 N.C. App. 71" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "534 U.S. 184", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9108107 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "197" }, { "page": "631" }, { "page": "196" }, { "page": "197" }, { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/us/534/0184-01" ] }, { "cite": "104 F.3d 683", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7636901 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/f3d/104/0683-01" ] }, { "cite": "535 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "363", "parenthetical": "citing Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997)" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497637 ], "year": 2000, "pin_cites": [ { "page": "684", "parenthetical": "citing Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0676-01" ] }, { "cite": "42 U.S.C. \u00a7 12102", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2001, "pin_cites": [ { "page": "(2)" }, { "page": "(2)(A)" } ], "opinion_index": 0 }, { "cite": "465 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "41", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916594 ], "year": 1996, "pin_cites": [ { "page": "259", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0253-01" ] }, { "cite": "344 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "127" } ], "opinion_index": 0 }, { "cite": "316 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697218, 4701773, 4696977, 4696466, 4705013 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0553-04", "/nc/316/0553-03", "/nc/316/0553-05", "/nc/316/0553-01", "/nc/316/0553-02" ] }, { "cite": "338 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "829" }, { "page": "827" }, { "page": "830" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519560 ], "year": 1986, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0125-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "392", "parenthetical": "citations omitted." }, { "page": "392", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "468 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "559-60" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915396 ], "year": 1996, "pin_cites": [ { "page": "62-63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0058-01" ] }, { "cite": "463 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "120 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916540 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/120/0521-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1994, "pin_cites": [ { "page": "118" }, { "page": "120-21", "parenthetical": "quoting State Personnel Manual, Sec. 9 at 3; 25 NCAC lJ.0604(b) (1984) (amended March 1994)" }, { "page": "121" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "674" }, { "page": "679", "parenthetical": "quoting State Personnel Manual, Sec. 9 at 3; 25 NCAC lJ.0604(b) (1984) (amended March 1994)" }, { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] } ], "analysis": { "cardinality": 1019, "char_count": 26834, "ocr_confidence": 0.767, "pagerank": { "raw": 7.404632848295125e-08, "percentile": 0.4428717658828758 }, "sha256": "e85ea9bbd1e3c6c77b45c0bb7eb65f7865ca92fe3ece256646640a858d19673e", "simhash": "1:99a8ecab66c8ad3d", "word_count": 4076 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and THOMAS concur." ], "parties": [ "KELVIN J. LEEKS, Petitioner v. CUMBERLAND COUNTY MENTAL HEALTH DEVELOPMENTAL DISABILITY AND SUBSTANCE ABUSE FACILITY, Respondent" ], "opinions": [ { "text": "TYSON, Judge\nKelvin J. Leeks, (\u201cpetitioner\u201d), appeals from an order which affirmed the final agency decision of the Cumberland County Mental Health Development Disabilities and Substance Abuse Facility, (\u201crespondent\u201d), terminating petitioner\u2019s employment. We affirm.\nI. Facts\nPetitioner 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.\nPetitioner 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.\nOn 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.\nOn 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, (\u201cMAR\u201d). Petitioner did not record the time or initial the MAR. Around 9:10 a.m., Everett Mitchell, petitioner\u2019s supervisor, sent petitioner home.\nPetitioner 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 \u201cdreamed\u201d the medication had not been administered. Petitioner was assured by another worker, Christopher Corders, that the medications had been given. Corders relied upon petitioner\u2019s partially completed MAR.\nPetitioner 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\u2019s instructions, and petitioner signed the records at the time of administration.\nA 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, (\u201cAU\u201d) 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\u2019s director to terminate petitioner and found that respondent had just cause to terminate. The AU also recommended that petitioner\u2019s allegations of disparate treatment and respondent\u2019s failure to accommodate a handicapping condition be dismissed.\nThe State Personnel Commission, (\u201cCommission\u201d) considered the AU\u2019s recommended decision on 17 and 18 June 1999, and issued a recommendation to respondent to find and conclude that the AU\u2019s 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\u2019s 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\u2019s fees.\nOn 15 September 1999, respondent issued its final decision concluding that there was \u201cjust cause\u201d for petitioner\u2019s termination. Respondent dismissed petitioner\u2019s claims of disparate treatment and failure to accommodate his handicapping condition. An amended final decision was issued on 5 November 1999.\nPetitioner petitioned for judicial review on 12 October 1999. Judge Cashwell heard arguments and affirmed the final decision of respondent. Petitioner appeals.\nII. Issues\nThe issues are (1) whether substantial evidence in the record supports the trial court\u2019s 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\u2019s 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\u2019s findings of fact of petitioner\u2019s disability, and (4) whether petitioner sufficiently alleged a claim for disability discrimination.\nIII. Standard of Review\nChapter 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. \u00a7 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 \u201cde novo\u201d 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 \u201cwhole record\u201d 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).\nDorsey v. UNC-Wilmington, 122 N.C. App. 58, 62-63, 468 S.E.2d 557, 559-60 (1996).\nIn ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 483 S.E.2d 388 (1997), our Supreme Court stated, \u201c[t]he appellate court examines the trial court\u2019s 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.\u201d 345 N.C. at 706, 483 S.E.2d at 392 (citations omitted.) The \u201cwhole record\u201d 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).\nIV. Findings of Fact Seven and Eight\nPetitioner argues that the respondent\u2019s findings of fact seven and eight, later adopted by the superior court, were not supported by substantial evidence. Finding seven states, \u201c[p]etitioner called the group home on the afternoon of February 25, 1998 advising that he had had a \u2018dream\u2019 that he had not given the medications that morning.\u201d 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.\nPetitioner\u2019s testimony is corroborated by other witnesses, and clearly shows that petitioner did more than just \u201ccall[] the group home.\u201d 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\u2019s finding \u201chas a rational basis in the evidence.\u201d Id.\nFinding 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.\nPetitioner 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\u2019s policy by partially pre-writing the notes. Petitioner asserts that he simply forgot to administer the medications, and this omission was not intentional.\nPetitioner\u2019s 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.\nV. Conclusions of Law Five and Six\nPetitioner 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.\nN.C.G.S. \u00a7 126-35 (2001) states \u201c[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reason, except for just cause.\u201d \u201cJust cause\u201d can be established by unacceptable job performance or unacceptable personal conduct. 25 NCAC lJ.0604(c) (2002).\nTitle 25 of the North Carolina Administrative Code defines unacceptable personal conduct as:\n(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) ....\n25 NCAC U.0614(i) (2002).\nThis 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 \u201c \u2018those actions for which no reasonable person could, or should, expect to receive prior warnings.\u2019 \u201d 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, \u201ccareless errors, poor quality work, untimeliness, failure to follow instructions or procedures, or a pattern of regular absences or tardiness[]\u201d 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 \u201cinsubordination, reporting to work under the influence of drugs or alcohol, and stealing or misusing State property.\u201d Id.\nConclusions 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.\nPetitioner 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.\nPetitioner 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 \u201cimproper personal conduct.\u201d Petitioner asserts that if his conduct was reprehensible, it only rose to the level of unsatisfactory job performance.\nTermination for \u201cjust cause\u201d 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 \u201cone 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.\u201d 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\u2019s employment for \u201cjust cause\u201d on the grounds of job performance. If petitioner\u2019s conduct rose to the level of improper personal conduct, his employment could be terminated without any warning.\nPetitioner cites Parks to support his contention that his actions did not rise to \u201cimproper personal conduct.\u201d 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\u2019s actions, leaving his nurses\u2019 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.\nIn both cases, this Court found the employees\u2019 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.\nAfter Parks and Amanini were decided, the N.C. Administrative Code was amended to add \u201cjob-related conduct which constitutes a violation of state or federal law\u201d as grounds for termination for improper personal conduct. 25 NCAC lJ.0614(i)(2) (2002).\nRespondent alleges that petitioner\u2019s actions in pre-writing the medication notes violated 10 NCAC 14V.0209(c)(4) (2002), which requires that \u201c[a] Medication Administration Record (MAR) of all drugs administered to each client must be kept current. Medications administered shall be recorded immediately after administration.\u201d 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).\nPetitioner 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\u2019s failure to administer the medications is negligence, his pre-writing the MARs is a \u201cfalsification of medical records,\u201d a job-related violation of state law.\nIn addition to intentionally filling out medication administration records without actually administering the medication, the respondent and superior court concluded that petitioner also \u201cpre [wrote] high risk intervention[, (\u201cHRI\u201d),] notes describing the client\u2019s responses to taking medications.\u201d This conclusion is supported by substantial evidence.\nThe record contains the HRI reports from 25 February 1998 regarding patients under petitioner\u2019s care. Petitioner\u2019s reports contain substantially the same note on every HRI. In the section titled \u201cNarrative Summary of Activity and Client Progress,\u201d petitioner wrote \u201c[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.\u201d (Emphasis added).\nWith respect to one HRI report, the following dialogue occurred at the hearing:\nQ. If you\u2019ll go about four pages in, [petitioner], where you have the HRI note.\nA. Yes, sir.\nQ. In the middle of the page it says, \u201cStaff monitored and assisted client in taking his medication.\u201d\nA. The same generic note, yes, sir.\nQ. \u201cStaff prepared and instructed client in taking medication. Client evident [sic] progress towards overall goal. Staff praised client after he took his medication.\u201d\nA. Uh-huh.\nQ. That\u2019s a false statement, isn\u2019t it?\nA. Yes, that\u2019s\u2014\nQ. The client had got no medication, isn\u2019t that true?\nA. Yes, sir.\nQ. And you made that statement and signed it yourself, is that correct?\nA. That was a prewritten statement, yes, sir.\nQ. Okay. And it\u2019s false.\nA. Yes, that one Is.\nAlso, respondent asked petitioner if he \u201cintentionally fill[ed] out these HRI notes prior to the time of the event?\u201d Petitioner answered, \u201c[y]es.\u201d Respondent\u2019s 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\u2019s acts established unacceptable personal conduct.\nVI. Findings of Fact Seventeen through Twenty\nPetitioner 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.\nFindings of fact seventeen through twenty state:\n17. The job of Youth Program Assistant (Petitioner\u2019s job) in high-risk adolescent group homes requires an employee to be able to work all shifts as needed by the Mental Health Center.\n18. Petitioner submitted a sick slip to his supervisor requesting a transfer from the night shift because of an alleged sleeping disorder, but Petitioner submitted no other medical information to the Mental Health Center to support this claim. Petitioner refused to sign a medical release form allowing the Mental Health Center to get more information from his doctor regarding his condition. He did not otherwise provide any information regarding his medical condition except his annual physical.\n19. Petitioner did not apply for other vacant YPA III positions although he was aware of their availability[.]\n20. Petitioner\u2019s physical examination completed March 5, 1998; documented no findings other than hypertension.\nAs to finding of fact 17, the testimony of petitioner, co-worker Mims, and Director of Child and Family Services Jenkins, showed that most YPAs worked a specific shift. There is no evidence to support this finding other than respondent\u2019s contention that petitioner was expected to work all shifts needed. Substantial evidence supports the contrary finding. Finding of fact 17 is contrary to substantial evidence in the whole record.\nFinding of fact 18 is also not supported by substantial evidence in the record. The testimony of petitioner, Jenkins, and Murphy, Residential Services Supervisor, supported petitioner\u2019s contention that respondent was aware of petitioner\u2019s health problems by presentment of prescriptions. Petitioner submitted a sick slip to Mr. Mitchell, petitioner\u2019s immediate supervisor, and requested transfer to the day shift. Mr. Mitchell spoke to Diane Toler, Human Resources Director for respondent. Toler advised Mitchell to try and obtain a medical release form for petitioner\u2019s doctor. Respondent never requested such a form. Respondent\u2019s policy was silent on what documentation was needed to show a disability and did not mandate a particular form. The trial court erred in concluding that petitioner only provided respondent with a sick slip. Uncontested evidence shows that petitioner also provided his prescriptions. Petitioner\u2019s failure to sign a medical release is supported by the substantial evidence. Its relevance is dubious given the testimony of petitioner that respondent never requested a form and the testimony of Toler that respondent\u2019s policy did not mandate its use.\nFinding of fact 19, which states petitioner did not apply for other vacant YPA III positions although he knew of their availability, is not supported by substantial evidence. Several exhibits evidence lateral transfer requests by petitioner. The finding is not supported by any evidence and is contradicted by substantial evidence.\nFinding of fact 20, that petitioner\u2019s physical examination documented no findings other than hypertension, is supported by the examination record. Petitioner alleges that the substantial evidence bears witness to petitioner\u2019s other medical problems. Presuming that to be true does not change the validity of the conclusions of the physical examination. Substantial evidence in the record supports the trial court\u2019s finding this fact.\nVII. Disability Discrimination\nAlthough petitioner has alleged and shown there is no rational basis in the evidence for part of findings of fact 17, 18, and 19, petitioner does not assert that he is \u201cdisabled\u201d and entitled to the protection of the North Carolina Persons with Disabilities Protection Act, (\u201cNCPDPA\u201d) and the Americans with Disabilities Act, (\u201cADA\u201d). N.C.G.S. \u00a7 168A (2001); 42 U.S.C. \u00a7 12102(2) (2001).\nTo prevail on an ADA claim, petitioner must prove that: (1) he has a disability as defined by the ADA; (2) he is qualified for the job; and (3) he was unlawfully discriminated against by an employer because of his disability. Johnson v. Trustees of Durham Tech Cmty. Coll., 139 N.C. App. 676, 684, 535 S.E.2d 357, 363 (2000) (citing Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997)). Under the ADA, the term \u201cdisability\u201d is defined as \u201ca physical or mental impairment that substantially limits one or more of the major life activities of such individual[.]\u201d 42 U.S.C. \u00a7 12102(2)(A) (2001). \u201cMajor life activities\u201d are defined as those of central importance to daily life. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197, 151 L. Ed. 2d 615, 631 (2002). \u201cThe impairment\u2019s impact must also be permanent or long-term.\u201d Id. at 196, 151 L. 2d. 2d at 631.\nUnder NCPDPA, a \u201c \u2018[p]erson with a disability\u2019 means any person who (i) has a physical or mental impairment which substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment.\u201d N.C.G.S. \u00a7 168A-3 (2001). The term \u201c[p]hysical or mental impairment\u201d in this subdivision, \u201cexcludes (A) sexual preferences; (B) active alcoholism or drug addiction or abuse; and (C.) any disorder, condition or disfigurement which is temporary in nature leaving no residual impairment.\u201d N.C.G.S. \u00a7 168A-3 (2001) (emphasis supplied).\nPetitioner discussed his headaches with Supervisor Mitchell. He also showed his drug prescriptions to Mitchell, Murphy, and Jenkins. These facts could be sufficient for respondent to find and treat petitioner as a \u201cperson with a disability.\u201d Petitioner failed to fully inform respondent of his condition. Petitioner failed to prove that the depression and sleep disorder qualify as \u201cphysical or mental impairments.\u201d There is no showing that either condition is permanent or long-term as required by the North Carolina statute and federal case law. N.C.G.S. \u00a7 168A-3(7)(a)(iii)(c) (2001), Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197, 151 L. Ed. 2d 615, 631 (2002).\nWe find no error in the trial court\u2019s conclusion that petitioner failed to prove his termination resulted from disability discrimination.\nVIH. Summary\nThere was a rational basis in the evidence for the trial court to make findings of fact seven and eight. These findings support the trial court\u2019s conclusions of law five and six.\nFindings of fact seventeen and nineteen were not supported by substantial evidence in the whole record. Finding twenty was fully supported, and finding eighteen was partially supported by the evidence.\nFindings of fact seventeen through twenty pertain to petitioner\u2019s claim of disability discrimination. The lack of evidence to support these findings is not reversible error. Petitioner failed to prove a claim of disability discrimination.\nWe affirm the award of summary judgment by the trial court, that petitioner engaged in unacceptable personal conduct when he falsified the MARs in violation of state law.\nAffirmed.\nChief Judge EAGLES and THOMAS concur.", "type": "majority", "author": "TYSON, Judge" } ], "attorneys": [ "Browne, Flebotte, Wilson & Horn, P.L.L.C., by Joy Rhyne Webb, for petitioner-appellant.", "Douglas E. Canders for respondent-appellee." ], "corrections": "", "head_matter": "KELVIN J. LEEKS, Petitioner v. CUMBERLAND COUNTY MENTAL HEALTH DEVELOPMENTAL DISABILITY AND SUBSTANCE ABUSE FACILITY, Respondent\nNo. COA02-40\n(Filed 19 November 2002)\n1. Public Officers and Employees\u2014 dismissal \u2014 findings\nCertain of the trial court\u2019s 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.\n2. Public Officers and Employees\u2014 dismissal \u2014 falsification of medical records \u2014 unacceptable personal conduct\nIn 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.\n3. Public Officers and Employees\u2014 dismissal \u2014 findings\u2014not supported by evidence \u2014 no reversible error\nIn 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\u2019s findings concerning petitioner\u2019s 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.\n4. Public Officers and Employees\u2014 dismissal \u2014 disability discrimination \u2014 not proven\nIn 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.\nAppeal 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.\nBrowne, Flebotte, Wilson & Horn, P.L.L.C., by Joy Rhyne Webb, for petitioner-appellant.\nDouglas E. Canders for respondent-appellee." }, "file_name": "0071-01", "first_page_order": 99, "last_page_order": 111 }