DANNY JACOB,
Petitioner,
v
.
Onslow County
No. 00 CVS 2978
ONSLOW COUNTY BOARD
OF HEALTH,
Respondent.
Voerman Law Firm, PLLC, by David E. Gurganus, for petitioner-
appellant.
Cranfill, Sumner & Hartzog, LLP, by Gregory Wenzl Brown, for
respondent-appellee.
EAGLES, Chief Judge.
Danny Jacob (“Jacob”) appeals from an order of the Superior
Court entered 26 February 2001 affirming the Final Decision of the
Onslow County Board of Health to dismiss Jacob from employment.
After careful consideration of the briefs and record, we affirm.
Jacob, the Health Director for the Onslow County Board of
Health (“Board”), was placed on “Investigation with Pay” status
effective 27 October 1998. Jacob received a “Summary of Charges of
Alleged Misconduct by the Health Director” on 7 December 1998.
Jacob provided written responses to the charges and met with
several members of the Board's Personnel Committee on 17 December1998. On 23 December 1998, the Personnel Committee delivered to
Jacob written notice of its conclusion that Jacob had engaged in
unacceptable personal conduct which warranted his immediate
dismissal. The Personnel Committee conducted a pre-dismissal
conference with Jacob on 28 December 1998. The Personnel Committee
sent Jacob a “Notice of Recommendation of Termination and Appeal
Rights” on 30 December 1998. After Jacob appeared before the Board
on 19 January 1999, the Board voted to dismiss him effective 20
January 1999 due to unacceptable personal conduct. Jacob pursued
a contested case hearing before Administrative Law Judge Beecher R.
Gray. Administrative Law Judge Gray issued a Recommended Decision
on 12 October 1999 which recommended that Jacob be reinstated to
his position and receive all back pay and benefits to which he was
entitled. The matter then went before the State Personnel
Commission (“Commission”) which recommended that the Board reject
Administrative Law Judge Gray's recommendation and affirm the
disciplinary action. The Commission's “Recommendation For Decision
To Local Appointing Authority” included the following findings:
14. On approximately October 2, 1998, [Jacob]
had decided to hire Nancy Hall into a
vacant position in the home health
program, subject to confirmation of her
references. . . . Late in the afternoon
that day, [Jacob] learned from Patti
Smith that a problem had arisen with one
of Nancy Hall's references. She reported
this to the Onslow County Personnel
Director. Also on the afternoon of
October 2, 1998, County Commissioner and
Board of Health member Ernest Wright
talked to the County Personnel Director
and County Manager and learned that there
was a problem with Nancy Hall's
references.
15. The next day, Saturday, October 3, 1998,
Commissioner Wright called [Jacob] at
home . . . . During that conversation,
Commissioner Wright asked [Jacob] about
the problem with the hiring of Nancy
Hall. Commissioner Wright was not
personally interested in the hiring of
Nancy Hall, . . . . Commissioner Wright
specifically asked [Jacob] about the
references problem with Nancy Hall and
stated to [Jacob] that references should
have been checked out first. . . .
Commissioner Wright never told [Jacob]
that Patti Smith or anyone on his staff
had let him down.
16. On approximately Monday, October 5, 1998,
and again on October 6, 1998, [Jacob] met
with Patti Smith during the workday at
the Health Department and mentioned his
Saturday conversation with Commissioner
Wright regarding Nancy Hall. [Jacob] gave
Patti Smith the impression or
understanding, either directly or
indirectly, that Commissioner Wright was
upset about not having Nancy Hall's
references checked out and that he might
seek to attempt to have her fired over
the incident. [Jacob] warned Ms. Smith
that if she ever told anyone about
Commissioner Wright's desire to have her
fired, he would stomp her like a “piss
ant.” . . . After a Health Department
management team meeting on October 6,
1998, at which [Jacob] and Patti Smith
had an open disagreement, [Jacob] called
Patti Smith into his office and told her
that she had embarrassed him in front of
the other management team members. He
reminded her that Commissioners Padgett
and Wright wanted her fired because of
her handling of the Nancy Hall
application but that he had covered for
her.
17. On approximately October 13, 1998, the
Onslow County Board of Health conducted a
meeting. Patti Smith attended the
meeting, as did [Jacob]. Patti Smith
approached Commissioner Wright and, in
[Jacob's] presence, asked Commissioner
Wright whether he had told [Jacob] thathe wanted her fired. Commissioner Wright
admitted to talking to [Jacob] about the
hiring of Nancy Hall but denied telling
[Jacob] that he should fire Patti Smith.
18. [Jacob] informed Patti Smith following
the Board of Health meeting that it was
inappropriate for her to have put
Commissioner Wright on the spot during
the meeting. [Jacob] pulled Patti Smith
aside and told her that County
Commissioner Ernie Wright was lying and
reprimanded Patti Smith for “making him
look bad” in a manner that frightened Ms.
Smith.
19. The next day, Patti Smith was summoned to
[Jacob's] office where she was told by
him to “get your coat and hat. We're
going.” When Patti Smith asked [Jacob]
where they were going, he responded “Just
get your hat and coat. You'll find out
when we get there.” [Jacob] repeatedly
refused to inform Patti Smith where he
was taking her. Afraid to refuse, Patti
Smith complied with [Jacob's] orders.
Patti Smith again asked [Jacob] where he
was taking her, to which he again
responded in an intimidating and
threatening manner, “You'll find out when
we get there.” Patti Smith was afraid,
intimidated and frightened that [Jacob]
would cause her bodily harm. [Jacob's]
conduct caused Patti Smith great
apprehension, fear, and stress. [Jacob]
drove himself and Patti Smith to
“Northeast Park,” an isolated and distant
park several miles from the Health
Department. A number of parks are closer
to and. [sic] In fact, at least one park
is adjacent to the Health Department.
[Jacob] drove Patti Smith to an isolated
place so that no witnesses would be
present. At the park, [Jacob] continued
to act in a threatening and intimidating
manner towards Patti Smith. [Jacob]
raised his voice, slapped the table in
front of Patti Smith, and pointed at
Patti Smith menacingly. [Jacob] described
the Onslow County Commissioners as “lying
shitbirds” during this event. [Jacob]
repeatedly slammed his fist into thetable, yelling at Patti Smith, telling
her that she should resign. When [Jacob]
received a telephone call on his cellular
phone, he instructed Patti Smith to get
back into the automobile. [Jacob] then
drove he and Patti Smith back to the
Health Department. Throughout this
encounter, Patti Smith was crying, and
her face was swollen.
20. Throughout the interaction before
departure from the Health Department,
during the drive to the isolated park,
through the encounter at the isolated
park, and during the drive back to the
Health Department, [Jacob] acted in an
intimidating, threatening manner that
expressed an intent to cause physical
and/or mental harm, and did, in fact,
cause mental harm and stress to Patti
Smith.
21. Upon her return to the Health Department,
Patti Smith first went to her office.
She then went to see Francine Reeves,
Personal and Family Health Program
Director and management team member. . .
. Francine Reeves testified at this
hearing that Patti Smith's face was red,
that she had been crying, and that she
appeared scared when Patti Smith came
into her office after the park trip.
. . . .
25. On Monday morning, October 19, 1998,
[Jacob] called Administrative Officer
Smith into his office to inquire about an
assignment that he had asked her to have
on his desk by that morning but which she
had not accomplished. They talked about
this assignment not being completed as
requested and Patti Smith asked whether
[Jacob] was going to do anything about
her job. [Jacob] told Ms. Smith that the
only way he could accomplish her
dismissal would be to “kill or strangle
her.” After Ms. Smith inquired whether
Mr. Jacob was serious, he responded, “No
Patti, I am serious. The only way I'm
going to get rid of you is to kill you or
to strangle you.” Patti Smith testifiedat this hearing that she was frightened
by the comment and believed that it was a
threat against her. She returned to her
office and called the Office of State
Personnel to report the conversation as a
threat to her.
. . . .
28. At some point in 1998 in a discussion
about conflicts and difficulties arising
within various health department
programs, [Jacob] stated to Francine
Reeves, his Director for Personal and
Family Health Programs, that she needed
to get some K-Y Jelly and bend over.
When asked by Francine Reeves what he
meant by that comment, he told her that
she needed to be more flexible. When
asked whether the “You need to get some
K-Y Jelly and bend over” comment offended
her, Francine Reeves stated “Yes.” When
asked whether Francine Reeves considered
the “K-Y Jelly” comment sexual, she
stated “Yes, I knew it had sexual
connotation.”
(Emphasis in original.) The Commission concluded that:
3. The evidence produced in this contested
case hearing demonstrates that Petitioner
Danny Jacob: (a) misrepresented the
intentions and statements of County
officials and accused County officials of
lying, all in an effort to exert control
over subordinate Patti Smith; (b) ordered
Patti Smith to accompany [Jacob] to an
isolated destination far away from the
Health Department, all the while refusing
to inform Patti Smith where he was taking
her, and then proceeding to berate, yell,
slam his fist into a table, threaten, and
otherwise intimidate Patti Smith, for the
purpose of persuading Patti Smith to
resign from the Health Department; (c)
stated to Patti Smith that the only way
he could accomplish the termination of
her employment would be to “kill her or
strangle her,” and that he then stated,
“I'm serious, I'm going to kill you;” (d)
stated and uttered to subordinate
Francine Reeves that she “needed to getsome K-Y Jelly and bend over,” and that
Francine Reeves considered the comment
offensive and including sexual
connotations. Each of these acts,
independently or collectively, constitute
unacceptable personal misconduct.
(Emphasis in original.)
On 8 August 2000, the Board voted to accept without
modification the Recommended Decision of the State Personnel
Commission. Jacob petitioned for Judicial Review which was heard
on 12 February 2001 before Judge Ernest B. Fullwood in Onslow
County Superior Court. Judge Fullwood ordered that the decision of
the Board be affirmed. Jacob appeals.
Jacob raises two issues on appeal. First, whether the
superior court erred when it applied an inappropriate standard of
review. Second, whether the superior court erred in affirming the
Board's decision that Jacob was dismissed for just cause and was
not denied due process. After careful consideration, we affirm.
In our review of a superior court's order which reviewed an
agency decision, the proper scope is to examine “'the trial court's
order for error of law. The process has been described as a
twofold task: (1) determining whether the trial court exercised the
appropriate scope of review and, if appropriate, (2) deciding
whether the court did so properly.'” ACT-UP Triangle v. Commission
for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)
(quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C. App.
668, 675, 443 S.E.2d 114, 118-19 (1994)).
“The proper standard of review by the trial court depends upon
the particular issues presented by the appeal.” Deep RiverCitizens' Coalition v. North Carolina Dept. of Environment and
Natural Resources, __ N.C. App. __, __, 560 S.E.2d 814, 816 (2002).
“If the petitioner alleges that the agency decision is based on an
error of law, the proper review is de novo review.” Hedgepeth v.
N.C. Div. of Servs. for the Blind, 142 N.C. App. 338, 346, 543
S.E.2d 169, 174 (2001). “'De novo' review requires a court to
consider a question anew, as if not considered or decided by the
agency.” Amanini v. N.C. Dept. of Human Resources, 114 N.C. App.
668, 674, 443 S.E.2d 114, 118 (1994). “If appellant questions
whether the agency's decision was supported by the evidence or
whether it was arbitrary or capricious, then the reviewing court
must apply the whole record test.” Deep River Citizens' Coalition,
__ N.C. App. at __, 560 S.E.2d at 816. “The 'whole record' test
requires the reviewing court to examine all competent evidence (the
'whole record') in order to determine whether the agency decision
is supported by 'substantial evidence.'” Gray v. North Carolina
Dept. of Environment, Health and Natural Resources, __ N.C. App.
__, __, 560 S.E.2d 394, 398 (2002) (citations and quotations
omitted). “Substantial evidence is 'such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion'
and 'is more than a scintilla or a permissible inference.'” Rector
v. N.C. Sheriffs' Educ. and Training Standards Comm., 103 N.C. App.
527, 532, 406 S.E.2d 613, 616-17 (1991) (quoting Lackey v. Dept. of
Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982)).
However, the whole record test “does not
permit the court 'to replace the [agency's]
judgment as between two reasonably conflicting
views, even though the court could justifiablyhave reached a different result had the matter
been before it de novo,'”; but “merely gives a
reviewing court the capability to determine
whether an administrative decision has a
rational basis in the evidence.”
Zimmerman v. Appalachian State University, __ N.C. App. __, __, 560
S.E.2d 374, 380 (2002) (citations omitted).
Jacob first contends that the superior court did not correctly
apply the appropriate standards of review in that the superior
court “failed to articulate the appropriate standard of review as
applied to” each issue raised by Jacob in his petition for judicial
review.
We must determine if the superior court applied the
appropriate method of review. “[I]n reviewing a decision from an
agency, a trial court's order must: (1) set out the appropriate
standards of review, and (2) 'delineate which standard the court
utilized in resolving each separate issue.'” Gray, __ N.C. App. at
__, 560 S.E.2d at 399 (citations omitted).
Here, Jacob contended in his petition for judicial review that
the Board's decision: violated his due process rights; was affected
by various errors of law; was based upon unlawful procedure; was
unsupported by substantial evidence; and was arbitrary and
capricious. The proper method of review by the trial court for
constitutional violations, unlawful procedure, and errors of law is
de novo review. Dialysis Care of N.C., LLC v. N.C. Dep't of Health
& Human Servs., 137 N.C. App. 638, 646, 529 S.E.2d 257, 261, aff'd,
353 N.C. 258, 538 S.E.2d 566 (2000). “When it is alleged that a
final agency decision was not supported by the evidence or wasarbitrary or capricious, this Court must apply the 'whole record'
test.” Id.
Here, the superior court's order states:
After applying all appropriate standards of
review, including a de novo review of
questions of law as well as the “whole record
test” regarding questions of fact, to the
State Personnel Commission's Recommendation to
Local Appointing Authority which was accepted,
in full, without modification, as the Final
Decision of the Onslow County Board of Health,
this Court also finds that the Onslow County
Board of Health's Final Decision was neither
arbitrary nor capricious, had been reached
upon lawful procedures, had not been affected
by errors of law, and was supported by
substantial evidence in view of the entire
record.
“[W]hile the court's order in effect set[s] out the applicable
standards of review, it failed to delineate which standard the
court utilized in resolving each separate issue raised by the
parties.” In re Appeal of Willis, 129 N.C. App. 499, 503, 500
S.E.2d 723, 726 (1998). However, even though “the trial court did
not explicitly state the standard employed in its review of a
specific issue, we can discern from the record which standard of
review was applied.” Zimmerman, __ N.C. App. at __, 560 S.E.2d at
380. Here, we hold that the superior court clearly applied the de
novo standard of review to all questions of law.
Next, we must determine if the trial court properly applied
the appropriate standards of review. Jacob contends that the
superior court erred in affirming the Board's decision that Jacob
was dismissed for just cause and was not denied due process. We
are not persuaded. Jacob argues that the Board's findings are arbitrary and
capricious. Jacob contends that the record does not support a
conclusion that his conduct constituted unacceptable personal
conduct. Jacob argues that even if his conduct constituted grossly
inefficient job performance, he was not provided with the required
warnings to justify dismissal.
We review whether the decision was supported by the evidence
and was arbitrary or capricious using the “whole record test.”
Testimony by Ernest Wright, Francine Reeves, and Pattie Smith
supports Findings of Fact numbers 14-21, 25, and 28. We note that
under the “whole record” test, “[t]he trial court is not permitted
to substitute its judgment for the agency's judgment when there are
two reasonably conflicting views.” Ritter v. Dept. of Human
Resources, 118 N.C. App. 564, 568, 455 S.E.2d 901, 903, disc.
review denied, 340 N.C. 360, 458 S.E.2d 190 (1995). Here, our
review of the entire record shows that the superior court was
correct that the Board's decision was supported by substantial
evidence and was neither arbitrary nor capricious.
“[T]his Court has held that a superior court's determination
of whether a termination was for 'just cause' based upon personal
misconduct is a question of law” which should be reviewed de novo.
Souther v. New River Area Mental Health, 142 N.C. App. 1, 4, 541
S.E.2d 750, 752, aff'd, 354 N.C. 209, 552 S.E.2d 162 (2001). Here,
the superior court's order stated that:
After thorough review of the record
including the parties' pleadings, the parties'
memoranda of law, all relevant statutes as
well as the presentations and arguments inopen court, this Court finds that the Onslow
County Board of Health possessed just cause
when it dismissed Petitioner Danny Jacob from
his employment . . . .
A career state employee may be discharged only for just cause.
Gainey v. N.C. Dept. of Justice, 121 N.C. App. 253, 259, 465 S.E.2d
36, 41 (1996); G.S. § 126-35(a). “Just cause may result either
from unacceptable job performance or unacceptable personal
conduct.” Souther, 142 N.C. App. at 5, 541 S.E.2d at 753. An
employee discharged for unacceptable personal conduct is not
entitled to receive warnings. Id. The North Carolina
Administrative Code provides that unacceptable personal conduct
includes:
(1) conduct for which no reasonable person
should expect to receive prior warning;
or
(2) job related conduct which constitutes
violation of state or federal law; or
. . . .
(5) conduct unbecoming an employee that is
detrimental to the agency's service; or
(6) the abuse of client(s), patient(s),
student(s) or a person(s) over whom the
employee has charge or to whom the
employee has a responsibility, or of an
animal owned or in the custody of the
agency.
N.C. Admin. Code tit. 25, r. 1I.2304(b) (June 2002). The
discharged employee “has the burden of proving that the agency's
decision was improper.” Souther, 142 N.C. App. at 5, 541 S.E.2d at
753. Here, the Board concluded that the following actions
constituted “just cause” in the form of unacceptable personal
conduct:
Jacob: (a) misrepresented the intentions and
statements of County officials and accused
County officials of lying, all in an effort to
exert control over subordinate Patti Smith;
(b) ordered Patti Smith to accompany [Jacob]
to an isolated destination far away from the
Health Department, all the while refusing to
inform Patti Smith where he was taking her,
and then proceeding to berate, yell, slam his
fist into a table, threaten, and otherwise
intimidate Patti Smith, for the purpose of
persuading Patti Smith to resign from the
Health Department; (c) stated to Patti Smith
that the only way he could accomplish the
termination of her employment would be to
“kill her or strangle her,” and that he then
stated, “I'm serious, I'm going to kill you;”
(d) stated and uttered to subordinate Francine
Reeves that she “needed to get some K-Y Jelly
and bend over,” and that Francine Reeves
considered the comment offensive and including
sexual connotations.
(Emphasis in original.) These actions constitute “conduct for
which no reasonable person should expect to receive prior warning,”
“conduct unbecoming an employee that is detrimental to the agency's
service,” or the abuse of a person “over whom the employee has
charge.” N.C. Admin. Code tit. 25, r. 1I.2304(b). These actions
constitute unacceptable personal conduct and support a conclusion
that just cause existed for Jacob's dismissal. Since Jacob was
dismissed for unacceptable personal conduct, no warnings were
required.
Jacob further contends that he was denied due process in the
termination proceedings. Specifically, Jacob argues that he was:
not given a proper pre-dismissal conference; not provided noticeof a pre-dismissal conference; and not provided with specific
written reasons for his dismissal. We are not persuaded.
The record on appeal includes a copy of the 23 December 1998
memorandum provided to Jacob which advises him that a pre-dismissal
conference will be held on 28 December 1998. Jacob's “Statement
of Petitioner” in support of his request for a contested case
hearing states “[i]n accordance with the instructions contained in
the December 23, 1998 letter, . . . [Jacob] appeared before the
Personnel Committee . . . on December 28, 1998.” At this meeting,
the requisite pre-dismissal conference was held. Jacob's “Statement
of Petitioner” also notes that “[o]n or about January 2, 1999,
[Jacob] received a document which . . . is a 'Notice of
Recommendation of Termination and Appeal Rights.'” This letter
stated:
The allegations and evidence found in the
previous notices to you are expressly
incorporated herein, are attached hereto, and
should be considered as written reasons for
the dismissal under N.C.A.C. 1I.2304(d).
Based upon our investigation, and the two
conferences with you regarding the charges and
evidence, the Committee has determined that
the allegations and evidence of you [sic]
misconduct are credible and warrant your
dismissal.
(Emphasis added.) These earlier notices identified the four
instances of personal conduct found by the Board. The attached and
incorporated notices “enable[d] [Jacob] to conduct an effective
appeal of the disciplinary action taken . . . by notifying him of
the reasons for the disciplinary action and advising him of his
right to appeal.” Meyers v. Dept. of Human Resources, 92 N.C. App.193, 197, 374 S.E.2d 280, 283 (1988), aff'd, 332 N.C. 655, 422
S.E.2d 576 (1992). Our review of the record confirms that the
superior court correctly determined that Jacob was afforded the
procedural rights to which he was entitled.
Accordingly, the decision of the superior court is affirmed.
Affirmed.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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