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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
MICHAEL H. VANDERBURG, Petitioner, v. NC DEPARTMENT OF REVENUE,
Filed: 1 March 2005
1. Public Officers and Employees_probationary non-career employee_jurisdiction of
N.C. G.S. § 126-36(a) allows the State Personnel Commission to review the religious
discrimination claims of a probationary non-career employee.
2. Administrative Law_incorrect standard of review by trial court_record sufficient
In cases appealed from an administrative tribunal, a trial court's use of an incorrect
standard of review does not automatically require remand. Here, the whole record and the
transcripts were sufficient to consider the issue without remanding the case even though the trial
court did not specify the standard it applied, detail its findings of fact, or delineate its
conclusions of law.
3. Public Officers and Employees--Personnel Commission final decision--religious
discrimination--whole record review--evidence sufficient
The trial court's order affirming a State Personnel Commission's final decision was
affirmed where plaintiff offered and the Commission found substantial evidence to show that
N.C. Department of Revenue's proffered reasons for dismissal of plaintiff probationary
employee were a pretext for religious discrimination. A whole record review does not permit the
appellate court to substitute its judgment for the Commission's findings of fact.
Judge WYNN concurring.
Appeal by respondent from order entered 22 December 2003 by
Judge Narley L. Cashwell in Wake County Superior Court. Heard in
the Court of Appeals 11 January 2005.
Ferguson, Stein Chambers, Adkins, Gresham & Sumter, P.A., by
John W. Gresham, for petitioner-appellee.
Attorney General Roy Cooper, by Special Deputy Attorney
General George W. Boylan and Assistant Attorney General
Michael D. Youth, for respondent-appellant.
The North Carolina Department of Revenue (NCDOR) appeals an
order affirming the Final Agency Decision of the State Personnel
Commission (the Commission). The Commission adopted the
recommended decision of the Administrative Law Judge (ALJ) that
overturned the dismissal of Michael H. Vanderburg (Vanderburg)
and reinstated him to his former position. We affirm.
Vanderburg was employed with the NCDOR in January 1999 as a
Revenue Officer Trainee under a two-year probationary period.
Vanderburg was initially assigned to the Charlotte Revenue Office
under the supervision of Martha Calhoun (Calhoun). On 27 May
1999, Calhoun met with Vanderburg and reviewed his performance from
January through April 1999. He received good and very good
ratings in all categories. Calhoun noted that Vanderburg was
thorough in his follow-up and investigation of taxpayers and very
good in following departmental policies. Calhoun concluded by
stating Vanderburg handles himself in a professional manner and is
respectful of his co-workers and the public.
Shortly after this review, Vanderburg accepted a position with
a church as an associate pastor. He subsequently completed and
submitted a NCDOR form entitled Request for Secondary Employment.
The request was approved by the NCDOR's Assistant Secretary, Dewey
Sanders (Sanders), on 29 June 1999. Vanderburg continued to
maintain his workload after starting his pastorship.
On 1 July 1999, Vanderburg was reassigned to work under the
supervision of Dean Barnes (Barnes). On 22 July 1999, Vanderburg
met with Barnes and Chris Pappas (Pappas), Office Manager for theCollections Division in Charlotte. Barnes and Pappas told
Vanderburg that they had received two anonymous complaints that
religious materials displayed in his work cubicle were offensive.
Vanderburg was ordered to remove all religious items from his walls
and the screen saver from his computer. Barnes also stated that he
was concerned with Vanderburg's associate pastor position.
Although Vanderburg was ordered to remove personal religious items
from his cubicle, other employees continued to display materials in
their cubicles with religious themes.
On 23 July 1999, Pappas approached Vanderburg's father, an
auditor with the NCDOR. Pappas confirmed that he directed
Vanderburg to remove all personal materials from his cubicle.
Vanderburg's father advised Pappas that Vanderburg had drafted a
letter to be forwarded to Sanders. Pappas became agitated. He
referred to Vanderburg's cubicle as a shrine and indicated that
since Vanderburg was still in training, he could just fire him
right now. Pappas conceded that Vanderburg did real good work
and worked very hard.
Pappas met with Vanderburg to discuss their earlier meeting.
Vanderburg gave Pappas his letter to Sanders, which Pappas set
aside. He told Vanderburg that there may have been a
misunderstanding about the directive to remove all personal items
from his cubicle. Pappas explained he only meant for a newspaper
article and lighthouse to be removed. Vanderburg immediately
removed the items. Pappas then advised Vanderburg that there was
no need to send his letter to Sanders, as there would be norepercussions or retaliation. Vanderburg agreed, but asked Pappas
to place the letter to Sanders in his personnel file.
Vanderburg's caseload increased substantially in August 1999
after the meetings with Barnes and Pappas. The NCDOR acknowledged
that it would periodically equalize caseloads among its employees.
However, no such equalization was made that August. Despite the
expanded caseload, Vanderburg was able to significantly reduce
pending cases by the end of September 1999.
On 18 November 1999, Barnes performed an interim performance
review of Vanderburg. The review asserted that Vanderburg had
priority cases in his caseload which need work or follow-up. The
interim review did not reference the unusual increase in
Vanderburg's caseload in August 1999, the non-equalization of
Vanderburg's cases, or his positive efforts in reducing his
caseload that Fall.
On 19 November 1999, Vanderburg met with Pappas and Ralph
Foster (Foster), Pappas's superior and Director of the Western
Collection Division. In the meeting, Foster commented that he had
specific concerns about Vanderburg's future with the NCDOR. An
argument ensued and Foster called Vanderburg a smart ass and a
smart butt. Vanderburg requested transfer to the Gastonia
Vanderburg's last day of work in the Charlotte office was 24
November 1999. That day, Pappas informed Vanderburg that he would
not receive an annual raise. Vanderburg sent a letter to Sanders
in late November 1999 detailing the events that had occurred from
July 1999 forward, including Foster's behavior on 19 November 1999. Foster met with Vanderburg again in December 1999 after he was
transferred to Gastonia. Foster stated that Vanderburg could be
fired at anytime. He also showed Vanderburg a copy of his
November letter to Sanders and stated, what do you think you were
doing; you really messed up now; do you think Dewey Sanders would
listen to you. Foster ended the meeting by telling Vanderburg
that he was waiting for the opportunity to dismiss him.
In Gastonia, Vanderburg was initially assigned personal income
tax cases. On 1 June 2000, Vanderburg received an annual review.
His supervisors, Libby McAteer (McAteer) and J.B. Williams
(Williams) stated they were pleased and that Vanderburg was doing
a great job. The written review ended with the comment, keep up
the good work.
Vanderburg was assigned to the business tax division in June
2000. His immediate supervisors described him as very helpful,
frequently checking with his supervisor, and working very hard to
reduce the territory's caseload.
In September 2000, the NCDOR reorganized the Collections
Division. Robie McLamb (McLamb) became the Director of
Collections for the State. On 23 October 2000, McLamb met with
McAteer and Williams to discuss Vanderburg's employment. He
explained that Vanderburg was behind on his caseload and appeared
to not be performing his duties. McAteer and Williams explained to
McLamb that Vanderburg's large caseload was due to him inheriting
the largest territory in Gastonia with a four-month backlog.
espite McAteer and Williams speaking favorably of Vanderburg,
McLamb told them Vanderburg would be dismissed. On 24 October 2000, McLamb met with Vanderburg and expressed
several concerns. McLamb first pointed to the large number of
pending cases in Vanderburg's territory as an issue. McLamb also
stated that he had heard that Vanderburg had trouble getting along
with people in authority. McLamb further mentioned that Pappas had
a problem with Vanderburg.
On 9 November 2000, Vanderburg filed a pro se petition with
the Office of Administrative Hearings (OAH) alleging that he was
threatened with dismissal for poor performance despite his history
of positive performance reviews.
Vanderburg met with McLamb on 9 November 2000
explained that he filed a petition with the OAH. McLamb informed
Vanderburg that he would not be retained beyond the probationary
period. Vanderburg was provided two weeks severance.
Vanderburg filed a second petition on 6 December 2000
violations of rights protected by N.C. Gen. Stat. § 126-36. On 18
December 2000, the OAH consolidated the petitions. Vanderburg and
the NCDOR filed prehearing statements. The NCDOR's prehearing
statement acknowledged that the governing statute in the case was
N.C. Gen. Stat. § 126-36 and that the issue to be resolved was
whether Vanderburg's termination during his probationary period
arose from either discrimination based on his religious practices
and/or retaliation for his opposition to alleged discrimination.
On 31 December 2001, the ALJ found that: (1) Vanderburg
proffered substantial evidence to show he was dismissed in
violation of his protected rights; (2) the NCDOR's proffered reason
for dismissing Vanderburg was not worthy of belief; and (3)Vanderburg's termination was retaliatory due to his protest
against what he believed to be encroachment by [the NCDOR] on his
protected rights of religious expression. The ALJ recommended
Vanderburg be reinstated as a permanent employee within the NCDOR
with full benefits.
Following a whole record review, the Commission adopted the
ALJ's recommendation. Under N.C. Gen. Stat. § 150B-45, the NCDOR
appealed to Wake County Superior Court. Both parties submitted
proposed recommended decisions to the trial court for review. The
trial court's order stated it reviewed the petition, the record
filed by [Vanderburg], and the submissions by counsel for both
[parties] . . . heard extensive argument of counsel, and affirmed
the Commission's decision.
The NCDOR appeals.
The issues are whether: (1) the Commission has jurisdiction
over an appeal from a case filed by a probationary employee of the
NCDOR; and (2) the trial court properly reviewed and affirmed the
III. Subject Matter Jurisdiction
 The NCDOR contends Vanderburg, as a probationary non-
career employee, may not avail himself to the protections of the
statutes and procedures before the Commission concerning alleged
discriminatory practices. We disagree.
A. N.C. Gen. Stat. § 126-1 et seq.
N.C. Gen. Stat. § 126-1 et seq. govern the State Personnel
System. It includes the appeals process for claims involving
unlawful employment practices by State agencies. Not all Stategovernment employees qualify for the entire appeals process. N.C.
Gen. Stat. § 126-5 categorizes certain employees as exempt from
the protections and procedures in Chapter 26. Specifically to this
issue, N.C. Gen. Stat. § 126-5c)(1) (2003) states, except as to
the provisions of Articles 6 and 7 of this Chapter, the provisions
of this Chapter shall not apply to . . . [a] State employee who is
not a career State employee as defined by this Chapter. This rule
is also reiterated in N.C. Gen. Stat. § 126-34 (2003), which limits
the application of Chapter 126 to career State employees:
Unless otherwise provided in this Chapter, any
career State employee having a grievance
arising out of or due to the employee's
employment . . . who alleges unlawful
harassment because of the employee's age, sex,
race, color, national origin, religion, creed,
or handicapping condition as defined by G.S.
168A-3 shall submit a written complaint to the
employee's department or agency.
In conjunction with the above statutes, the NCDOR argues
Chapter 126 applies only to career State employees and cites
exclusively to Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577
S.E.2d 154, cert. denied, 357 N.C. 470, 584 S.E.2d 296 (2003), as
authority. In Woodburn, the petitioner was a member of the
Instructional and Research Staff for North Carolina State
University, who was dismissed after an extended leave due to a
pregnancy. 156 N.C. App. at 550-53, 577 S.E.2d at 155-57. The
petitioner filed a contested case with the Commission alleging
gender discrimination under N.C. Gen. Stat. § 126-16 (2001) and §
126-34.1 (2001). Id. at 550, 577 S.E.2d at 155. In resolving the issue of whether the Commission had
jurisdiction, this Court followed our decision in Hillis v.
Winston-Salem State Univ., 144 N.C. App. 441, 549 S.E.2d 556
(2001). Id. at 555, 577 S.E.2d at 158. We noted the distinction
in the statutes discussed above between certain classes of State
employees in determining who was allowed or eligible to seek
redress from employment discrimination through the Commission. Id.
at 554-55, 577 S.E.2d at 158. This Court determined the appeals
process of Chapter 126 did not apply to the petitioner, as N.C.
Gen. Stat. § 126-5(c1)(8) specifically exempts Instructional and
research staff, physicians, and dentists of The University of North
Carolina from the provisions of [Chapter 126], except the
provisions of Articles 6 and 7. See id. at 555, 577 S.E.2d at
158. The Woodburn Court further recognized that the university
system provided the petitioner with other internal review
procedures in lieu of Chapter 126. Id.
B. N.C. Gen. Stat. § 126-36(a)
Where discriminatory actions prohibited by the North Carolina
and United States Constitutions are alleged, Chapter 126 does not
exclude non-career employees. N.C. Gen. Stat. § 126-36(a) (2003)
Any State employee or former State employee
who has reason to believe that employment,
promotion, training, or transfer was denied
the employee or that demotion, layoff,
transfer, or termination of employment was
forced upon the employee in retaliation for
opposition to alleged discrimination or
because of the employee's age, sex, race,
color, national origin, religion, creed,
political affiliation, or handicapping
condition as defined by G.S. 168A-3 except
where specific age, sex or physicalrequirements constitute a bona fide
occupational qualification necessary to proper
and efficient administration, shall have the
right to appeal directly to the State
N.C. Gen. Stat. § 126-39 (2003) supports this premise by
stating, [e]xcept for positions subject to competitive service and
except for appeals brought under G.S. 126-16, 126-25, and 126-36,
this Article applies to all State employees who are career State
employees at the time of the act, grievance, or employment practice
complained of. (Emphasis supplied).
Our Supreme Court recognized that N.C. Gen. Stat. § 126-36
permitted [a]ny State employee or former State employee an appeal
alleging discrimination to the Commission in Dep't of Correction v.
Gibson, 308 N.C. 131, 135-36, 301 S.E.2d 78, 82 (1983). There, the
petitioner had been with respondent for less than two years and was
not a career State employee as defined by N.C. Gen. Stat. § 126-
1.1. Id. However, the Court did not question the Commission's
jurisdiction over the case and set forth the legislative intent
behind the statute, stating:
[N.C. Gen. Stat. § 126-36] relates only to
State employees and is consistent with the
legislative policy announced in G.S. 143-422.2
It is the public policy of this State to
protect and safeguard the right and
opportunity of all persons to seek, obtain and
hold employment without discrimination or
abridgement on account of race, religion,
color, national origin, age, sex or handicap
by employers which regularly employ 15 or more
It is recognized that the practice of denying
employment opportunity and discriminating inthe terms of employment foments domestic
strife and unrest, deprives the State of the
fullest utilization of its capacities for
advancement and development, and substantially
and adversely affects the interests of
employees, employers, and the public in
Gibson, 308 N.C. at 136, 301 S.E.2d at 82.
In Clay v. Employment Security Comm., our Supreme Court
recognized that an applicant for employment with the State
government has a right to appeal to the Personnel Commission . .
. under N.C.G.S. § 126-36.1 on a discrimination claim. 340 N.C.
83, 85, 457 S.E.2d 725, 727 (1995). As in Gibson, the Clay Court
recognized a right to appeal to the Commission despite
acknowledging the petitioners were not career State employees for
purposes of Chapter 126. Id. at 86, 457 S.E.2d at 727; Gibson, 308
N.C. at 131, 301 S.E.2d at 78 (neither of the two petitioners had
worked for the State for two years).
Here, Vanderburg was a probationary employee with the NCDOR
during the time at issue and was serving the last months of his
probationary period when he was dismissed. Substantial evidence
exists to show his termination from the NCDOR resulted from
conflict over his religious practices. Vanderburg's complaint
alleged, harassment, retaliation, and discrimination against me
due to my religion. He argues the Commission has jurisdiction
over the matter under N.C. Gen. Stat. § 126-36(a). We agree.
While N.C. Gen. Stat. § 126-5(c)(1) provides that Chapter 126
does not apply to non-career State employees, we find the language
of N.C. Gen. Stat. § 126-36(a) to be directly on point toVanderburg's claim. See Merritt v. Edwards Ridge, 323 N.C. 330,
337, 372 S.E.2d 559, 563 (1988) (where one statute deals with a
particular issue in specific detail and another speaks to the same
issue in broad, general terms, the particular, specific statute
will be construed as controlling, absent a clear legislative intent
to the contrary); Trustees of Rowan Tech. v. Hammond Assoc., 313
N.C. 230, 238, 328 S.E.2d 274, 279 (1985) (Where one of two
statutes might apply to the same situation, the statute which deals
more directly and specifically with the situation controls over the
statute of more general applicability.).
N.C. Gen. Stat. § 126-36 specifically allows [a]ny State
employee or former State employee to appeal claims alleging
discrimination to the Commission. A statute that is clear and
unambiguous must be construed using its plain meaning. Burgess v.
Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136
(1990). The pertinent language of N.C. Gen. Stat. §§ 126-36 and
126-39 remained unchanged during repeated legislative amendments to
N.C. Gen. Stat. § 126 et seq., which the NCDOR cites. See 1998
N.C. Sess. Laws ch. 135, § 4 (N.C. Gen. Stat. § 126-36); see also
1991 N.C. Sess. Laws ch. 354, § 7 (N.C. Gen. Stat. § 126-39) (no
legislative intent to the contrary shown in the most recent
amendments). Further, our Supreme Court in Gibson has held that
the public policy of our State allows non-career and former State
employees the right to a hearing with the Commission concerning
allegations of discrimination. 308 N.C. at 136, 301 S.E.2d at 82.
Our Supreme Court's decision in Clay strengthens this
determination. 340 N.C. at 83, 457 S.E.2d at 725. Woodburn is not controlling to the facts at bar due to N.C.
Gen. Stat. §§ 126-36 and 126-39, our Supreme Court's interpretation
of N.C. Gen. Stat. § 126-36 in Gibson and Clay, and the lack of
legislative intent indicating a contrary interpretation. In
Woodburn, this Court did not address N.C. Gen. Stat. §§ 126-36 or
126-39 in its opinion determining the Commission's jurisdiction.
156 N.C. App. at 549, 577 S.E.2d at 154. Any language in Woodburn
limiting N.C. Gen. Stat. § 126-36 to career State employees is
We hold Vanderburg's employment is not exempted by N.C. Gen.
Stat. § 126-5 from the appeals process through the Commission in
Chapter 126. Although Vanderburg is not a career State employee,
N.C. Gen. Stat. § 126-36(a) allows the Commission to review his
claims derived from alleged discrimination on the basis of
Vanderburg's petition for hearing was properly before the
Commission under N.C. Gen. Stat. § 126-36(a). The NCDOR's argument
IV. The Trial Court's Review of the Commission's Order
 The NCDOR contends the trial court erred by: (1) not
articulating a standard of review; (2) applying an incorrect
standard of review; and (3) affirming the Commission's order
because substantial evidence supported the findings of fact and the
conclusions of law were not erroneous. We disagree.
A. Sufficiency of the Trial Court's Order
In cases appealed from an administrative tribunal, a trial
court's use of an incorrect standard of review does notautomatically require remand. N.C. Dep't of Env't & Natural Res.
v. Carroll, 358 N.C. 649, 665, 599 S.E.2d 888, 898 (2004). If the
record enables the appellate court to decide whether grounds exist
to justify reversal or modification of that decision under N.C.
Gen. Stat. § 150B-51(b), the reviewing court may make that
determination. Shackleford-Moten v. Lenoir Cty. DSS, 155 N.C. App.
568, 572, 573 S.E.2d 767, 770 (2002), cert. denied, 357 N.C. 252,
582 S.E.2d 609 (2003).
Here, the trial court's order stated:
Based upon its review the Court determines
that the Findings of Fact by the State
Personnel Commission are supported by the
evidentiary record, the Conclusions of Law are
consistent with the Findings of Fact and the
Conclusions of Law are not erroneous as a
matter of law.
Therefore, the Commission's Final Agency
Decision is affirmed.
Based upon the foregoing determination by the
Court, it is hereby ORDERED that the Petition
for Judicial Review is denied and the matter
is remanded to the State Personnel Commission
for such further proceedings as are necessary
to carry out the relief set out in
Commission's Final Agency Decision.
The order does not specify the standard of review the court applied
in making its decision. It refers to the Commission's findings of
fact and conclusions of law and adopts them in toto, but does not
restate them in its order. Reviewing solely the trial court's
order, we cannot determine whether it properly reviewed the
Commission's final decision.
In accordance with Carroll, and after review of the record and
transcripts, we find them sufficient to consider the issue without
remanding the case to the trial court to further address thestandard of review, findings of fact, and conclusions of law. 358
N.C. at 665, 599 S.E.2d at 898.
B. Review of Administrative Decisions
 Our Supreme Court has held that upon judicial review of
an administrative agency's final decision, the substantive nature
of each assignment of error dictates the standard of review.
Carroll, 358 N.C. at 658, 599 S.E.2d at 894 (citations omitted).
N.C. Gen. Stat. § 150B-51(b) (2003) states:
[I]n reviewing a final decision, the court may
affirm the decision of the agency or remand
the case to the agency or to the
administrative law judge for further
proceedings. It may also reverse or modify
the agency's decision, or adopt the
administrative law judge's decision if the
substantial rights of the petitioners may have
been prejudiced because the agency's findings,
inferences, conclusions, or decisions are:
(1) In violation of constitutional
(2) In excess of the statutory authority or
jurisdiction of the agency;
(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
This standard of review applies to judicial review of an
agency's decision, whether at the superior or the appellate court
level. See Rector v. N.C. Sheriffs' Educ. and Training Standards
Comm., 103 N.C. App. 527, 532, 406 S.E.2d 613, 616-17 (1991)
(superior court review); see also Crist v. City of Jacksonville,131 N.C. App. 404, 405, 507 S.E.2d 899, 900 (1998) (appellate court
review) (citing Shoney's v. Bd. of Adjustment for City of
Asheville, 119 N.C. App. 420, 421, 458 S.E.2d 510, 511 (1995)).
1. Law-Based Inquiries
Subparts (1) through (4) of N.C. Gen. Stat. § 150B-51(b) are
characterized as law-based inquiries. Carroll, 358 N.C. at 659,
599 S.E.2d at 894 (citation omitted). Reviewing courts consider
such questions of law under a de novo standard. Harris v. Ray
Johnson Constr. Co., 139 N.C. App. 827, 829, 534 S.E.2d 653, 654
(2000). De novo review requires the court to consider 'the matter
anew and freely substitute its own judgment for the agency's.'
Mann Media, Inc. v. Randolph Cty Planning Bd., 356 N.C. 1, 13-14,
565 S.E.2d 9, 17 (2002) (quoting Sutton v. N.C. Dep't of Labor, 132
N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999)).
Here, the only law-based inquiry NCDOR assigns error to is
whether the Commission had jurisdiction over Vanderburg, a
probationary employee, to consider his complaints. Having
determined jurisdiction exists in this case, we now consider the
NCDOR's argument that the Commission's findings of fact were not
supported by substantial evidence.
2. Fact-Based Inquiries
N.C. Gen. Stat. § 150B-51(b)(5) and (b)(6) are fact-based
inquiries. Carroll, 358 N.C. at 659, 599 S.E.2d at 894 (citation
omitted). Fact-intensive issues 'such as sufficiency of the
evidence to support [an agency's] decision are reviewed under the
whole-record test.' Id. (quoting In re Greens of Pine Glen Ltd.
Part., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). Thisstandard of review requires the reviewing court to analyze all the
evidence provided in the record to determine whether there is
substantial evidence to justify the agency's decision. Carroll,
358 N.C. at 660, 599 S.E.2d at 895. Substantial evidence is
relevant evidence a reasonable mind might accept as adequate to
support a conclusion. N.C. Gen. Stat. § 150B-2(8b) (2003). A
reviewing court may not substitute its judgment for the agency's,
even if a different conclusion may result under a whole record
review. Watkins v. N.C. State Bd. of Dental Exam'rs, 358 N.C. 190,
199, 593 S.E.2d 764, 769 (2004).
a. Religious Discrimination
In Gibson, our Supreme Court adopted the standard used by the
United States Supreme Court in proving discrimination. 308 N.C. at
137, 301 S.E.2d at 82 (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 36 L. Ed. 2d 668 (1973)).
(1) The claimant carries the initial burden of
establishing a prima facie case of
discrimination; (2) The burden shifts to the
employer to articulate some legitimate
nondiscriminatory reason for the applicant's
rejection; and (3) If a legitimate
nondiscriminatory reason for rejection has
been articulated, the claimant has the
opportunity to show that the stated reason for
rejection was, in fact, a pretext for
Gibson, 308 N.C. at 137, 301 S.E.2d at 82 (emphasis supplied).
This rule has been extended to cases in which an employee has been
discharged. Id. (citing McDonald v. Santa Fe Trial Transp. Co.,
427 U.S. 273, 49 L. Ed. 2d 493 (1976)).
I. Prima Facie Discrimination
Our Supreme Court noted in Gibson that a prima facie case of
discrimination may be established in various ways. 308 N.C. at
137, 301 S.E.2d at 82-83 (citing as examples of proving a prima
facie case: Coleman v. Braniff Airways, Inc., 664 F.2d 1282 (5th
Cir. 1982) ((1) a claimant is a member of a minority group, (2) he
was qualified for the position, (3) he was discharged, and (4) the
employer replaced him with a person who was not a member of a
minority group); Turner v. Texas Instruments, Inc., 555 F.2d 1251
(5th Cir. 1977) (the discharge of a black employee and the
retention of a white employee under apparently similar
circumstances); McDonald, 427 U.S. at 273, 49 L. Ed. 2d at 493
(white employees discharged while black employees retained under
This Court addressed this issue in considering age
discrimination in Area Mental Health Authority v. Speed, 69 N.C.
App. 247, 317 S.E.2d 22, cert. denied, 312 N.C. 81, 321 S.E.2d 893
(1984). We determined that an individual 'need only show that his
performance was of sufficient quality to merit continued
employment, thereby raising an inference that some other factor was
involved in the decision to discharge him.' Id. at 253, 317
S.E.2d at 26 (quoting Flowers v. Crouch-Walker Corp., 552 F.2d
1277, 1283 (7th Cir. 1977)).
Vanderburg offered substantial evidence showing his dismissal
was not based on his alleged unacceptable job performance. He
received positive evaluations in May 1999 and June 2000 from all
his supervisors in Charlotte and Gastonia. Pappas admitted that
did real good work and worked very hard
during adiscussion with Vanderburg's father. Vanderburg substantially
reduced the unexplained increased caseload he received that was not
equalized in Fall 1999. McAteer and Williams, his superiors in
Gastonia, were pleased with his hard work in both the personal
income tax and business tax departments. When informed by McLamb
that Vanderburg would be dismissed, both McAteer and Williams
defended Vanderburg's performance. McLamb did not reevaluate his
decision despite admitting that he did not consider Vanderburg's
reduction of the considerable backlog of business tax cases for
that territory. In fact, Williams explained to Vanderburg that
after meeting McLamb, it appeared that several people in more
senior positions at the NCDOR did not want him there. McLamb
acknowledged that: (1) Foster had input into the termination
decision; (2) he knew of the letters to Sanders; (3) Pappas had a
problem with Vanderburg; and (4) he was aware of the 6 November
This evidence was sufficient to show a prima facie case of
discrimination. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 253, 67 L. Ed. 2d 207, 215 (1981) (the burden of
establishing a prima facie case of discrimination is not onerous);
Area Mental Health, 69 N.C. App. at 253, 317 S.E.2d at 26 (such
evidence supports the idea that the employee was qualified for the
job and the dismissal resulted from discriminatory motives). We
hold Vanderburg established, through substantial evidence, a prima
facie case of discrimination based on his religious practices.
ii. Shift of Burden to Employer
Vanderburg's showing of a prima facie case of discrimination
does not equate to an actual finding of discrimination. Furnco
Construction Corp. v. Waters, 438 U.S. 567, 579-80, 57 L. Ed. 2d
957, 969 (1978). Rather, a court may presume a discriminatory
intent existed because in the absence of an explanation, it is more
likely than not that the employer's actions were based upon
discriminatory considerations. Id.
, supra. To rebut this
presumption, the employer may show legitimate nondiscriminatory
reasons for the dismissal.
Area Mental Health, 69 N.C. App. at
254, 317 S.E.2d at 27
(citing Gibson, 308 N.C. at 138, 301 S.E.2d
at 83). 'The employer is not required to prove that its action
was actually motivated by the proffered reasons for it is
sufficient if the evidence raises a genuine issue of fact as to
whether the claimant is a victim of intentional discrimination.'
Area Mental Health, 69 N.C. App. at 254, 317 S.E.2d at 27
Gibson, 308 N.C. at 138, 301 S.E.2d at 83).
The NCDOR responded to Vanderburg's claim by arguing
Vanderburg was dismissed for unsatisfactory job performance in the
form of insufficient productivity. It asserted: (1) Vanderburg
created conflict with his supervisors; (2) he did not perform his
share of the workload; (3) his caseload was disorganized and many
files were missing; and (4) his overall performance was deficient.
The NCDOR's response to Vanderburg's prima facie case of
discrimination raises a genuine issue of material fact concerning
the reasons why Vanderburg was dismissed. See Area Mental Health,
69 N.C. App. at 253, 317 S.E.2d at 26
(citing Gibson, 308 N.C. at
138, 301 S.E.2d at 83
We hold the NCDOR articulated legitimate,nondiscriminatory reasons for Vanderburg's dismissal, shifting the
burden of proof back to Vanderburg. See Gibson, 308 N.C. at 137,
301 S.E.2d at 82.
iii. Pretext for Discrimination
Following the employer's rebuttal of the prima facie case of
discrimination, the employee receives an opportunity to show that
the employer's stated reasons are merely a pretext for intentional
discrimination. Id. at 139, 301 S.E.2d at 84.
The plaintiff may
rely on evidence presented to show the prima facie case to show a
pretextual dismissal. Id.
The Commission made factual findings that Vanderburg's
termination resulted directly from the conflict derived from his
religious practices. In addition to the evidence showing
Vanderburg was adequately performing his employment duties,
Vanderburg offered additional evidence to support his claims: (1)
the conflicts arose after Vanderburg requested and received
permission to pursue secondary employment as an associate pastor;
(2) Barnes and Pappas ordered the removal of religious items from
Vanderburg's cubicle, while allowing several co-workers to continue
to display similar religious objects; (3) Pappas indicated to
Vanderburg's father that a probationary employee could be fired
for any reason; (4) Vanderburg's caseload increased substantially
without explanation and was not equalized after the meetings with
Pappas and Barnes; and (5) Vanderburg was told on several occasions
from various supervisors that he did not have a future with the
NCDOR. The record on appeal and transcript contain substantial
evidence to support the Commission's factual findings that
Vanderburg was dismissed under discriminatory motives. Although
the NCDOR presented evidence to suggest Vanderburg had a history of
unsatisfactory work as the basis of his dismissal, the ALJ found
NCDOR's evidence not worthy of belief. A whole record review
does not permit us to substitute our judgment for the Commission's
findings of fact. Savings & Loan Assoc. v. Savings & Loan Comm.,
43 N.C. App. 493, 259 S.E.2d 373 (1979). Vanderburg offered and
the Commission found substantial evidence to show the NCDOR's
proffered reasons for his dismissal were a pretext for religious
discrimination. Gibson, 308 N.C. at 137, 301 S.E.2d at 82. This
assignment of error is overruled.
N.C. Gen. Stat. §§ 126-36(a) and 126-39 provide the Commission
jurisdiction over employment discrimination claims by non-career
State employees. Vanderburg satisfied the burden of
proof required in discrimination actions
to show his dismissal was
based on illegitimate and discriminatory motives. Although the
trial court did not specify the standard of review it applied,
detail its findings of fact, or delineate its conclusions of law,
our review of the whole record and transcripts show no grounds
exist to warrant reversal of the Commission's final decision. The
trial court's order affirming the Commission's Final Decision is
Judge MCGEE concurs. Judge WYNN concurs by separate opinion.
WYNN, Judge concurring.
Although I agree with the majority's resolution of this
matter, I separately concur in affirming the State Personnel
Commission's decision for the reason that N.C. Gen. Stat. § 126-36
affords all state employees an appeals process if the employee
suffered discrimination on the basis of race, religion, color,
national origin, age, sex, or handicap.
In Woodburn v. N.C. State Univ., 156 N.C. App. 549, 577 S.E.2d
154 (2003), this Court stated that Chapter 126 of the North
Carolina General Statutes does not apply to probationary employees.
Since that conclusion went beyond the issue in that case, I agree
with the majority that this conclusion was dicta. Indeed, in the
face of compelling and clear legislative language, and a prior
North Carolina Supreme Court case, N.C. Dep't of Corr. v. Gibson,
308 N.C. 131, 301 S.E.2d 78 (1983), a prior opinion of this Court
may not contravene the precedential value of a constitutionally
allowed legislative mandate.
Moreover, I must emphasize that the issue on appeal concerns
a matter of discrimination based on religious practices not of
constitutionally protected religious freedoms. The petition filed
claimed unlawful discrimination pursuant to N.C. Gen. Stat. § 126-
36. N.C. Gen. Stat. § 126-36 allows the State Personnel Commission
to review state employee claims derived from alleged racial,
religious, age, sex, national origin, or handicap discrimination.
While constitutional issues may be applicable here, none are before
this Court today. Finally, I note that our Supreme Court has previously set out
the standard for establishing discrimination pursuant to N.C. Gen.
Stat. § 126-36. Gibson, 308 N.C. at 136-37, 301 S.E.2d at 82
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L. Ed. 2d 668 (1973)); see Skinner v. N.C. Dep't of Corr.,
154 N.C. App. 270, 278, 572 S.E.2d 184, 190 (2002). In Gibson, our
Supreme Court also set out a four-step test to establish a prima
facie case of discrimination. 308 N.C. at 137, 301 S.E.2d at 82-
83. As N.C. Gen. Stat. § 126-36 applies to all forms of
discrimination, this standard is applicable here. Upon applying
this standard to the issue in this case, I reach the same result as
the majority in affirming the State Personnel Commission decision.
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