Appeal by respondent from order entered 2 July 2004 by Judge
Robert H. Hobgood in Superior Court, Wake County. Heard in the
Court of Appeals 7 June 2005.
Attorney General Roy Cooper, by Special Counsel Isaac T.
Avery, III, for the State.
Alan McSurely for respondent-appellant.
Sharon F. Greene (respondent) appeals from the trial court's
order reversing an order of the State Personnel Commission (the
SPC) and affirming the action of the North Carolina Department of
Crime Control and Public Safety (petitioner) in declining to
promote respondent to a Personnel Analyst I position.
A Personnel Analyst II employee resigned from employment with
petitioner in October 2002. Weldon Freeman (Freeman), petitioner's
Personnel Director, posted the job opening as a Personnel Analyst
I position. Respondent applied for the Personnel Analyst I
position on 25 October 2002. Respondent was forty-six years old,
had more than twenty years of experience in State government
personnel administration, and was employed by petitioner as a
Personnel Technician III/EEO Officer. In this role, respondent
supervised two employees, including Shawnda Brown (Brown).
Respondent had hired Brown to work for petitioner one year
Brown also applied for the Personnel Analyst I position.
Brown was thirty-nine years old, had obtained a B.A. from the
University of South Florida, and had approximately six and a half
years of experience in various personnel administration positions.
A third person also applied for the position.
Each applicant was interviewed by a panel of three. The panel
consisted of Freeman, Human Resources Partner Jerry McRae (McRae),and Director of Personnel Hanna Gilliam (Gilliam). Each interview
lasted between thirty and forty-five minutes and each applicant was
asked the same twenty questions. Gilliam asked the first seven
questions, McRae asked the next nine questions, and Freeman asked
the last four questions. At the conclusion of each interview, the
applicant completed a ten-minute writing exercise. The selection
criteria was based fifty percent on the interview, twenty-five
percent on the writing exercise, and twenty-five percent on the
applicant's work history.
Following each interview, the panel discussed the applicants'
responses and writing exercises and gave each applicant a numerical
score. Respondent received a score of thirty-one, the third
applicant received a score of thirty-two, and Brown received a
score of thirty-nine. Freeman sent an email announcement on 7
November 2002 stating that Brown was selected for the Personnel
Analyst I position.
Crystal Goodman (Goodman), a Human Resources Associate,
received Brown's Personnel Action Clearance package for processing.
Goodman told McRae that she questioned the package because she did
not believe that Brown was qualified for the Personnel Analyst I
position. McRae reviewed Brown's application and determined that
Brown should be given credit for two years of relevant experience
based on her previous employment in the personnel department of
Sam's Club. McRae's supervisor, Nellie Riley, and State Personnel
Director Thom Wright signed off on McRae's decision.
Respondent filed a Petition for a Contested Case Hearing with
the Office of Administrative Hearings on 21 November 2002.
Respondent alleged that petitioner discriminated against her on thebasis of her age when it selected Brown, a younger applicant, over
respondent for the Personnel Analyst I position. A hearing was
held on 29 August 2003 before an Administrative Law Judge (ALJ).
The ALJ found that petitioner did discriminate against respondent
because of respondent's age. The ALJ ordered that petitioner
instate respondent to the Personnel Analyst II position; adjust
respondent's employment record to reflect respondent as being a
Personnel Analyst II as of 29 October 2002; remit all back pay,
raises and other benefits respondent would have received; and pay
respondent's reasonable attorney's fees. The SPC adopted, in
total, the ALJ's decision and remedies. Petitioner filed a
Petition for Judicial Review of the administrative decision of the
SPC on 12 December 2003 with the trial court. The trial court
reversed the final decision of the SPC. The trial court also
affirmed the action of petitioner in declining to promote
respondent to the Personnel Analyst I position.
We note at the outset that since respondent has failed to
present an argument in her brief in support of assignment of error
number eight, we deem it abandoned. N.C.R. App. P. 28(b)(6).
 Respondent first contends that the trial court erred when
it failed to limit its application of the whole record test in
determining whether the decision of the SPC was supported by
substantial competent evidence in view of the entire record and had
a rational basis in the record. Under North Carolina's
Administrative Procedure Act, a trial court may reverse or modify
a SPC decision
if the substantial rights of the petitionersmay have been prejudiced because the agency's
findings, inferences, conclusions, or
(1) In violation of constitutional
(2) In excess of the statutory
authority or jurisdiction of
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial
evidence admissible under [N.C.
Gen. Stat. §] 150B-29(a), 150B-
30, or 150B-31 in view of the
entire record as submitted; or
(6) Arbitrary, capricious, or an
abuse of discretion.
N.C. Gen. Stat. § 150B-51(b) (2003). Our Supreme Court has
directed that the first four grounds for reversal or modification
are "law-based" inquiries that receive de novo
review. N.C. Dep't
of Env't & Natural Res. v. Carroll
, 358 N.C. 649, 659, 599 S.E.2d
888, 894 (2004). The last two grounds are "fact-based" inquiries
and are reviewed under the whole record test. Id
At the trial court, petitioner argued that the ALJ's findings
of fact, as adopted by the SPC, were not supported by substantial
evidence. Therefore, the trial court was to apply the whole record
test when it reviewed the SPC's decision. N.C. Gen. Stat. § 150B-
51(b)(5); see also King v. N.C. Environmental Mgmt. Comm.
, 112 N.C.
App. 813, 816, 436 S.E.2d 865, 868 (1993).
Application of the whole record test "requires the examination
of all competent evidence to determine if the administrative
agency's decision is supported by substantial evidence." Rector v.
N.C. Sheriffs' Educ. and Training Standards Comm.
, 103 N.C. App.527, 532, 406 S.E.2d 613, 616 (1991). Substantial evidence is
defined as such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Walker v. N.C. Dept. of Human
, 100 N.C. App. 498, 503, 397 S.E.2d 350, 354 (1990),
disc. review denied
, 328 N.C. 98, 402 S.E.2d 430 (1991). The whole
record test requires that the trial court take all evidence into
account, including the evidence that both supports and contradicts
the agency's findings. Leiphart v. N.C. School of the Arts
N.C. App. 339, 344, 342 S.E.2d 914, 919, cert. denied
, 318 N.C.
507, 349 S.E.2d 862 (1986). When the agency's findings of fact are
not supported by substantial evidence, the trial court may make its
own findings of fact that may be "at variance with those of the
agency." Scroggs v. N.C. Justice Standards Comm.
, 101 N.C. App.
699, 702-03, 400 S.E.2d 742, 745 (1991). "However, the 'whole
record' test is not a tool of judicial intrusion" and a court is
"not permitted to replace the agency's judgment with [its] own,
even though [it] might rationally justify reaching a different
conclusion." Floyd v. N.C. Dept. of Commerce
, 99 N.C. App. 125,
129, 392 S.E.2d 660, 662, disc. review denied
, 327 N.C. 482, 397
S.E.2d 217 (1990).
 In her first two assignments of error, respondent argues
that the trial court misapplied the whole record test when it
determined whether the SPC's findings of fact were supported by
substantial competent evidence. Respondent contends that the trial
court erred by independently weighing the evidence of record and
thus exceeded its role of determining whether the SPC's findings
had a rational basis in the record. However, we determine that due
to a violation of our Rules of Appellate Procedure, we cannotreview this assignment of error.
This Court's review is "limited by properly presented
assignments of error and exceptions." N.C. Dept. of Correction v.
, 99 N.C. App. 602, 609, 394 S.E.2d 285, 289 (1990). Under
N.C.R. App. P. 10(c)(1), "[a]n assignment of error is sufficient if
it directs the attention of the appellate court to the particular
error about which the question is made, with clear and specific
record or transcript references
." (emphasis added). Failure to
comply with the Rules of Appellate Procedure subject an appeal to
dismissal, since "[i]t is not the role of the appellate courts
. . . to create an appeal for an appellant." Viar v. N.C. Dep't of
, 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005).
In the case before us, respondent's assignments of error are
extremely broadsided. None of the assignments of error are
followed by citations to the record or transcript. More
importantly, none of the assignments of error specify which
findings respondent challenges. As a result, we are unable to
determine which findings of fact respondent specifically contends
evidence misapplication of the whole record test. We are thus
unable to address respondent's first two assignments of error.
Similarly, in assignment of error number four, respondent
argues that "[t]he trial court erred when it substituted its
judgment for the special expertise of the [SPC] in determining
whether [Brown] was 'qualified' for the position." This assignment
of error is also not followed by any citation to the record or
transcript, nor does it indicate which finding or findings
respondent challenges. Several of the ALJ's and the trial court's
findings of fact discuss Brown's qualifications for the position. We cannot determine which findings of fact respondent challenges
and therefore cannot review this assignment of error.
 In assignments of error numbers three and seven,
respondent specifically cites the ALJ's finding of fact number 25
and the trial court's finding of fact number 38. Therefore, we are
able to conduct a meaningful review of assignments of error numbers
three and seven.
In those two assignments of error, respondent contends that
the trial court erred when it replaced the ALJ's finding of fact
number 25. The finding of fact stated that Freeman and McRae were
not credible when they testified about Brown's qualifications and
previous personnel experience:
25. Based on the undersigned's observations
of [Freeman] and . . . McRae, neither
witness was credible when questioned
about [Brown's] qualifications and the
evidence that her clerical experience in
the Sam's Club and Fayetteville personnel
departments did not approach the minimal
qualification requirements for even the
Personnel Analyst I position.
On review, the trial court made the following finding of fact:
38. Given that the interview panel had
approximately seventy (70) years of
combined experience in personnel
functions and were serving or had served
in top level personnel management
positions, [the trial court] finds that
the ALJ's Finding of Fact No. 25 relating
to the "credibility" of . . . Freeman and
. . . McRae is not supported by the
record as a whole.
We agree that the trial court erred in finding that the ALJ's
determination of the witnesses' credibility was not supported by
the record. "The credibility of the witnesses and the resolution
of conflicts in their testimony is for the [agency], not areviewing court[.]" In re Wilkins, 294 N.C. 528, 549, 242 S.E.2d
829, 841 (1978); see also White v. N.C. Bd. of Examiners of
Practicing Psychologists, 97 N.C. App. 144, 154, 388 S.E.2d 148,
154, disc. review denied, 326 N.C. 601, 393 S.E.2d 891 (1990). On
review of an agency's decision, a trial court "is prohibited from
replacing the Agency's findings of fact with its own judgment of
how credible, or incredible, the testimony appears to [the trial
court] to be, so long as substantial evidence of those findings
exist in the whole record." Little v. Board of Dental Examiners,
64 N.C. App. 67, 69, 306 S.E.2d 534, 536 (1983).
In this case, although the trial court impermissibly replaced
the ALJ's judgment of the credibility of Freeman and McRae with its
own, we find that this error was not prejudicial. The ALJ's
finding of incredibility concerned the issue of whether Brown was
qualified for the position. The finding had no bearing on the
ultimate issue in the case: whether respondent was the victim of
age discrimination. We find that the error did not affect the
outcome of the case and overrule this assignment of error.
 In assignments of error numbers five and six, respondent
contends that the trial court erred when it substituted its
judgment for that of the SPC and concluded as a matter of law that
respondent had failed to establish a prima facie
case of age
discrimination. The trial court concluded that respondent had
failed to establish a prima facie
case of age discrimination
because the age difference between respondent and Brown was not
Respondent first argues that the trial court erred in makingconclusions of law in conflict with the ALJ's conclusion of law
number seven, as adopted by the SPC. The ALJ's conclusion of law
number seven stated that respondent established a prima facie
of age discrimination "by proving:  she applied for and was
qualified for a vacant position,  she was rejected,  she was
over 40 years of age,  after she was rejected the employer
filled the position with a younger employee below 40 years of age."
Respondent argues that petitioner did not except to this conclusion
of law at the trial court, and therefore waived review of the
issue. We disagree. In its petition for judicial review,
petitioner specifically excepts to many of the ALJ's conclusions of
law, as adopted by the SPC, that support the conclusion that
respondent had established a prima facie
case of age
discrimination. Furthermore, petitioner drafted recommended
conclusions of law, which state: "[Respondent] did not establish a
] case. . . . [Respondent] has failed to meet her
burden of proving that she was denied the promotion to Personnel
Analyst I on account of her age." We find that petitioner properly
excepted to the conclusion of law and we may review this issue on
 Respondent argues that the trial court erred in concluding
as a matter of law that respondent had not established a prima
case of age discrimination. We apply de novo
review to a
trial court's conclusions of law
. Campbell v. N.C. Dep't of
, 155 N.C. App. 652, 660, 575 S.E.2d 54, 60, disc. review
, 357 N.C. 62, 579 S.E.2d 386 (2003).
The United States Supreme Court has established a scheme by
which employees may prove discrimination in employment. SeeMcDonnell Douglas Corp. v. Green
, 411 U.S. 792, 36 L. Ed. 2d 668
(1973); see also Reeves v. Sanderson Plumbing Prod.
, 530 U.S. 133,
142, 147 L. Ed. 2d 105, 116 (2000) (applying the McDonnell Douglas
framework to an age discrimination case); and Dept. of Correction
, 308 N.C. 131, 136-37, 301 S.E.2d 78, 82-83 (1983).
Under this framework, an employee must first establish a prima
case of discrimination. Reeves
, 530 U.S. at 142, 147 L. Ed.
2d at 116. Once an employee establishes a prima facie
discrimination, the burden shifts to the employer to prove a
legitimate, non-discriminatory basis for the employer's action.
, 411 U.S. at 802, 36 L. Ed. 2d at 678. If the
employer succeeds, the burden shifts back to the employee to show
that the employer's reason for the action is a mere pretext for
. at 804, 36 L. Ed. 2d at 679. However, "'[t]he
ultimate burden of persuading the trier of fact that the [employer]
intentionally discriminated against the [employee] remains at all
times with the [employee].'" Reeves
, 530 U.S. at 143, 147 L. Ed.
2d at 117 (quoting Texas Dept. of Community Affairs v. Burdine
U.S. 248, 253, 67 L. Ed. 2d 207, 215 (1981)); see also Gibson
N.C. at 138, 301 S.E.2d at 83.
An employee can establish a prima facie
case of age
discrimination when the employee shows that (1) the employee is a
member of the protected class, or over forty years old; (2) the
employee applied or sought to apply for an open position with the
employer; (3) the employee was qualified for the position; and (4)
the employee "was rejected for the position under circumstances
giving rise to an inference of unlawful discrimination." Evans v.
Technologies Applications & Service Co.
, 80 F.3d 954, 959-60 (4thCir. 1996). An inference of unlawful discrimination arises when an
employee is replaced by a "substantially younger" worker. O'Connor
v. Consol. Coin Caterers
, 517 U.S. 308, 312-13, 134 L. Ed. 2d 433,
438-39 (1996); Stokes v. Westinghouse Savannah River Co.
, 206 F.3d
420, 430 (4th Cir. 2000).
In the case before us, the trial court found that respondent
failed to establish a prima facie
case of discrimination because
she failed to show that she "was rejected for the position under
circumstances giving rise to an inference of unlawful
, 80 F.3d at 959-60. The trial court found
that Brown was not "substantially younger" than respondent, and as
such, an inference of age discrimination did not arise.
This Court has not established a bright-line rule for
determining whether an applicant who was selected is "substantially
younger" than an employee who was not selected. We need not decide
this issue today because even if respondent did establish a prima
case of discrimination, petitioner has established a
legitimate, non-discriminatory reason for its action, and
respondent has not shown that this reason was a pretext for
The evidence before the SPC showed that, based on the
interview and writing sample scores, respondent ranked lowest out
of all of the applicants. All three panel members ranked the
applicants similarly, and two of the panel members testified that
based on these rankings, they considered Brown to be the best
applicant for the Personnel Analyst I position. Freeman gave the
following testimony at the hearing before the ALJ:
Q. Okay. After the - taking you back, onceagain, to the interview panel, in
addition to the rankings - the numerical
rankings, did the - did you have some
discussion with . . . [Gilliam] and . . .
[McRae] about who they thought would make
the best employee in that particular
A. I think we all agreed afterwards that,
again, based on the selections, the
interview questions, that [Brown]
answered the questions most
appropriately, very clear and concise.
And [respondent], you know, she kind of
rambled and, you know, avoided answering
some of the questions directly.
In addition, McRae gave the following testimony:
Q. How did you rate the applicants for those
positions? Do you recall?
A. I recall that [Brown] was rated higher
than the other two, and the reason for
that, based on my personnel experience -
professional personnel experience, is
that she seemed to have a much broader
and diverse personnel background, and in
a personnel analyst position, that is,
the beginning of a professional level of
human resource work and what you're
looking for or at least what I'm looking
for is people that are able to use good
judgment and discretion in interpreting
and applying policies.
This testimony and the applicants' scores establish that
petitioner had a legitimate, nondiscriminatory reason for its
action. Under the McDonnell Douglas
framework, the burden then
shifts back to respondent to prove that this reason was a pretext
for discrimination. In order to prove that a reason for an
employer's action is a pretext for discrimination, an employee must
that the reason was false, and that discrimination was
the real reason." St. Mary's Honor Center v. Hicks
, 509 U.S. 502,
515, 125 L. Ed. 2d 407, 422 (1993). "It is not enough, in other
words, to dis
believe the employer; the factfinder must believe
the[employee's] explanation of intentional discrimination." Id
519, 125 L. Ed. 2d at 424.
We find that respondent has not established that petitioner's
reason for its action was false. There is no evidence in the
record that the reason was false or that the real reason for
petitioner's action was to discriminate against respondent based on
Since respondent has failed to show that the trial court erred
in its application of the whole record test and has failed to meet
her burden of proving
age discrimination, we affirm the trial
Judges McCULLOUGH and LEVINSON concur.
*** Converted from WordPerfect ***