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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.
GWENDOLYN L. GORDON, Petitioner, v. NORTH CAROLINA DEPARTMENT OF
Filed: 6 September 2005
1. Administrative Law_delay in entering decision_no showing of good cause
The trial court did not err by reversing a State Personnel Commission order as untimely in
violation of N.C.G.S. § 150B-44. Since the parties did not stipulate to an extension, the
Commission must show that its delay in entering its decision was for good cause; the
Commission's assertion that the delay resulted from an incomplete record was not persuasive.
2. Appeal and Error_administrative law_assignment of error_standard of review
The substantive nature of each assignment of error dictates the standard of judicial review
of an administrative agency's final decision, whether in superior court or at the appellate level.
3. Administrative Law_judicial review_de novo
Subparts (1) through (4) of N.C.G.S. § 150B-51(b) are characterized as law-based
inquiries, which are reviewed under a de novo standard.
4. Employer and Employee_denial of promotion_prima facie case of recial and gender
The four elements in Dept. of Correction v. Gibson, 308 N.C. 131, are not an exclusive
determinant of a prima facie case of employment discrimination. A state employee made a
sufficient showing of prima facie racial and gender discrimination by offering substantial evidence
that the denial of her promotion was not based solely on the successful person being the better
5. Administrative Law_standard of review_whole record
Reviews under N.C.G.S. § 150B-51(b)(5) and (b)(6) are fact-based inquiries, to which the
whole record test applies.
6. Employer and Employee_discrimination_contradictions in testimony
The administrative law judge and the trial court did not err by finding contradictions in the
testimony of two witnesses in an employment discrimination case against a state agency. Relevant
evidence existed that a reasonable mind might accept as adequate to support the conclusion that
the testimony was contradictory.
7. Employer and Employee_discrimination_findings_sufficiency of evidence
There was evidence in an employment discrimination case supporting the administrative
law judge's findings about a state employee's experience, her accommodation of respondent in
not taking a previous position, and the criticism of her by respondent's witnesses for not taking
8. Administrative Law_findings_intent and credibility_sufficiency of evidence
The appellate court does not substitute its judgment for that of the ALJ, even if a different
conclusion was possible. A finding by an administrative law judge about intent and credibility in
an employment discrimination case was not overruled on appeal.
9. Employer and Employee_discrimination_falsity of employer's explanation_inference
It is permissible for the trier of fact to infer the ultimate fact of employment discrimination
from the falsity of the employer's explanation. The trial court here did not err by finding and
concluding that the petitioner was more qualified than the successful applicant.
10. Administrative Law_attorney fees and costs_pre-judicial and judicial
The trial court did not err by awarding attorney fees and costs in an employment
discrimination case against the State where it determined that the administrative law judge's
award was not unreasonable or inadequate, and where it reversed the State Personnel
Commission's decision against petitioner. Respondent had the opportunity to respond to the
award because the trial judge mailed letters to both parties notifying them of the decision and
directing affidavits about fees and costs two weeks before the order was drafted. N.C.G.S. §
Appeal by respondent from order entered 2 June 2004 by Judge
J. Richard Parker in Pitt County Superior Court. Heard in the
Court of Appeals 8 June 2005.
Ward and Davis, LLP, by John A. J. Ward and Susan P. Ellis,
Attorney General Roy Cooper, by Assistant Attorney General
Neil Dalton, for respondent-appellant.
The North Carolina Department of Correction (the DOC)
appeals from order reversing the decision of the State Personnel
Commission (the Commission) and affirming the decision of the
Administrative Law Judge (the ALJ). We affirm.
On 17 July 2001, the DOC posted a job opening for
Superintendent IV for the Pamlico Correctional Institution. Petitioner Gwendolyn L. Gordon (Gordon), Robert Hines (Hines),
and five other individuals applied for the position. The Eastern
Region Director of the DOC, Joseph Lofton (Lofton), was the
hiring manager for the position. Lofton and two other DOC
employees conducted the interviews in July and August 2001. DOC
Administrative Officers Wayne Harris and George Hedrick helped
screen the applicants for those who were most qualified.
Both Gordon and Hines had attained twenty-plus years
experience within the DOC. Some of Gordon's experience
concentrated on the program side, which involved primarily
delivering medical, dental, diagnostic, psychological, religious,
and work training materials to the inmates. Gordon also had
extensive experience in supervising inmates, making inmate housing
assignments, opening jails, expanding facilities, and developing
labor contracts and community work assignments. Gordon is
certified as a Basic Correctional Officer. She earned a four-year
degree in business administration in the late 1970s. Gordon had
been an assistant superintendent for five years and eight months.
Hines's experience involved more operations and custodial
matters than programs. He worked in several close custody
facilities in the past and served as an assistant superintendent
for nine years and nine months. He earned a two-year associate
degree plus a number of credit hours in business administration in
the late 1970s. On 9 August 2001, Lofton recommended Hines for the position
and DOC Secretary Theodis Beck (Secretary Beck) promoted Hines on
13 September 2001. Hines began work on 1 October 2001.
On 18 January 2002, Gordon filed a petition for a contested
case hearing with the Office of Administrative Hearings (the OAH)
to contest the DOC's decision to promote Hines over her. Gordon
alleged the DOC's decision was based on race and gender
discrimination. Following a hearing, the ALJ determined the DOC
discriminated against Gordon because of her race and gender and
ordered she receive back pay and benefits from the date of Hines's
promotion forward until she received a comparable promotion.
The ALJ's decision and record were sent to the Commission on
11 February 2003. The Commission issued a decision and order on 26
March 2003 reversing the ALJ's order. Gordon petitioned the trial
court on 9 April 2003 for review of the Commission's order
reversing the ALJ decision. After Gordon petitioned for judicial
review and filed motions for sanctions against the DOC, the
Commission withdrew its 26 March 2003 decision and order on 14
April 2003 on the grounds it did not have the complete record. The
Commission failed to file a motion to extend the time to issue its
decision and the parties did not stipulate to an extension. On 4
June 2003, the Commission issued a second order and decision
reversing the ALJ. Gordon filed a second petition for judicial
review by the trial court, re-filed her motion for sanctions
against the DOC, and also moved the trial court for entry of theALJ's order on the grounds that the Commission was late in filing
The trial court conducted a hearing on Gordon's motions on 19
April 2004 and issued an order on 2 June 2004: (1) reversing the
Commission's decision as untimely and based on the merits; (2)
adopting the ALJ's findings of fact, conclusions of law, and final
order; and (3) awarding Gordon damages, attorneys' fees, and costs.
The DOC appeals.
The issues on appeal are whether the trial court erred by:
(1) determining the Commission's decision was null and void for its
late entry; (2) determining Gordon established a prima facie case
of race and gender discrimination; and (3) ordering the DOC to pay
attorneys' fees and costs.
III. Late Entry of Order
 The DOC argues the trial court erred in concluding the
Commission's order, which reversed the ALJ's decision, was null and
void due to its late entry. We disagree.
N.C. Gen. Stat. § 150B-44 (2003) provides in part:
Unreasonable delay on the part of any agency
or administrative law judge in taking any
required action shall be justification for any
person whose rights, duties, or privileges are
adversely affected by such delay to seek a
court order compelling action by the agency or
administrative law judge . . . . An agency
that is subject to Article 3 of this Chapter
and is a board or commission has 60 days from
the day it receives the official record in a
contested case from the Office ofAdministrative Hearings or 60 days after its
next regularly scheduled meeting, whichever is
longer, to make a final decision in the case.
This time limit may be extended by the parties
or, for good cause shown, by the agency for an
additional period of up to 60 days. If an
agency subject to Article 3 of this Chapter
has not made a final decision within these
time limits, the agency is considered to have
adopted the administrative law judge's
decision as the agency's final decision.
This Court considered this same issue in Occaneechi Band of
the Saponi Nation v. N.C. Comm'n of Indian Affairs, 145 N.C. App.
649, 551 S.E.2d 535, cert. denied, 354 N.C. 365, 556 S.E.2d 575
(2001). We reversed the trial court's ruling that the time frame
to make a decision under N.C. Gen. Stat. § 150B-44 is intended to
be presumptive, not absolute, and therefore, if an agency can
demonstrate reasonableness in issuing a final decision beyond the
statutory limit, the agency is not considered to have adopted the
recommended decision of the ALJ. Id. at 652, 551 S.E.2d at 538.
We held, [t]he statute is clear that if a final decision has not
been made within these time limits the agency is considered to have
adopted the ALJ's recommended decision. We find no ambiguity in
this statutory language that would give the trial court need to
further explore legislative intent. Id. at 653, 551 S.E.2d at 538
(internal quotations omitted).
We recognized under N.C. Gen. Stat. § 150B-44 the initial time
limit, here sixty days, could be extended: (1) by agreement of
the parties and (2) for good cause shown . . . . The statute isclear that if a final decision has not been made 'within these time
limits' the agency is considered to have adopted the ALJ's
recommended decision. Id. There, the Commission had . . .
[f]ound that the complexity of the case and the length of the
Recommended Decision constitute good cause to extend the time . .
. . in entering its decision. Id. at 656, 551 S.E.2d at 540.
However, we held the Commission was without authority to
unilaterally extend the deadline for issuing its final decision.
Id. (citing Holland Group v. N.C. Dept. of Administration, 130 N.C.
App. 721, 504 S.E.2d 300 (1998)).
In Holland, a contractor filed a contested case against the
Department of Administration challenging the imposition of
liquidated damages. 130 N.C. App. at 722-23, 504 S.E.2d at 302.
The ALJ issued a recommended decision in the contractor's favor and
transmitted the case to the Department of Administration for a
final agency decision. Id. at 723, 504 S.E.2d at 302. The
Department of Administration entered a notice that it received the
Official Record in the case on 1 August 1995. Id. On 31 October
1995, the Department of Administration filed an Extension of Time
to enter its decision due to the lack of tape recordings of the
hearing in the record. Id. The tape recordings were received on
14 November 1995, completing the record. Id. Following a second
extension, the Department of Administration entered its final
decision on 13 May 1996. Id. at 724, 504 S.E.2d at 303. On
judicial review, the trial court determined the final decision wasuntimely pursuant to N.C. Gen. Stat. § 150B-44 and adopted the
ALJ's decision. Id.
On review by this Court, we held the trial court did not err
in concluding the Decision was not issued in a timely manner under
G.S. § 150B-44. Id. at 728, 504 S.E.2d at 305. This holding was
based on two primary factors. First, we noted, [t]he plain
language of G.S. § 150B-44 indicates the section is intended to
guard those involved in the administrative process from the
inconvenience and uncertainty of unreasonable delay. Id. at 725,
504 S.E.2d at 304. Second, we considered whether the Department of
Administration was estopped from asserting the extensions were
based on it not having the complete record. Id. at 726, 504 S.E.2d
at 304. We recognized that in its notice, the Department of
Administration acknowledged receipt of the Official Record. Id.
However, on appeal and before the trial court, the Department of
Administration sought to disavow this earlier representation and
designate 14 November 1995 as the date it received the official
record. Id. at 727, 504 S.E.2d at 304. We noted the Department
of Administration could have easily determined the tape recordings
were missing from the record. Id. However, the contractor lacked
the facility to ascertain whether or not the Department had indeed
received the complete record . . . [and] accepted the Department's
official assurance and anticipated a decision . . . accordingly.
Id. at 727, 504 S.E.2d at 304-05. Given the precise language of
G.S. § 150B-44 and the principles of equity, we [held] theDepartment [was] estopped from denying it received the record on 1
August 1995. Id. at 727, 504 S.E.2d at 305.
Here, the ALJ's decision finding the DOC discriminated against
Gordon was entered on 24 October 2002. On 11 February 2003, the
Commission received the Official Record from the OAH. Included
with the Official Record was a Certification by the OAH that the
attached comprised the Official Record. The certification also
noted, Video Tape Deposition of Joseph Lofton (4 video tapes)
could not be duplicated for inclusion in the Official Record. They
are on file in the Clerk's office and are available for review upon
advanced notice. Kim Hausen, Chief Clerk of the OAH, provided a
sworn affidavit stating in pertinent part, no commission member
contacted me at the Office of Administrative Hearings to view the
Despite not requesting the videotapes, the Commission issued
its original decision and order on 26 March 2003 reversing the
ALJ's order. On 8 April 2003, Gordon petitioned the trial court
for judicial review of the Commission's decision. That same day,
Gordon also filed a motion to reopen the record and for sanctions
against the DOC for withholding discovery. On 14 April 2003, the
Commission withdrew its 26 March 2003 decision and order claiming
it did not receive the whole record from the OAH. Based on the
withdrawal, Gordon filed an objection on 17 April 2003 to any
further action by the Commission due to untimeliness under N.C.
Gen. Stat. § 150B-44. After receiving the complete record, the videotapes, on 16
April 2003, the Commission issued its second decision and order on
4 June 2003. Our review of both the Commission's original and
second decisions and orders show they are virtually identical.
Between withdrawal of the Commission's 26 March 2003 decision and
order and passage of sixty days from 11 February 2003, the first
date of receipt of the record, neither the Commission nor the
parties filed a motion to extend the time for filing or stipulated
to the extension. Based on this delay, Gordon filed a motion for
entry of orders of the ALJ on 30 June 2003. Gordon also re-filed
her motions to reopen the record and for sanctions against the DOC.
Finally, Gordon petitioned the trial court for judicial review and
entry of the ALJ's order. Following judicial review, the trial
court reversed the Commission's decision and order and the ALJ's 24
October 2002 decision was deemed adopted by the Commission. The
basis for the reversal was the late entry of the Commission's
Following de novo review of the issue, we hold the trial court
did not err in reversing the Commission's decision as untimely in
violation of N.C. Gen. Stat. § 150B-44. We note initially that
Gordon properly preserved this issue for appellate review through
her numerous objections to the Commission's delay. See N.C.
Forestry Ass'n v. N.C. Dep't of Env't & Natural Res., 162 N.C. App.
467, 472, 591 S.E.2d 549, 553 (2004) (We do not address the issue
of whether an agency may extend the time limits under N.C. Gen.Stat. § 150B-44 in this manner. Petitioner raised its timeliness
argument for the first time on appeal in the superior court and has
waived any objection to the extension.), overruled on other
grounds by N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C.
649, 599 S.E.2d 888 (2004).
The mandatory sixty day time limit prescribed by N.C. Gen.
Stat. § 150B-44 may only be extended: (1) by agreement of the
parties; [or] (2) for good cause shown [by the Commission].
Occaneechi Band of the Saponi Nation, 145 N.C. App. at 653, 551
S.E.2d at 538. The record indicates the parties did not stipulate
to an extension. Thus, the Commission must show its delay in
entering its decision and order was based on good cause.
The Commission asserts the delay resulted from receipt of an
incomplete record transmitted by the OAH and such constitutes good
cause. We are not persuaded. This Court has held the Commission
is without authority to unilaterally extend the deadline for
issuing its final decision. Id. at 656, 551 S.E.2d at 540; see
Holland, 130 N.C. App. at 728, 504 S.E.2d at 305. In addition, the
doctrine of estoppel implemented in Holland is equally applicable
here. 130 N.C. App. at 726, 504 S.E.2d at 304. The Commission's
original decision and order dated 26 March 2003 began by stating,
The State Personnel Commission received the official record from
the Office of Administrative Hearings on February 11, 2003. As in
Holland, the Commission seeks to disavow this earlierrepresentation and designate 16 April 2003 as the date it received
the official record. 130 N.C. App. at 727, 504 S.E.2d at 304.
We further recognize the Commission was on notice of the four
videotapes upon receipt of the official record on 11 February 2003.
The OAH made the tapes readily available for the Commission's
review. The Commission did not withdraw its original decision and
order until after Gordon filed both a petition for judicial review
and motions for sanctions against the DOC. No evidence shows the
Commission filed its intent to extend the sixty day time limit as
required by the statute. Finally, the Commission's original and
second decision and orders are virtually identical.
The trial court properly reversed the Commission's second
decision and order dated 4 June 2003 as untimely under N.C. Gen.
Stat. § 150B-44. Based on N.C. Gen. Stat. § 150B-44 and this
Court's holdings in Holland and Occaneechi Band of the Saponi
Nation, the Commission was without authority or good cause to
extend the required sixty day time limit. This assignment of error
IV. Race and Gender Discrimination
The DOC argues the trial court erred by finding as fact and
concluding as a matter of law that it discriminated against Gordon
based on her race and gender. We disagree.
A. Standard of Review
 Our Supreme Court has held that upon judicial review of
an administrative agency's final decision, the substantive natureof 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 courtreview) (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
Here, the only two law-based inquiries presented by the DOC
are whether the trial court properly concluded as a matter of law:
(1) Gordon established a prima facie case of race and gender
discrimination; and (2) Gordon was more qualified for the position
than Hines. The DOC also contends this latter conclusion of law is
based upon improperly found facts. We address these two arguments
a. Prima Facie Case
 In Dept. of Correction v. Gibson, our Supreme Court
adopted the standard used by the United States Supreme Court in
proving discrimination. 308 N.C. 131, 137, 301 S.E.2d 79, 82(1983) (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
Id. (emphasis supplied).
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, 1284
(5th Cir. 1982) (prima facie case established if: (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), overruled on other grounds
by Burdine v. Texas Dept. of Community Affairs, 647 F.2d 513 (5th
Cir. 1981); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273,
49 L. Ed. 2d 493 (1976) (white employees discharged while black
employees retained under similar circumstances)). The showing of a prima facie case is not
equivalent to a finding of discrimination.
Rather, it is proof of actions taken by the
employer from which a court may infer
discriminatory intent or design because
experience has proven that in the absence of
an explanation, it is more likely than not
that the employer's actions were based upon
Gibson, 308 N.C. at 138, 301 S.E.2d at 83 (citations omitted).
Gordon offered substantial evidence showing her denial of the
promotion was not based solely on Hines allegedly being a better
applicant. First, Gordon satisfied the optional four elements for
gender discrimination: (1) as a female, she is a member of a
protected group; (2) she was qualified for a promotion; (3) she was
passed over for the promotion; and (4) the person receiving the
promotion was not a member of the protected class. See Enoch v.
Alamance County, 164 N.C. App. 233, 242, 595 S.E.2d 744, 752 (2004)
(citations omitted). Further, evidence was proffered showing
Gordon was more qualified than Hines by: (1) greater length of
service and experience at the DOC; (2) more management training;
(3) higher formal education; (4) higher classification and pay
grade; (5) higher screening and test scores; (6) higher (TAPS)
performance ratings; (7) more favorable supervisor recommendations;
and (8) greater participation on task forces and specialty
In addition, Gordon showed: (1) the DOC hired applicants in
the past as superintendents with program experience; (2) the DOC
committed procedural errors and irregularities in screeningcandidates to Gordon's detriment; (3) Lofton signed off on
performance appraisals of both Gordon and Hines where Hines was
rated very good and Gordon outstanding. Finally, Gordon
offered into evidence an email from Secretary Beck to Lofton
concerning Hines's hiring which stated,
This is good. I am a little more comfortable
in defending a Hines decision rather than a
Washington decision in the event we are
challenged by GG. Your 154 on Hines needs to
give him all he is entitled to and I will take
care of the rest if it becomes an issue . . .
The DOC bases much of its argument on the contention that
Gordon must satisfy the four elements enumerated in Gibson of a
prima facie case. 308 N.C. at 137, 301 S.E.2d at 83 (For example,
a prima facie case of discrimination may be made out by showing
that (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.). However, as outlined in Gibson and above, this
four-part analysis is not onerous or an exclusive determinant of
a prima facie case of discrimination. Id. at 137, 301 S.E.2d at
82-83 (A prima facie case of discrimination may be established in
Gordon's proffered 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 notonerous); Area Mental Health Authority v. Speed, 69 N.C. App. 247,
253, 317 S.E.2d 22, 26 (such evidence tends to show the employee
was qualified for the job and the dismissal resulted from
discriminatory motives), disc. rev. denied, 312 N.C. 81, 321
S.E.2d 893 (1984). As the DOC assigned error only to the first
prong of a discrimination claim, Gordon's prima facie case, our
inquiry ends there. See Gibson, 308 N.C. at 137, 301 S.E.2d at 82
((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 discrimination.); see also
Vanderburg v. N.C. Dept. of Revenue, __ N.C. App. __, __, 608
S.E.2d 831, 839-40 (2005). This portion of the DOC's assignment of
error is overruled.
2. Fact-Based Inquiries
 Review under 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)). This standard of review requires the reviewing court toanalyze 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).
Having affirmed the trial court's determination that the Commission
adopted the ALJ's decision by delaying in issuing its own decision
and order, we review the ALJ's findings of fact.
The factual-based inquiries presented by the DOC are whether
the ALJ or trial court erred in finding as fact: (1) the content
of Secretary Beck's email to Lofton; (2) conflicting testimony by
Lofton and Hines regarding their past relationship; (3) the DOC's
witnesses being critical of Gordon's prior work experience; and
(4) Gordon was more qualified for the position than Hines.
a. Conflicting Testimony
 The DOC argues substantial evidence does not support the
ALJ's and trial court's finding of fact eleven, which states in
pertinent part, The testimonies of [Lofton] and [Hines] were
contradictory, with [Lofton] asserting that he did not know [Hines]
other than meeting him one time at Wayne and with [Hines] asserting
that he had worked with [Lofton] in the past . . . . In response to questions about his relationship with Hines,
Lofton testified in his deposition:
Lofton: It's rather difficult to say. I
guess my actual recollection of
professionally involvement with Mr.
Hines, really, is when Ms. O'Konek
had contacted me about some issues
at Wayne Correctional Center, and I
met with Mr. Hines and Ms. O'Konek
at that point.
Question: You say professionally. Did you
know him on an individual basis
prior to that time?
Lofton: No. No, not really because, I mean,
he lives in Goldsboro and I live in
Goldsboro, but as far as interacting
with each other, no.
Question: Are you a member of any social
organizations that Mr. Hines is a
Lofton: ACA. He's a -- I think he's a --
he's a member of the Minority
Pioneers. I don't know whether he's
a member of NABJA or not. I don't
know whether he's a member of
Southern Correctional Association.
These are organizations that I
belong to. I'm a fraternity member.
He's not. As far as I know, he's
not a member of the fraternity.
Hines testified that he met Lofton in 1978 when they worked
together as correctional officers at Green Correctional Center, a
small facility. Only ten to twelve officers worked at Green, in
two to three officer shifts. Hines testified that he occasionally
worked the same shift with Lofton. Hines also testified that he
lived in the same town as Lofton and was a member of some of thesame professional and social organizations as Lofton, like the
North Carolina Correctional Association and Minority Pioneers.
Hines testified both he and Lofton attended meetings and reunions
for these clubs.
We hold the ALJ and the trial court did not err in finding
contradictions in their testimony. Based on the inconsistencies in
testimony by Lofton and Hines, relevant evidence existed that a
reasonable mind might accept as adequate to support [the]
conclusion that their versions were contradictory. N.C. Gen.
Stat. § 150B-2(8b). We may not substitute [our own] judgment for
the [ALJ's and the trial court's], even if a different conclusion
may result under a whole record review. Watkins, 358 N.C. at 199,
593 S.E.2d at 769.
b. Gordon's Work Experience
 Finding of fact twenty states in pertinent part:
[Gordon] at one time applied for the position
of Assistant Superintendent for Custody and
Operations at Craven Correctional Institution
and was awarded the promotion. [The DOC]
asked [Gordon] to accommodate it by giving up
that position and taking a position as
Assistant Superintendent of Programs, which
she did. Witnesses for [the DOC] in this
hearing were critical of [Gordon] for not
taking assignments in custody and operations
and for not having geographic diversity in her
The DOC argues its witnesses' testimony merely pointed out that
[Gordon] could have received [custody and operations] experience if
she chose and encouraged her to do so but she declined. However,the record shows the DOC argued Gordon's lack of experience was
the principle reason for promoting [Hines] over [Gordon]. In
support of its decision, the DOC's witnesses would, and did,
negatively comment on Gordon's past work experience at the DOC and
minimized or was critical of it. Further, substantial evidence
shows Gordon accepted an alternate position at Craven at DOC's
c. Beck's Email
 Finally, DOC contends finding of fact twenty-one was not
supported by substantial evidence. That finding states:
On September 12, 2001, Secretary Beck
transmitted an email to Director Lofton
stating: This is good. I am a little more
comfortable in defending a Hines decision
rather than a Washington decision in the event
we are challenged by GG . . . . This email
tends to show that Respondent intended to hire
an African American male over a white female
regardless of qualification.
The ALJ determined this email supported Gordon's claim of
discrimination. Other evidence found as fact by the trial court
and unchallenged by the DOC was Oliver Washington, another
candidate . . ., was not as qualified as either Robert Hines or
[Gordon]. DOC asserts it never considered Washington for the
position and the email was only a message by Secretary Beck to
Lofton that he was content with the choice. However, the ALJ and
the trial court both found Secretary Beck's explanation for the
contents of the email to be unworthy of credence. See Carroll,
358 N.C. at 662, 599 S.E.2d at 896 (there is but one fact-findinghearing of record when witness demeanor may be directly observed.
Thus, the ALJ who conducts a contested case hearing possesses those
institutional advantages, that make it appropriate for a reviewing
court to defer to his findings of fact.). We are not permitted to
substitute our own judgment for the ALJ, even if a different
conclusion could result under a whole record review. Watkins, 358
N.C. at 199, 593 S.E.2d at 769.
3. Applicant Qualifications
 The ALJ and the trial court found as fact and concluded as
a matter of law that Gordon was more qualified than Hines. The DOC
asserts the ALJ and the trial court substituted their business
judgment for that of the DOC to determine what criteria is
relevant for the position. See Gibson, 308 N.C. at 140, 301 S.E.2d
at 84 (The trier of fact is not at liberty to review the soundness
or reasonableness of an employer's business judgment when it
considers whether alleged disparate treatment is a pretext for
discrimination.). The sole question is what is the motivation
behind the employer's decision . . . . [I]t is not enough . . . to
disbelieve the employer; the factfinder must believe the
plaintiff's explanation of intentional discrimination. Enoch, 164
N.C. App. at 242-43, 595 S.E.2d at 752 (internal citations and
quotation marks omitted). However, it is permissible for the
trier of fact to infer the ultimate fact of discrimination from the
falsity of the employer's explanation. Reeves v. SandersonPlumbing Prods., Inc., 530 U.S. 133, 147, 147 L. Ed. 2d 105, 119
The factfinder's disbelief of the reasons put
forward by defendant (particularly if
disbelief is accompanied by a suspicion of
mendacity) may, together with the elements of
the prima facie case, suffice to show
intentional discrimination. Thus, rejection
of the defendant's proffered reasons will
permit the trier of fact to infer the ultimate
fact of intentional discrimination.
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 125 L. Ed. 2d
407, 418 (1993).
a. Finding of Fact
Finding of fact twenty-three states:
It is found as a fact that both Robert Hines
and Petitioner were highly qualified for
promotion to position number 58000. As
between the two candidates, Petitioner was
more qualified in the following respects:
1. Petitioner has greater length of service,
27 years compared to 24 years,
2. Petitioner has more education, a 4 year
degree compared to a 2 year associates
3. Petitioner has achieved consistent
ratings of outstanding on her performance
appraisals compared to very good ratings
for Robert Hines,
4. Petitioner has made significant
contributions to the Department of
Corrections and served on statewide task
5. Petitioner scored higher on both the
interview for position 58000 and on the
Hines had more years experience in custody situations.
However, our review of the transcripts and record shows substantial
evidence exists to support the ALJ's and the trial court's findingsthat Gordon has met her burden to show that the DOC intentionally
discriminated against her. Gordon presented evidence from which
the finder of fact could conclude she was more qualified than Hines
based on her education, seniority, overall record with the DOC, her
outstanding grades on performance reports, and higher scores on
the interviewing and screening tests. This portion of the
assignment of error is overruled.
b. Conclusion of Law
In Dorsey v. UNC-Wilmington, this Court addressed a claim of
disparate treatment. 122 N.C. App. 58, 468 S.E.2d 557, cert.
denied, 344 N.C. 629, 477 S.E.2d 37 (1996). We held:
once the complaining employee meets her
initial burden of proving, by a preponderance
of the evidence, a prima facie case of such
disparate treatment, the employer then has
the burden of articulating some legitimate,
nondiscriminatory reason for the employee's
rejection. The employer's burden is satisfied
if it simply produces evidence that it hired a
better-qualified candidate. However, the
employee can ultimately prevail in her claim
of disparate treatment if she can prove that
the employer's claim to have hired a
better-qualified applicant is pretextual by
showing that she was, in fact,
better-qualified than the person chosen for
Id. at 63, 468 S.E.2d at 560 (citing N.C. Dept. of Correction v.
Hodge, 99 N.C. App. 602, 611-13, 394 S.E.2d 285, 290-91 (1990)).
Here, the advertised qualifications for Superintendent IV at
Pamlico Correctional Institution were contained in the notice for
applications: Brief Job Description: This position will be
responsible for the management and operation
of all functions of institutional operations,
including personnel, fiscal affairs, custody,
security, maintenance, and inmate programs.
Facility houses 529 inmates. Position manages
approximately 200 employees. Position is
responsible to formulate operational policy
and interpret division policy applications.
Extensive correctional experience and at least
four years of management experience in prison
operations is required.
Skills and abilities: Considerable knowledge
of the management techniques and human
resource development aspects of inmate custody
and program management. Some knowledge of
basic human psychology applicable to the
inmate population. Considerable knowledge of
departmental rules, policies, and procedures
concerning the custody, care, treatment and
training of inmates. Considerable knowledge
of the principles of administration involved
in operating a state correctional facility.
Ability to provide leadership necessary to
organize and supervise the activities of a
large group of employees. Ability to
establish and maintain effective relationship
with inmates, inmates' relatives, professional
and para-professional personnel, and
volunteers. Ability to express ideas clearly
and concisely, both orally and in writing.
Ability to think clearly and act quickly and
effectively during emergencies.
Education and Experience: Graduation from a
four-year college or university and three
years of supervisory, administrative, or
consultative experience in correction or
related work; or graduation from high school
and five years of supervisory experience
beyond the correctional officer level in
correction or related work; or an equivalent
combination of education and experience.
Necessary special qualification: must be
eligible for certification by the NC Justice
Training and Standards Council.
Based on Gordon's qualifications set out above and found by
both the ALJ and the trial court, substantial evidence exists
showing Gordon was objectively better qualified for the position
than Hines. We hold the ALJ and the trial court properly found as
fact and concluded as a matter of law that Gordon was more
qualified for the position than Hines to support her claim of race
and gender discrimination.
V. Attorneys' Fees
 The DOC contends the trial court erred in awarding
attorneys' fees and costs to Gordon. We disagree.
Three statutes are applicable to this issue. N.C. Gen. Stat.
§ 126-4 (2003) provides:
Subject to the approval of the Governor, the
State Personnel Commission shall establish
policies and rules governing each of the
. . . .
(11) In cases where the Commission finds
discrimination, harassment, or orders
reinstatement or back pay whether (i) heard by
the Commission or (ii) appealed for limited
review after settlement or (iii) resolved at
the agency level, the assessment of reasonable
attorneys' fees and witnesses' fees against
the State agency involved.
N.C. Gen. Stat. § 126-41 (2003) states:
The decision of the Commission assessing or
refusing to assess reasonable witness fees or
a reasonable attorney's fee as provided in
G.S. 126-4(11) is a final agency decision
appealable under Article 4 of Chapter 150B of
the General Statutes. The reviewing court may
reverse or modify the decision of theCommission if the decision is unreasonable or
the award is inadequate. The reviewing court
shall award court costs and a reasonable
attorney's fee for representation in
connection with the appeal to an employee who
obtains a reversal or modification of the
Commission's decision in an appeal under this
N.C. Gen. Stat. § 6-19.1 (2003) provides in part:
In any civil action, other than an
adjudication for the purpose of establishing
or fixing a rate, or a disciplinary action by
a licensing board, brought by the State or
brought by a party who is contesting State
action pursuant to G.S. 150B-43 or any other
appropriate provisions of law, unless the
prevailing party is the State, the court may,
in its discretion, allow the prevailing party
to recover reasonable attorney's fees,
including attorney's fees applicable to the
administrative review portion of the case, in
contested cases arising under Article 3 of
Chapter 150B, to be taxed as court costs
against the appropriate agency if:
(1) The court finds that the agency acted
without substantial justification in pressing
its claim against the party; and
(2) The court finds that there are no special
circumstances that would make the award of
attorney's fees unjust. The party shall
petition for the attorney's fees within 30
days following final disposition of the case.
The petition shall be supported by an
affidavit setting forth the basis for the
This Court considered each of the above statutes in addressing
an award of attorney's fees and costs in Morgan v. N.C. Dept. of
Transportation, 124 N.C. App. 180, 476 S.E.2d 431 (1996). We held
review of attorney's fees under N.C. Gen. Stat. § 126-41 was
limited to those fees accrued prior to judicial review. Id. at
183, 476 S.E.2d at 433 (N.C. Gen. Stat. § 6-19.1 does not apply to
services rendered prior to judicial review.). The trial courtmust review the Commission's decree of attorney's fees under N.C.
Gen. Stat. § 126-41. Id. at 184, 476 S.E.2d at 433.
A. Pre-Judicial Review
Here, the ALJ made extensive findings concerning attorneys'
fees and costs during its review. Following its consideration of
the matter, it substantially reduced the number of hours requested
by Gordon to be paid from 315.85 to 233.35 hours. The trial court
reviewed the ALJ's award and reviewed affidavits from counsel in
support of and in opposition to Gordon's motion for attorneys'
fees. In addition to those fees accrued prior to judicial review,
the trial court awarded additional attorneys' fees for
representation subsequent to the ALJ's decision.
Based on our review of both the ALJ's thorough consideration
and decision concerning attorneys' fees and costs prior to judicial
review and the trial court's subsequent adoption, we hold the trial
court did not err in determining the ALJ's award was not
unreasonable or inadequate.
B. Judicial Review
After reversing the Commission's decision, the trial court was
required to award Gordon attorneys' fees and costs. See N.C. Gen.
Stat. § 126-41 (The reviewing court shall award court costs and a
reasonable attorney's fee for representation in connection with the
appeal to an employee who obtains a reversal or modification of the
Commission's decision in an appeal under this section. (emphasis
supplied)). The trial court properly awarded attorneys' fees and
costs under N.C. Gen. Stat. § 126-41. Thus, we need not consider
the application of N.C. Gen. Stat. § 6-19.1.
C. Opportunity to Respond
The DOC also asserts it had no opportunity to respond to the
award of attorneys' fees to Gordon. Gordon correctly notes and the
record shows that on 28 April 2004, Judge J. Richard Parker sent
letters to both parties notifying them of his intention to reverse
the Commission's decision and adopt the decision of the ALJ.
Included in the letter is the following provision: Prior to
drafting an order reflecting my decision, I direct Ms. Bryant to
submit an affidavit regarding attorney's fees and costs of
Petitioner as directed by the Administrative Law Judge in his
decision. If the Respondent so elects an affidavit may be filed in
opposition to attorney's fees. The DOC's counsel responded on 10
May 2004, asserting, I will be responding to Ms. Bryant's
affidavit within one (1) week. On 12 May 2004, Judge Parker sent
both parties a letter affirming the ALJ's award of attorneys' fees
and costs and ordering additional attorneys' fees and costs.
We are not persuaded that the DOC did not have an opportunity
to respond. Two weeks passed between Judge Parker mailing the
first letter and drafting the order for additional attorneys' fees.
We hold the trial court provided sufficient notice and time for
both parties to respond to its request for affidavits in support of
or in opposition to attorneys' fees and costs. This assignment of
error is overruled.
The trial court properly reversed the Commission's decision
due to delay in entry of its decision and, as a result, adopted the
ALJ's recommended decision. N.C. Gen. Stat. § 150B-44.
Substantial evidence supported the ALJ's and the trial court's
findings of fact. Our de novo
review of the conclusions of lawshows Gordon proffered evidence to prove a prima facie
discrimination. The ALJ and trial court properly awarded Gordon
attorneys' fees and costs for representation before the ALJ, the
Commission, and the trial court. The trial court's adoption of the
ALJ's decision and its subsequent order is affirmed.
Judges MCCULLOUGH and BRYANT concur.
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