Appeal by petitioner from an order entered 2 March 2005 by
Judge C. Phillip Ginn in Watauga County Superior Court. Heard in
the Court of Appeals 25 January 2006.
Ferguson, Stein, Chambers, Gresham & Sumter, P.A., by John W.
Gresham, for petitioner-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas J. Ziko, for respondent-appellees.
Dr. Shah Mahmoud (petitioner) appeals from an order and
judgment entered 2 March 2005 affirming his discharge from the
Appalachian State University faculty for misconduct of such a
nature as to indicate he is unfit to continue as a member of the
faculty. For the reasons below, we affirm the trial court's order
Facts and Procedural History
On 10 February 1994, termination procedures were initiated
against petitioner by Harvey R. Durham, then Provost and Vice
Chancellor for Academic Affairs at Appalachian State University
(ASU), in Boone, North Carolina (collectively respondents along
with the University of North Carolina, Appalachian State
University, and Molly C. Broad, President of the University of
North Carolina). Mr. Durham cited five events in support of his
decision to initiate termination proceedings against petitioner.
The first three allegations related to complaints that petitioner
had exposed his genitalia to ASU staff and faculty; the fourth
allegation was that petitioner had kept urine in his office and had
poured it into a water fountain; and the fifth was that petitioner
had submitted false information regarding his age and/or date of
birth on his application for employment with ASU and other
documents submitted to university officials.
Following an evidentiary hearing before a Faculty Grievance
Hearing Committee, the Committee recommended that petitioner's
employment be terminated based on two of the exposure incidents and
petitioner's submission of false information. The Chancellor, as
the final decision maker, accepted this recommendation and
petitioner appealed to the ASU Board of Trustees. The ASU Board of
Trustees upheld the termination decision of the Chancellor and
petitioner appealed to the Board of Governors of the University of
North Carolina. The Board of Governors found error had occurred in
the Chancellor's decision making because he had failed to conductan independent review of the record as required by University of
North Carolina Regulations, but the Board of Governors further
found the error was cured by the review by the ASU Board of
Following the final decision by the Board of Governors, Dr.
Mahmoud filed a Petition for Judicial Review on 13 June 1995. On
15 May 1996, Judge Loto Greenlee Caviness entered an Order and
Judgment overturning respondents' termination decision because the
decision was made upon an unlawful procedure and ordered
respondents to either reinstate petitioner or conduct a new hearing
that comported with all due process requirements. Respondents
appealed Judge Caviness' ruling and on 7 May 1997 this Court
dismissed respondents' appeal on the grounds that it was
On 25 August 1997, respondents notified petitioner of their
intent to terminate petitioner's employment with ASU based upon the
original charges. A hearing was held before a reconstituted
Faculty Grievance Hearing Committee on 15 and 16 December 1997 and
the committee issued its recommendation report to ASU's Chancellor
on 8 January 1998. The committee recommended that ASU not continue
employing petitioner, concluding petitioner intentionally exposed
his genitalia on two occasions. However, the committee could not
determine whether petitioner intentionally poured urine into a
drinking fountain or whether petitioner intentionally
misrepresented his date of birth on documents submitted to the
University. On 19 December 2002, ASU's Chancellor Francis T. Borkowski
issued his decision to terminate petitioner's employment with ASU.
After a review of the evidence, Chancellor Borkowski agreed with
the committee's recommendations regarding the two incidents of
exposure and also found sufficient evidence to support a finding
that petitioner did pour urine into a drinking fountain.
Petitioner appealed through the university process wherein the ASU
Board of Trustees rejected the Chancellor's decision that
petitioner should be discharged for pouring urine into a drinking
fountain but affirmed petitioner's dismissal based upon the two
exposure incidents. On 13 November 2003, the Board of Governors of
the University of North Carolina affirmed the decision to discharge
petitioner from his employment with ASU based upon the two
incidents of exposure.
Petitioner subsequently filed a petition for judicial review
on 22 December 2003. This matter was heard on 22 November 2004 in
Watauga County Superior Court before the Honorable C. Phillip Ginn.
By Order entered 2 March 2005, the trial court affirmed
respondents' decision to discharge petitioner. Petitioner appeals.
Petitioner raises the issues of whether the trial court erred
in determining that: (I) the decision to terminate petitioner's
employment with ASU was in accordance with the due process
requirements of the Fourteenth Amendment to the United States
Constitution; and (II) the record, taken as a whole, was sufficientto support the decision to terminate petitioner's employment with
Standard of Review
Appeals from final administrative decisions of the University
of North Carolina and its constituent institutions are subject to
judicial review under Article 4 of Chapter 150B of the North
Carolina General Statutes. N.C. Gen. Stat. § 150B-1(f) (2005).
Under Article 4,
an agency's final decision may be reversed or
modified only if the reviewing court
determines that the petitioner's substantial
rights may 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 . . . in
view of the entire record as
(6) Arbitrary[,] capricious[, or an
abuse of discretion].
North Carolina Dep't of Env't & Natural Res. v. Carroll
, 358 N.C.
649, 658-659, 599 S.E.2d 888, 894 (2004); N.C. Gen. Stat. §
The first four grounds for reversing or modifying an agency's
decision are considered law based inquiries and receive de novo
, 358 N.C. at 659, 599 S.E.2d at 894. Under the
standard of review, the trial court considers the matter[s]
anew and freely substitutes its own judgment for the agency's.
at 660, 599 S.E.2d at 895 (citations and quotations omitted).
The final two grounds for reversing or modifying an agency's
decision are characterized as fact-based inquiries and are
reviewed under the whole-record test. Id.
at 659, 599 S.E.2d at
894. Under the whole-record test, the reviewing court may not
substitute its judgment for the agency's as between two conflicting
views, even though it could reasonably have reached a different
result had it reviewed the matter de novo
. Watkins v. North
Carolina State Bd. of Dental Exam'rs
, 358 N.C. 190, 199, 593 S.E.2d
764, 769 (2004). The court must examine all the record evidence
-- that which detracts from the agency's findings and conclusions
as well as that which tends to support them -- to determine whether
there is substantial evidence to justify the agency's decision.
(citing Elliott v. North Carolina Psychology Bd.
, 348 N.C. 230,
237, 498 S.E.2d 616, 620 (1998)). Substantial evidence is
relevant evidence a reasonable mind might accept as adequate to
support a conclusion. N.C. Gen. Stat. § 150B-2(8b) (2005);
, 358 N.C. at 199, 593 S.E.2d at 769.
In the instant case, petitioner's first issue concerns a
violation of constitutional provisions and will thus be reviewed de
. Petitioner's second issue concerns whether respondents'
decision to terminate petitioner's employment with ASU is supported
by substantial evidence in view of the entire record as submitted. Determining whether a public employer had just cause to
[discharge] its employee requires two separate inquiries: first,
'whether the employee engaged in the conduct the employer alleges,'
and second, 'whether that conduct constitutes just cause for [the
, 358 N.C. at 665, 599 S.E.2d at 898 (quoting
Sanders v. Parker Drilling Co.
, 911 F.2d 191, 194 (9th Cir. 1990),
, 500 U.S. 917, 114 L. Ed. 2d 101 (1991)). The first
of these inquires is a question of fact and is reviewed under the
whole record test, while the second inquiry is a question of law
and is reviewed de novo
, 358 N.C. at 665-66, 599 S.E.2d
at 898 (citations omitted).
Petitioner first contends the trial court erred in determining
that respondents' decision to terminate petitioner's employment
with ASU was in accordance with the due process requirements of the
Fourteenth Amendment to the United States Constitution. Petitioner
presents three arguments in support of this contention: (1) the
Chancellor did not act as a finder of fact in the dismissal
proceedings, but rather engaged in some form of an appellate review
in violation of the rules for termination proceedings under the
Code of the University of North Carolina; (2) the Chancellor based
his decision upon an incomplete transcript of the Faculty Grievance
Hearing where it was the University's obligation to ensure the
Chancellor had a complete transcript; and (3) the Chancellor's
decision reflected a vituperative lack of neutrality establishing
a bias against petitioner in this matter. We disagree. As a tenured member of the ASU faculty, Mahmoud had a property
right in his continued employment at ASU and was entitled to
procedural due process protection. Board of Regents of State
Colleges v. Roth
, 408 U.S. 564, 576-77, 33 L. Ed. 2d 548, 560-61
(1972); Huang v. Bd. of Governors of the Univ. of North Carolina
902 F.2d 1134, 1141 (4th Cir. 1990); Peace v. Employment Sec.
, 349 N.C. 315, 321, 507 S.E.2d 272, 277-78 (1998). Due
process requires that decisions to discharge a state employee with
tenure be made by an unbiased, impartial decision maker. Crump v.
Bd. of Educ. of Hickory Admin. Sch. Unit
, 326 N.C. 603, 615, 392
S.E.2d 579, 585 (1990). A public employee facing an
administrative hearing is entitled to an impartial decision maker.
To make out a due process claim based on [bias], an employee must
show that the decision-making board or individual possesses a
disqualifying personal bias. Leiphart v. North Carolina Sch. of
, 80 N.C. App. 339, 354, 342 S.E.2d 914, 924 (1986)
Chancellor as Final Decision Maker
Petitioner argues that because the Chancellor's first decision
in this matter was reversed by Judge Caviness for a failure to
conduct an adequate review before making his decision and that the
Chancellor's current decision contains a long and irrelevant
discourse on both state and federal cases dealing with the loss of
testimony establish that the Chancellor is not acting as a final
decision maker as required by the Code of the University of North
Carolina. However, petitioner cites no authority in support ofthis argument. The errors made by the Chancellor in the first
decision cannot be imputed to the second decision merely because
the same person made both decisions. After the first decision was
reversed, respondents reinitiated proceedings to terminate
petitioner's employment with ASU. A new hearing was convened
before a new Faculty Grievance Committee which issued a report
recommending respondents terminate petitioner's employment. The
Chancellor subsequently reviewed the evidence in the record and
reported his findings agreeing with the Faculty Grievance
Committee's findings. The Chancellor also found sufficient
evidence in the record to support a finding that petition did pour
urine into a drinking fountain. The Chancellor's findings and
decision show that he was acting as a final decision maker and not
merely reviewing the report of the Faculty Grievance Committee for
Petitioner next argues his procedural due process rights were
violated when the Chancellor based his decision upon an incomplete
transcript of the Faculty Grievance Hearing where it was the
University's obligation to ensure the Chancellor had a complete
transcript. While the transcript of the hearing before the Faculty
Grievance Committee is incomplete because a tape, on which portions
of the cross-examination of petitioner were recorded, was used to
record subsequent portions of the hearing, petitioner presents no
authority supporting his contention that this error violated his
procedural due process rights. Further, petitioner made no attemptto assist in reconstructing the missing portions of the transcript,
arguing a new hearing was required. Petitioner asserted that the
record before the Chancellor could not support the findings of the
Faculty Grievance Committee due to the missing testimony and thus
a new hearing was required.
A new hearing would be required where the the transcription
of the entire [proceeding] appears to be incomplete and, at places,
simply inaccurate. State v. Sanders
, 312 N.C. 318, 319, 321
S.E.2d 836, 837 (1984). In the instant case, as the record before
the Chancellor supports his decision, see Issue II
petitioner does not otherwise show he was prejudiced by the failure
to include the missing testimony, petitioner cannot establish that
his due process protections were violated.
Petitioner lastly argues his procedural due process rights
were violated because the Chancellor was biased and petitioner was
not afforded a fair and impartial hearing. Petitioner contends the
Chancellor's delay in making his decision to terminate petitioner's
employment and the substance of the Chancellor's findings show a
bias against petitioner. However, petitioner points to nothing in
the Chancellor's findings as an example of bias and cites to no
authority supporting a finding of bias due to a delay in the
reporting of findings made by a final decision maker. Petitioner
has not established a disqualifying bias on the part of the
Chancellor. Accordingly, this assignment of error is overruled.
Petitioner next argues the trial court erred in determining
that the record, taken as a whole, was sufficient to support the
decision to terminate petitioner's employment with ASU. At the
hearing petitioner acknowledged that his genitals could have been
exposed on the two occasions discussed by the Faculty Grievance
Hearing Committee. Thus the only issues before this Court are
whether there was sufficient evidence before the Chancellor to
support a finding the exposure was intentional and, if so, whether
that conduct would constitute just cause for terminating
petitioner's employment with ASU.
In the context of a case involving discharge from State
employment, an employee's subjective state of mind is manifestly
a question of fact and, therefore, charges which involve questions
of the employee's motivation for his conduct must be reviewed under
the whole-record test. Carroll
, 358 N.C. at 671, 599 S.E.2d at
902. The 'whole record' test does not allow the reviewing court
to replace the [Chancellor's] judgment as between two reasonably
conflicting views, even though the court could justifiably have
reached a different result had the matter been before it de novo
Thompson v. Wake County Bd. of Educ.
, 292 N.C. 406, 410, 233 S.E.2d
538, 541 (1977); see also State ex rel. Comm'r of Ins. v. North
Carolina Rate Bureau
, 300 N.C. 381, 406, 269 S.E.2d 547, 565 (1980)
(it is for the administrative body, to determine the weight and
sufficiency of the evidence and the credibility of the witnesses,
to draw inferences from the facts, and to appraise conflicting and
circumstantial evidence). After a review of the record before this Court, we determine
there was sufficient evidence before the Chancellor to support his
findings and conclusion that petitioner's employment with ASU be
terminated. Further, we hold as a matter of law, there was just
cause for terminating petitioner's employment with ASU. This
assignment of error is overruled.
Judges CALABRIA and JOHN concur.
Report per Rule 30(e).
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