An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-941


Filed: 21 February 2006


v .                         Wake County
                            No. 04 CVS 1082

    Appeal by respondent from an order entered 17 May 2005 by Judge James C. Spencer, Jr. in Wake County Superior Court. Heard in the Court of Appeals 11 January 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crumpler, for respondent-appellant.

    Schiller & Schiller, PLLC, by David G. Schiller, for petitioner-appellee.

    SMITH, Judge.

    The North Carolina Department of Public Instruction (“respondent”) appeals from an order of the trial court affirming the State Personnel Commission's (“SPC”) decision that respondent did not have just cause to terminate John Leak (“petitioner”). For the reasons stated herein, we affirm.
    The pertinent facts and procedural history are as follows: In 2003, petitioner was employed by respondent as a consultant in the Alternative and Safe Schools Section. One of the responsibilities of consultants was to visit schools across the State that were at risk of being labeled “persistently dangerous schools” under the NoChild Left Behind Act. Petitioner visited Monroe Middle School in Union County as part of a team in May 2003. At the school, petitioner visited a classroom for which Regina Taylor-Dillard (“Dillard”) was responsible. Dillard, administrative assistant to the principal, served as a substitute teacher on that day.
    Petitioner sat at the back of the classroom and observed. After observing the class, petitioner walked to the front of the classroom and informed Dillard of his findings. Dillard alleged petitioner invaded her personal space, rubbed his hand up and down her leg, and made inappropriate comments. Respondent investigated the allegations of inappropriate and unprofessional conduct.
    By letter dated 4 September 2003, respondent informed petitioner that respondent was considering dismissal based upon the results of its investigation of the allegations of sexual harassment. By letter dated 5 September 2003, respondent notified petitioner of his dismissal from employment based on unacceptable personal conduct. Petitioner filed a grievance on 10 September 2003 alleging lack of just cause in violation of N.C. Gen. Stat. § 126-35 and a failure of the dismissal letter to meet the specificity requirements of the statute. Respondent upheld its dismissal decision. Respondent sent petitioner additional letters dated 12 and 17 September 2003 informing petitioner of his dismissal. Petitioner filed a petition in the Office of Administrative Hearings challenging respondent's determination that there was just cause for his dismissal and alleging the dismissal letter failed to meet the specificity required by law. A hearingwas conducted on 3 and 4 March 2004 before an administrative law judge (“ALJ”) who made findings of fact and conclusions of law and recommended SPC reverse respondent's termination of petitioner because respondent's determination of just cause was not supported by the evidence. The ALJ concluded the dismissal letter contained the specificity required by law. SPC adopted the recommended findings of fact of the ALJ in full and all of the ALJ's conclusions of law except conclusion five concerning the specificity of the dismissal letter. Instead, SPC concluded the dismissal letter did not meet the specificity requirements and concluded the language of the dismissal letter was “patently insufficient.” Respondent appealed SPC's determination to the Superior Court which affirmed. Respondent appeals.


    Respondent contends the trial court erred in finding that the dismissal letter did not meet the specificity requirements of N.C. Gen. Stat. § 126-35. We disagree.
    N.C. Gen. Stat. § 126-35(a) provides that “the employee shall, before the action is taken, be furnished with a statement in writing setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employee's appeal rights.” N.C. Gen. Stat. § 126-35(a)(2005). “This Court has interpreted section 126-35(a) as requiring the written notice to include a sufficiently particular description of the 'incidents [supporting disciplinary action] . . . so that the discharged employee will know precisely what acts or omissions werethe basis of his discharge.'” Owen v. UNC-G Physical Plant, 121 N.C. App. 682, 687, 468 S.E.2d 813, 817 (1996)(emphasis omitted) (quoting Employment Security Comm. v. Wells, 50 N.C. App. 389, 393, 274 S.E.2d 256, 259 (1981). The notice of termination should “provide names, dates, [and] locations” so that the employee will be able “to locate [the] alleged violations in time [and] place, [and] to connect them with [a] person or group of persons.” Id.
    In the instant case, the letter of dismissal, dated 12 September 2003, describes the general nature of the alleged violation in that it states, “you had been accused of making an inappropriate advance of a sexual nature on an employee at Monroe Middle School in Union County” and “you had made an unwanted sexual advance toward her”. The letter also provides the date of the alleged incident, “May 8, 2003”. The letter, however, lacks “sufficient particularity so that the discharged employee will know precisely what acts or omissions were the basis of his discharge.” Wells, 50 N.C. App. at 393, 274 S.E.2d at 259. We hold the letter of dismissal lacks the specificity required by N.C. Gen. Stat. § 126-35. Accordingly, the order of the trial court is affirmed.
    Respondent also contends the findings and conclusions of the ALJ as adopted by SPC are not supported by substantial evidence, are arbitrary and capricious, and are an abuse of discretion. We do not agree.
    Judicial review of a final determination of SPC is governed by N.C. Gen. Stat. § 150B-51(b) which provides in pertinent part:
        [I]n reviewing a final decision, the court may affirm the decision of the agency or remandthe 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 provisions;

            (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 discretion.

N.C. Gen. Stat. § 150B-51(b)(2005). “[T]he proper standard of review 'depends upon the issues presented on appeal.'” Meads v. N.C. Dep't of Agric., 349 N.C. 656, 662, 509 S.E.2d 165, 170 (1998)(quoting In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993)). In determining whether an agency's decision was arbitrary, capricious, unsupported by substantial evidence, or an abuse of discretion as alleged in the instant case, the reviewing court must apply the “whole record” test. Id. In applying the “whole record” test, the reviewing court must examine all competent evidence “'in order to determine whether the agency decision is supported by “substantial evidence.”'” N.C. Dep't of Correction v. McNeely, 135 N.C. App. 587, 591, 521 S.E.2d 730, 733(1999)(quoting ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)(quoting Amanini v. N.C. Dept. Of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Comr. of Insurance v. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977). The whole record test
        does not permit the court to replace the [agency's] judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo. Instead, the whole record test merely gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence.
McNeely, 135 N.C. App. at 592, 521 S.E.2d at 733 (internal citations and quotation marks omitted).
    The administrative agency is the judge of the credibility of witnesses and may “accept or reject in whole or part the testimony of any witness. Even though the ALJ made a recommended decision, credibility determinations, as well as conflicts in the evidence, are for the agency to determine.” Oates v. N.C. Dept. of Correction, 114 N.C. App. 597, 601, 442 S.E.2d 542, 545 (1994) (internal citations and quotation marks omitted). “If the Commission's decision is supported by substantial evidence, this Court must affirm the Commission's decision.” In re Appeal of Lane Co., 153 N.C. App. 119, 124, 571 S.E.2d 224, 227 (2002).
In the instant case, respondent challenges the following conclusion of law of SPC as recommended by the ALJ:        In view of the lack of credibility of the complaining witness, Ms. Taylor-Dillard, it is concluded as a matter of law that Respondent has failed to carry the burden of proof demonstrating just cause for its dismissal of Petitioner for reasons of improper personal conduct.

Respondent argues the findings of the ALJ “are not sufficient to support” the conclusion. After a careful review of the whole record, including the testimony of witnesses, we conclude there was substantial evidence to support the SPC's findings of fact and the findings support the conclusions of law. Both petitioner and complainant Dillard testified at the hearing before the ALJ; however, their testimony was conflicting. Dillard testified petitioner was inappropriate in conversation and in touching her. Petitioner denied any inappropriate behavior. Therefore, the determining factor in this case is the credibility of witnesses. Petitioner presented six witnesses who all testified petitioner had a reputation for honesty and had never behaved inappropriately with a female in their presence. The ALJ made several detailed findings concerning the credibility issue and SPC adopted those findings. The fact finder noted Dillard's courtroom testimony was not consistent with prior statements she made concerning the same events. We reiterate that, “the credibility of the witnesses and resolution of conflicting testimony is a matter for the administrative agency to determine.” In re Appeal of General Tire, 102 N.C. App. 38, 40, 401 S.E.2d 391, 393 (1991). In the instant case, SPC resolved the credibility issue in favor of petitioner. We conclude there is sufficient evidentiary support in the recordfor SPC's conclusion that “ [i]n view of the lack of credibility of the complaining witness, Ms. Taylor-Dillard . . . [r]espondent has failed to carry the burden of proof demonstrating just cause for its dismissal of [p]etitioner for reasons of improper personal conduct.” In light of the foregoing, we cannot say that SPC's decision was arbitrary or capricious or an abuse of discretion. See Comr. of Insurance v. Rate Bureau, 300 N.C. 381, 420, 269 S.E.2d 547, 573 (1980) (“Agency decisions have been found arbitrary and capricious, inter alia, when such decisions are whimsical because they indicate a lack of fair and careful consideration; [or] when they fail to indicate 'any course of reasoning and the exercise of judgment[.]'”). Accordingly, the order of the trial court is affirmed.
    Judges BRYANT and CALABRIA concur.
    Report per Rule 30(e).

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