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
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
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.
, 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
(2) In excess of the statutory
authority or jurisdiction of the
(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
(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.
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.
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
, 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
, 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
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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