Barron v. Eastpointe Human Servs. Lme ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-380
Filed: 5 April 2016
Greene County, No. 14 CVS 132
ALBERT BARRON, Petitioner,
v.
EASTPOINTE HUMAN SERVICES LME, Respondent.
Appeal by Respondent from an order entered 5 January 2015 by Judge Paul L.
Jones in Superior Court, Greene County. Heard in the Court of Appeals
19 October 2015.
Gray Newell Thomas, LLP, by Angela Newell Gray, for Petitioner-Appellee.
The Charleston Group, by Jose A. Coker, R. Jonathan Charleston, Coy E.
Brewer, Jr., and Dharmi B. Tailor, for Respondent-Appellant.
McGEE, Chief Judge.
Eastpointe Human Services LME (“Eastpointe”), appeals from an order of the
trial court (“the trial court’s order”), reversing the final decision of an administrative
law judge (“the ALJ’s decision”) that held Eastpointe (1) had grounds to dismiss
petitioner Albert Barron (“Mr. Barron”) as an employee and (2) had given Mr. Barron
sufficient notice of the reasons for his dismissal. The trial court held that Eastpointe
“did not [meet] its burden of proof that it had ‘just cause’ to dismiss” Mr. Barron and
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that the ALJ’s decision was “[a]ffected by other error of law.” We reverse the order
of the trial court.
I. Background
Eastpointe describes itself in its brief as
a local political subdivision of the State of North Carolina
and a managed care organization that serves twelve (12)
counties in eastern North Carolina. The agency has
responsibility for oversight, coordination, and monitoring
of mental health, intellectual developmental disabilities,
and substance use addiction services in its catchment area.
Eastpointe authorizes payment of medically necessary
Medicaid services for residents of the catchment area
whose Medicaid originates in the Eastpointe region.
Eastpointe also provides housing to a limited number of
special needs consumers.
(footnotes omitted).
Eastpointe hired Mr. Barron in 2001. Mr. Barron became Eastpointe’s
Housing Coordinator in 2006, and his title was changed to Director of Housing when
Eastpointe merged with two similar managed care organizations in 2012. As Director
of Housing, Mr. Barron “provide[d] direction in the development of affordable housing
for special needs populations . . . [u]nder minimal supervision of the Chief of Clinical
Operations[.]”
A consumer of housing services (“Consumer”) accused Mr. Barron, inter alia,
of touching her sexually without her consent in August 2012 and also of promising
her furniture if she entered into a relationship with him. Mr. Barron was
subsequently placed on “Investigative Status with pay” and, after a pre-dismissal
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conference, he was dismissed from employment with Eastpointe on
19 December 2012. Mr. Barron petitioned the Office of Administrative Hearings to
review his dismissal by filing a “Petition for a Contested Case Hearing[.]” After a
hearing, the ALJ’s decision affirmed his dismissal. Mr. Barron petitioned the
Superior Court of Greene County to review the ALJ’s decision, and the trial court
reversed the ALJ’s decision. Eastpointe appeals.
II. The Evidence
A. Mr. Barron’s Interactions with Consumer
An administrative hearing was held on 23 October 2013 and 16 January 2014
(hereinafter, “the hearing”) in this matter. During the hearing, Karen Holliday (“Ms.
Holliday”), a Housing Specialist with Eastpointe, testified that, in late August 2012,
she asked Mr. Barron to take a copy of Consumer’s lease to Consumer. Mr. Barron
testified that he agreed to do so and went to Consumer’s home on the morning of
24 August 2012. Mr. Barron and Consumer both testified that Consumer answered
the door, informed Mr. Barron that she was not properly dressed, and asked Mr.
Barron to return at a later time. Mr. Barron agreed and left.
Ms. Holliday testified she received a call from Consumer’s case manager, Joy
Coley (“Ms. Coley”), later that day indicating Consumer was ready for Mr. Barron to
deliver her lease. Consumer testified Mr. Barron returned to her home later that day
and that she was in the kitchen preparing food for her two sons. Consumer testified
Mr. Barron entered her home, spoke to her sons for a while, and said “y’all have a
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sexy mom[.]” In response, Consumer instructed her boys to leave the kitchen.
Consumer further testified
[Mr. Barron] got up and he came around, and he told me
himself how fine and sexy I was. He asked me for a hug. I
gave him a hug. . . . [H]e grabbed my buttocks and turned
around and pulled his hand around and grabbed my
private part, and I started backing up, and he pulled me
back closer to him. He told me that if I ever told anybody
that he would – he would take the house away from me that
he blessed me with. . . . [H]e [also] told me basically if I
started seeing him that he would make sure . . . I got
furniture and that he would take care of me and my boys,
[that] he would make sure that I wouldn't go without.
Mr. Barron acknowledged that, later that day, he sent Consumer some text messages
that read, “H[i] [Consumer], this is Albert and this is my personal cell. It was so
lovely meeting with you today . . . . [P]lease send me some of those amazing pics
[your] son let me [see] on [your] phone.” Consumer testified she sent Mr. Barron two
pictures of herself, in which she was wearing different dresses and was posing for the
camera. The texts and pictures were admitted into evidence at the hearing without
objection. Mr. Barron acknowledged that Consumer sent him one picture, at his
request, and that he responded by texting “Gorgeous!!!” Mr. Barron testified his
response of “Gorgeous!!!” was meant “to describe something elegant or something
with splendor, or something like that because, like a sunset, something like that. I
use that word a lot and – to put that significance on something, yeah.”
Ms. Holliday testified that Consumer called her within a couple of days of Mr.
Barron’s visit to Consumer’s home. According to Ms. Holliday, Consumer seemed
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very upset and [was] saying that Mr. Barron . . . had been
really inappropriate with her and she didn't like the fact
that he had disrespected her in front of her kids. And to
my recollection [Consumer said] something about living
room furniture and that he had promised her living [room]
furniture or something to that nature. . . . [Consumer also]
state[d] at that time that Mr. Barron did touch her
buttocks.
Ms. Holliday testified she met with Mr. Barron the following day and confronted him
about engaging in “inappropriate behavior” with Consumer, although Ms. Holliday
testified she did not go into the specifics of Consumer’s allegations that were sexual
in nature. Mr. Barron denied any wrongdoing. Ms. Holliday also confronted Mr.
Barron about his allegedly offering Consumer furniture, which he denied. Ms.
Holliday testified she did not report either of Consumer’s allegations further up the
chain of command because Mr. Barron was Ms. Holliday’s supervisor. Regarding
Consumer’s allegation that Mr. Barron had offered her furniture, Mr. Barron testified
he also did not report that allegation up the chain of command. Dr. Susan Corriher
(“Dr. Corriher”), Eastpointe’s Chief of Clinical Operations, testified that not reporting
Consumer’s allegations up the chain of command violated Eastpointe’s Corporate
Compliance Manual and Human Resources Policy and Procedure Manual.1
1 Eastpointe’s Corporate Compliance Manual states that “[i]t will be the policy of Eastpointe
to take all reports of potential violations [of the law] seriously. Any such report must be directed to
the Corporate Compliance Officer[.]” Eastpointe’s Human Resources Policy and Procedure Manual
states that, when receiving a consumer complaint that “cannot be resolved to the complainant’s
satisfaction without further investigation[,]”
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Mr. Barron testified he received another text from Consumer in
September 2012 that stated: “I wonder[ ] [what] or who scared [you] to have made
[you] change [your] mind about [what] all [you] said to me [before you left] my [house]
that [day].” He then received a string of texts from Consumer between 31 October
and 2 November 2012, stating that Consumer had a “huge surprise” for Mr. Barron,
that he “screwed up[,]” and that he messed with “the[ ] [w]rong chick.” Mr. Barron
contacted Dr. Corriher about the texts on 2 November 2012.
B. The Investigation
Mr. Barron met with Dr. Corriher and Kenneth E. Jones (“Mr. Jones”),
Eastpointe’s Chief Executive Officer, on 5 November 2012 (“the 5 November
meeting”) to discuss Consumer’s allegations and the events that had taken place since
24 August 2012. Dr. Corriher testified Mr. Barron acknowledged asking for and
receiving a picture from Consumer and that he replied by texting: “Gorgeous!!!”
According to Dr. Corriher, Mr. Barron said he did not report the texts or allegations
to her earlier because “the text messages had stopped at some point, and he thought
staff will engage the formal complaint process. The staff who will
receive the complaint will document the following information within
[an Eastpointe] database:
 Date complaint received
 Complainant’s name and contact information
 Relationship to the consumer (if not the consumer)
 Brief description of the nature of the complaint
...
This information is then immediately sent to the Customer Services
Lead or designee.
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it was over,” and that he later reported the texts to her because Consumer had started
texting him again and his attorney had advised him to do so. Dr. Corriher further
testified that, during the 5 November meeting, she specifically asked Mr. Barron
about Consumer’s accusations that he had touched Consumer, which Mr. Barron
denied.
Dr. Corriher testified that, after the 5 November meeting, she consulted with
Theresa Edmondson (“Ms. Edmondson”), Eastpointe’s Director of Corporate
Compliance and Human Resources, and instituted an investigation into Consumer’s
allegations (“the investigation”). The Eastpointe staff members assigned to
investigate Consumer’s allegations (“the investigative team”) consisted of Dr.
Corriher, Ms. Edmondson, Lynn Parrish, a member of the Human Resources
Department at Eastpointe, and Tashina Raynor, Eastpointe’s Director of Grievance
and Appeals.
Pending the results of the investigation, Mr. Barron was placed on
“Investigative Status with pay” on 6 November 2012. The letter from Eastpointe
notifying Mr. Barron of the change in his status (“the investigative status letter”)
stated, in part, that
[t]he reports of unacceptable conduct resulting in your
being placed in Investigatory Status with pay are:
1. Allegations of inappropriate relationship with a
consumer[.]
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2. Not reporting these allegations to your supervisor in a
timely manner.
Dr. Corriher testified about a telephone interview she had with Consumer on
26 November 2012 to discuss the allegations against Mr. Barron. Dr. Corriher
documented that interview, and the statements reportedly made by Consumer during
the interview were generally consistent with those reported by Ms. Holliday from her
initial telephone conversation with Consumer. Mr. Barron met with the investigative
team on 29 November 2012 to answer questions about Consumer’s allegations (“the
29 November meeting”). According to Mr. Barron, he “was very surprised” by the
questions asked during the 29 November meeting, because he thought the
investigative team was investigating his concerns regarding Consumer’s text
messages to him. Mr. Barron submitted a four-page summary of his account of the
interactions between him and Consumer to the investigative team on
30 November 2012.
C. The Pre-Dismissal Conference and Dismissal Letter
Eastpointe issued Mr. Barron a notice of pre-dismissal conference, dated
13 December 2012 (“the pre-dismissal notice”), that stated, in part,
[t]he findings of the investigative team are as follows:
1. A consumer of housing services (“Consumer”) has
made accusations of inappropriate conduct by you.
This accusation of inappropriate conduct included
speaking [to] and touching her in an inappropriate
manner, promising her living room furniture, [and]
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communicating with her through text messaging on
your personal cell phone.
...
4. By your own admission you learned on August 29,
2012 from a co-worker that [ ] Consumer was making
accusations about your inappropriate personal
conduct towards her. Further, you did not report this
fact to your [supervisor] until [November] 5, 2012.
...
6. Based on text messages you presented to
management, you engaged in unprofessional and
inappropriate communication with [ ] Consumer.
Eastpointe held a pre-dismissal conference on 17 December 2012 (“the pre-
dismissal conference”), in which Mr. Barron participated. Mr. Jones sent Mr. Barron
a dismissal letter, dated 19 December 2012 (“the dismissal letter”), that stated, in
part,
our decision is to dismiss you from your position as Director
of Housing effective Wednesday, December 19, 2012 at 5:00
p.m. The basis for termination includes unacceptable
personal conduct and conduct unbecoming an employee
that is detrimental to the agency services.
The determination was based on the following[ ]:
1. A consumer of housing services made accusations of
inappropriate conduct by you.
2. You confirmed you communicated with this consumer
on your personal cell phone[,] . . . [and] [i]t was
determined that some of the communications were not
work related or professional.
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3. That you learned on August 29, 2012 from a co-worker
that this consumer was making accusations about you
exhibiting inappropriate personal contact towards her,
but did not report this to your supervisor until
[November] 5, 2012.
...
6. You inappropriately asked this consumer for a picture,
which was sent, and received by you.
D. The ALJ’s Decision
Mr. Barron filed a “Petition for a Contested Case Hearing” with the Office of
Administrative Hearings, dated 14 January 2013. Mr. Barron alleged in his petition
that Eastpointe
has substantially prejudiced [his] rights by acting
erroneously, failing to use proper procedure, and acting
arbitrarily or capriciously when it suspended and
ultimately terminated the petitioner for alleged
unacceptable personal conduct related to a consumer’s
alleged accusations of inappropriate conduct. [Mr. Barron]
contends that [Eastpointe] terminated him without just
cause based on false accusations.
After a hearing, the ALJ, in a decision dated 22 April 2014, made numerous findings
in line with Consumer’s allegations and concluded that
33. [Mr. Barron’s] willful failure to report the allegations
against him until matters escalated violated known
and written work rules.
34. [Mr. Barron’s] personal relations and touching of
Consumer [ ] were inappropriate behavior[s] that
constituted unacceptable personal conduct and
conduct unbecoming an employee. [Mr. Barron’s]
interactions and text messaging with Consumer [ ]
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was “conduct unbecoming a state employee that is
detrimental to state service[ ]” [under 25 N.C.A.C.
1J .0614(8).]
...
38. In this case, [Mr. Barron] did in fact engage in the
conduct as alleged in four of the six enumerated bases
in the [dismissal] letter of December 19, 2012, which
constitutes unacceptable conduct as defined by
[25 N.C.A.C. 1J .0614(8)]. [Eastpointe] had “just
cause” for disciplining [Mr. Barron].
The ALJ’s decision also noted that the dismissal letter was “inartfully” drafted but
held, nonetheless, that it provided Mr. Barron with sufficient notice of the grounds
for his dismissal.
E. The Trial Court’s Order
In a petition dated 16 May 2014, Mr. Barron petitioned the Superior Court of
Greene County to review the ALJ’s decision. Mr. Barron filed with the trial court
“Petitioner’s Memorandum in Support of His Petition for Judicial Review” (“the
Memorandum”), dated 4 December 2014.2 The trial court’s order, entered
5 January 2015, is less than two pages in length and summarily concludes that
(2) [Eastpointe] did not [meet] its burden of proof that it
had “just cause” to dismiss [Mr. Barron] for
unacceptable personal conduct without warning or
other disciplinary action.
2 Mr. Barron’s Memorandum is largely replicated, almost word for word, in his brief before this
Court.
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(3) The substantial rights of [Mr. Barron] were prejudiced
because the ALJ's findings, inferences, conclusions, or
decisions are:
a. Affected by other error of law;
b. Unsupported by substantial evidence admissible
under G.S. §§150B-29(a), 150B-30, or 150B-31 in
view of the entire record as submitted; and,
c. Arbitrary, capricious, or an abuse of discretion.
(4) There is no evidence that [Mr. Barron] willfully
violated any known or written work rule, engaged in
conduct for which no reasonable person should expect
to receive prior warnings, or conduct unbecoming a
state employee that is detrimental to state service.
(5) The ALJ's decision has no rational basis in the
evidence.
Accordingly, the trial court reversed the ALJ’s decision.
III. Standard of Review
Judicial review of a final agency decision in a contested case is governed by
N.C. Gen. Stat. § 150B-51 (2015). The statute “governs both trial and appellate court
review” of administrative decisions. N.C. Dept. of Correction v. Myers, 120 N.C. App.
437, 440, 462 S.E.2d 824, 826 (1995), aff'd per curiam, 344 N.C. 626, 476 S.E.2d 364
(1996). Pursuant to N.C.G.S. § 150B-51(b),
[t]he court reviewing a final decision may . . . reverse or
modify the decision if the substantial rights of the
petitioner[ ] may have been prejudiced because the
findings, inferences, conclusions, or decisions are:
...
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(4) Affected by other error of law;
(5) Unsupported by substantial evidence . . . ; or
(6) Arbitrary, capricious, or an abuse of discretion.
When the issue for review is whether an agency decision was supported by
“substantial evidence” or was “[a]rbitrary, capricious, or an abuse of discretion,” this
Court determines whether the trial court properly applied the “whole record” test.
N.C.G.S. § 150B-51(c). This requires
examin[ing] 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.
Substantial evidence is relevant evidence a reasonable
mind might accept as adequate to support a conclusion.
N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895
(2004) (citation and quotation marks omitted). The trial court “may not substitute
its judgment for the agency’s as between two conflicting views,” id., and it is “bound
by the findings” made below if they are “supported by competent, material, and
substantial evidence in view of the entire record as submitted[,]” Bashford v. N.C.
Licensing Bd. for General Contractors, 107 N.C. App. 462, 465, 420 S.E.2d 466, 468
(1992).
We review de novo the question of whether an agency decision was “[a]ffected
by other error of law[.]” N.C.G.S. § 150B-51(c); see Skinner v. N.C. Dep't of Corr., 154
N.C. App. 270, 279, 572 S.E.2d 184, 191 (2002) (“[W]here the initial reviewing court
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should have conducted de novo review, this Court will directly review the [agency’s]
decision under a de novo review standard.”). “However, the de novo standard of
review . . . [also] does not mandate that the reviewing court make new findings of fact
in the case. Instead, the court, sitting in an appellate capacity, should generally defer
to the administrative tribunal’s ‘unchallenged superiority’ to make findings of fact.”
Early v. County of Durham, Dep’t of Soc. Servs., 193 N.C. App. 334, 342, 667 S.E.2d
512, 519 (2008) (citation omitted). “[W]e employ the appropriate standard of review
regardless of that utilized by the reviewing trial court.” Skinner, 154 N.C. App. at
279, 572 S.E.2d at 191.
IV. Abandonment of Issues
As a preliminary matter, Mr. Barron contends in his brief that Eastpointe has
abandoned its arguments on appeal because it did not set out formal “assignments of
error” in the record or in its brief. However, the requirement that an appellant set
out “assignments of error no longer exist[s] under our Rules of Appellate procedure;
[it] disappeared . . . when the Rules were revised in 2009.” Bd. of Dirs. of Queens
Towers Homeowners' Assoc., v. Rosenstadt, 214 N.C. App. 162, 168, 714 S.E.2d 765,
769 (2011). Accordingly, Mr. Barron’s argument is without merit.
V. Just Cause
Eastpointe contends on appeal that the trial court erred by reversing the ALJ’s
decision and asserts it established just cause to dismiss Mr. Barron as an employee.
Mr. Barron argued to the trial court below that the ALJ erred in concluding that
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Eastpointe had established just cause to dismiss Mr. Barron. The trial court agreed
with Mr. Barron, holding that the ALJ’s decision was “[u]nsupported by substantial
evidence[,]” “[a]rbitrary, capricious, or an abuse of discretion[,]” and that there was
“no rational basis in the evidence” to establish just cause for Eastpointe’s dismissal
of Mr. Barron. We conclude that Eastpointe did have just cause to terminate Mr.
Barron.
N.C. Gen. Stat. § 126-35(a) (2015) provides that “[n]o career State employee
subject to the North Carolina Human Resources Act shall be discharged, suspended,
or demoted for disciplinary reasons, except for just cause.” Establishing just cause
“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
disciplinary action taken.” Carroll, 358 N.C. at 665, 599 S.E.2d at 898 (citation,
quotation marks, and brackets omitted). “[T]he first of these inquiries is a question
of fact . . . [and is] reviewed under the whole record test. . . . [T]he latter inquiry is a
question of law . . . [and] is reviewed de novo. Id. at 665–66, 599 S.E.2d at 898; see
N.C.G.S. § 150B-51(c).
Just cause includes “unacceptable personal conduct” by an employee.
25 N.C.A.C. 1J .0604(b). Unacceptable personal conduct is defined, in part, as
(a) conduct for which no reasonable person should expect
to receive prior warning;
...
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(d) the willful violation of known or written work rules;
[or]
(e) conduct unbecoming a state employee that is
detrimental to state service[.]
25 N.C.A.C. 1J .0614(8).
Based on the testimony of Consumer, Ms. Holliday, Dr. Corriher, and even Mr.
Barron – all of which is outlined above – as well as the pictures and texts that were
admitted into evidence, there was “competent, material, and substantial evidence[,]”
See Bashford, 107 N.C. App. at 465, 420 S.E.2d at 468 – if not compelling evidence –
that Mr. Barron (1) touched Consumer sexually without her consent; (2) engaged in
inappropriate text messaging with Consumer; and (3) failed to report at least some
of Consumer’s allegations against him until matters escalated. Id. Accordingly, the
trial court erred by concluding that the ALJ’s decision was “[u]nsupported by
substantial evidence[,]” “[a]rbitrary, capricious, or an abuse of discretion[,]” and that
there was “no rational basis in the evidence” for Eastpointe to dismiss Mr. Barron for
just cause.
VI. Alleged Due Process Violations During the Investigation
Eastpointe contends the trial court erred by reversing the ALJ’s decision and
asserts that Mr. Barron did not establish that his due process rights were violated
during the investigation. Mr. Barron argued to the trial court that his due process
rights had been violated during the investigation, and that, therefore, the ALJ’s
decision should have been reversed because (1) Dr. Corriher allegedly headed up the
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investigation and was biased against him after speaking with Consumer; (2)
Eastpointe’s investigative team was made up of an “untrained, inexperienced group
of females . . . [who] showed bias against” him during the investigation; and (3) he
was “subjected to a ‘hearing’ without proper notice” while the investigation was
ongoing. We conclude that Mr. Barron did not establish that his due process rights
were violated during the investigation.
Career state employees are “entitled to a hearing according with principles of
due process” before being dismissed from their jobs. See Crump v. Bd. of Education,
326 N.C. 603, 614, 392 S.E.2d 579, 584 (1990). “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.” See Kea v. Department of Health & Human
Sevs., 153 N.C. App. 595, 605, 570 S.E.2d 919, 925 (2002), aff'd per curiam, 357 N.C.
654, 588 S.E.2d 467 (2003). “The mere fact [that the person who ultimately
recommends the dismissal of an employee] was familiar with the facts of [the
employee’s] case and acted as investigator and adjudicator on the matter is not a per
se violation of due process.” Id. at 605, 570 S.E.2d at 926. That person may “reach[ ]
conclusions concerning [the employee’s] situation prior to the [pre-dismissal]
conference” when those conclusions are “based on” facts obtained during a thorough
investigation. Id. at 606, 570 S.E.2d at 926.
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A. Dr. Corriher’s Role in the Investigation
In the present case, Mr. Barron argued to the trial court that Dr. Corriher, his
direct supervisor, headed up the investigation and was biased against him after
speaking to Consumer. Mr. Barron also argued that Dr. Corriher was the one who
ultimately recommended that he be dismissed.3 However, Mr. Barron made no
attempt to distinguish Kea from the present case. As in Kea, “[t]he mere fact [that
Dr. Corriher] was familiar with the facts of [Mr. Barron’s] case and acted as
investigator and[,] [perhaps to some extent,] adjudicator on the matter [was] not a
per se violation of due process.” See id. at 605, 570 S.E.2d at 926. Even assuming
arguendo that Dr. Corriher may have come to certain conclusions about Mr. Barron’s
situation before his pre-dismissal conference, Mr. Barron does not assert that those
conclusions were “based on” anything other than the facts Dr. Corriher learned
during her investigation. See id. at 606, 570 S.E.2d at 926. Accordingly, Mr. Barron
had not demonstrated that Dr. Corriher’s fulfilling her role on the investigative team
and possibly recommending his dismissal demonstrated that she “possesse[d] a
disqualifying personal bias” in any way. See id. at 605, 570 S.E.2d at 925.
3 However, both Dr. Corriher and Mr. Barron acknowledged at the hearing that the final
decision to actually dismiss Mr. Barron was made by Mr. Jones, Eastpointe’s CEO. Also, notably,
when asked during the hearing whether Mr. Barron knew if “the recommendation made for [his]
termination [came] from Dr. Corriher [or] Theresa Edmondson[,]” Mr. Barron replied: “Not to my
knowledge.”
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B. The Investigative Team
Mr. Barron also argued to the trial court that Eastpointe’s investigative team
was made up of an “untrained, inexperienced group of females . . . [who] showed bias
against” him during the investigation. As a preliminary matter, it is unclear to this
Court as to who at Eastpointe – other than Dr. Corriher, Eastpointe’s Chief of Clinical
Operations; Ms. Edmiston, Eastpointe’s Director of Corporate Compliance and
Human Resources; and Tashina Raynor, Eastpointe’s Director of Grievance and
Appeals – would have been more qualified to oversee the investigation in the present
case. Notably, Mr. Barron has been silent on that point.
We also do not believe that the investigative team consisting of a “group of
females” necessarily establishes bias in the present case. Mr. Barron presented no
evidence at the hearing that the investigative team used gender-charged language
during the investigation or otherwise showed that the team members’ interactions
with Mr. Barron during the investigation were informed by anything beyond the facts
of the investigation. A person’s gender does not equate to having a disqualifying
personal bias. Without more, Mr. Barron had not established that the investigative
team “possesse[d] a disqualifying personal bias” in any way. See id.
C. The 29 November Meeting
Mr. Barron further argued to the trial court that his due process rights were
violated when he met with the investigative team during the 29 November meeting
to answer questions about the situation involving Consumer. Notably, Mr. Barron
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raised no challenge with the trial court regarding his pre-dismissal conference, or the
notice thereof. Instead, Mr. Barron contended his due process rights were violated
when he was “subjected to a ‘hearing’ without proper notice” when he met with the
investigative team during the 29 November meeting, prior to the pre-dismissal
conference and while the investigation was still ongoing.
However, at the hearing, Mr. Barron testified that Dr. Corriher did, in fact,
notify him of the 29 November meeting and informed him that the purpose of the
meeting was for the investigative team to “hear [his] side” of the situation with
Consumer. Moreover, Mr. Barron has never contended that he was deprived of a
proper pre-dismissal conference before being dismissed from his job. Although Mr.
Barron cited authority in the Memorandum, and in his brief before this Court,
holding generally that career state employees are “entitled to a hearing according
with principles of due process” before being dismissed from their jobs, see, e.g., Crump,
326 N.C. at 614, 392 S.E.2d at 584, he has provided no further authority or
substantive argument suggesting that the 29 November meeting constituted an
additional “hearing” that similarly implicated his due process rights. See id. Mr.
Barron’s argument was without merit.
VII. Notice of Reasons for Dismissal
Eastpointe contends on appeal that the trial court erred by reversing the ALJ’s
decision and asserts it gave Mr. Barron sufficient notice of the reasons for his
dismissal. Mr. Barron argued to the trial court that the ALJ’s decision affirming his
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dismissal from Eastpointe was affected by an error of law because he was given
insufficient notice of the reasons for his dismissal.
In addition to providing that career state employees may only be discharged
for just cause, N.C.G.S. § 126-35(a) requires that
[i]n cases of such disciplinary action, the employee shall,
before the action is taken, be furnished with a statement in
writing setting forth the specific acts or omissions that are
the reasons for the disciplinary action and the employee's
appeal rights.
N.C.G.S § 126-35(a). N.C.G.S § 126-35(a) “establishes a condition precedent that
must be fulfilled by the employer before disciplinary actions are taken.” Leiphart v.
N.C. School of the Arts, 80 N.C. App. 339, 350, 342 S.E.2d 914, 922 (1986).
The purpose of [N.C.G.S. §] 126-35 is to provide the
employee with a written statement of the reasons for his
discharge so that the employee may effectively appeal his
discharge. The statute [also] was designed to prevent the
employer from summarily discharging an employee and
then searching for justifiable reasons for the dismissal.
Id. at 350–51, 342 S.E.2d at 922 (citation omitted). The written notice must be stated
“with sufficient particularity so that the discharged employee will know precisely
what acts or omissions were the basis of his discharge.” Employment Security Comm.
v. Wells, 50 N.C. App. 389, 393, 274 S.E.2d 256, 259 (1981).
The legal question of whether a dismissal letter is “sufficiently particular[,]”
id. (emphasis added), has always been fact-specific. In Wells, 50 N.C. App. at 389,
274 S.E.2d at 257 (1981), the employee was “suspended . . . from his job without pay
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pending an investigation into allegations that [the employee had] violated laws and
petitioner's policies in the performance of his duties.” The employee was
subsequently fired and provided a dismissal letter, stating that the reasons for
dismissal were that the employee:
1. Violated Agency Procedure in attempting to recruit
workers from Florida by phone and personal visit.
2. Required growers to use crew leaders even though
workers were not a part of a crew nor did the crew
leader provide any service for his fee.
3. Forced workers to work for designated crew leader
even though the workers preferred not to work in a
crew. Workers who questioned assignment to a crew
were threatened with loss of job or deportation.
4. Violated Agency Procedure by not reporting illegal
aliens.
Id. at 392–93, 274 S.E.2d at 258–59. “[T]he only information given the [employee]
concerning the reasons for his dismissal was contained in [that] letter of dismissal.”
Id. at 392, 274 S.E.2d at 258. Moreover, the employee subsequently “requested
specific details regarding the four reasons for the dismissal . . . [and] asked for dates
and the names of the individuals involved in these incidents.” Id. at 393, 274 S.E.2d
at 259. The state refused to provide the employee with that information. Id.
Accordingly, this Court noted that the dismissal letter gave the employee “no way . . .
to locate [the] alleged violations in time or place, or to connect them with any person
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or group of persons” and held that the employee received insufficient notice in the
dismissal letter under N.C.G.S. § 126-35(a). Id. at 393, 274 S.E.2d at 259.
Similarly, in Owen v. UNC-G Physical Plant, 121 N.C. App. 682, 684, 468
S.E.2d 813, 815 (1996), an employee was accused of making race-based and sex-based
derogatory comments to a number of her fellow employees. She also was accused of
“intimidat[ing] [other] employees and threaten[ing] reprisals if they persisted in
complaining about [her] conduct.” Id. Although the employee was given a pre-
dismissal conference, the dismissal letter “fail[ed] to include the specific names of [the
employee’s numerous] accusers in her dismissal letter[.]” Id. at 687, 468 S.E.2d at
817 (emphasis added). Specifically, the employee’s dismissal letter stated the
following grounds for dismissal:
First, I have found that while employees were working on
a concrete job outside of Jackson Library in the last part of
June you told a black employee, “If I was a black man, I
would like to do this kind of work all day long.” This
statement . . . was a racial, and sex-based slur . . . [and] is
especially serious because it is a message to employees,
from their supervisor, that work in the Grounds Division is
assigned based on race and sex. . . . On other occasions,
you have made comments such as “no man will ever meet
my standards” and you have called employees “stupid.”
Second, after learning that employees had complained to
the management and to Human Resources about your
conduct, you began to talk with employees to discourage
pursuit of their complaints. Specifically, you distributed to
three employees copies of discipline and notes about
discipline you received last August. . . . You have also told
employees, “If I go, I will take others with me.” Such
statements and actions constitute attempts to intimidate
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employees and threatened reprisals if they persisted in
complaining about your conduct.
Id. at 684, 468 S.E.2d at 815. Based on the facts in Owen, this Court concluded the
employee “was unable, at least initially, to correctly locate in ‘time or place’ the
conduct which [the employer] cited as justification for her dismissal.” Id. at 687, 468
S.E.2d at 817. Accordingly, we held that the employee’s dismissal letter lacked
“sufficient particularity . . . [and, therefore,] render[ed] the statement of reasons
contained in the dismissal letter statutorily infirm” under N.C.G.S. § 126-35(a). Id.
at 687–88, 468 S.E.2d at 817.4
However, in Leiphart, 80 N.C. App. at 351, 342 S.E.2d at 923, the employee
was dismissed for “personal misconduct[.]” Specifically, the employee’s dismissal
letter stated that the employee was dismissed for a single act: his “leadership role in
4 Mr. Barron also relies heavily on Leak v. N.C. Dep't of Pub. Instruction, 176 N.C. App. 190,
625 S.E.2d 918 (2006) (unpublished), in his brief to support his position that the dismissal letter
provided insufficient notice of the reasons for his dismissal. However, unpublished cases, such as
Leak, are reported pursuant to Rule 30(e) of the North Carolina Rules of Appellate Procedure. As
noted by Evans v. Conwood, LLC, 199 N.C. App. 480, 490–91, 681 S.E.2d 833, 840 (2009),
[t]his rule provides that citation of unpublished opinions is disfavored.
Such an opinion may be cited if a party believes that it has precedential
value to a material issue in the case, and there is no published opinion
that would serve as well. When an unpublished opinion is cited,
counsel must do two things: (1) they must indicate the opinion's
unpublished status; and (2) they must serve a copy of the opinion on
all other parties to the case and on the court.
Id. (citation and quotation marks omitted). In the present case, counsel did neither of these things.
“This conduct was a violation of the Rules of Appellate Procedure. In our discretion, we hold that this
conduct was not a gross violation of the Rules of Appellate Procedure meriting the imposition of
sanctions. However, counsel is admonished to exercise greater care in the future citation of
unpublished opinions.” See id.
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assembling the meeting of October [21], 1983, in [his supervisor’s] office. . . .” Id. We
held that the dismissal letter’s notice of this single, specific act was “sufficient[ly]
particular[ ]” and that the employee “was clearly notified of the specific act which led
to his dismissal.” Id. at 351–52, 342 S.E.2d at 923.
In Nix v. Dept. of Administration, 106 N.C. App. 664, 667, 417 S.E.2d 823, 826
(1992), the employee’s dismissal letter stated generally that he “was being terminated
because he ‘had not been performing at the level expected by [his] position
classification,’ [ ] because there had been no ‘marked improvement’ ” in his job
performance, and because he had exhausted his vacation and sick leave. The
employee also had received previous “oral and . . . written warnings” for his
unacceptable performance. Id. Accordingly, we held that the dismissal letter was
“sufficiently specific[,] . . . since [the employee] was already on notice due to the
previous two warnings that he was not performing at the expected level.” Id. (citing
Leiphart, 80 N.C. App. at 351, 342 S.E.2d at 922); accord Skinner, 154 N.C. App. at
280, 572 S.E.2d at 191 (affirming an employee’s demotion where “he received two
detailed written warning letters, as well as a notice of the pre-demotion conference
outlining the specific grounds for the proposed disciplinary action.”).
In Mankes v. N.C. State Educ. Assistance Auth., 191 N.C. App. 611, 664 S.E.2d
79, slip op. at 6 (2008) (unpublished), the employee was dismissed for “unacceptable
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personal conduct as well as unsatisfactory performance” in her job. Her dismissal
letter stated the following grounds for dismissal:
(1) Not following designated procedures regarding the
prohibition of printing and photocopying of borrower
computer records, and the resulting[ ] improper use
of those hardcopy records.
(2) Not working your assigned tickler accounts
accurately.
(3) Not making adequate, documented telephone calls
to borrowers.
(4) Improperly working borrower accounts that have
not been assigned to you.
(5) Not following designated procedures regarding
letter requests for borrowers applying for total and
permanent disability discharges.
(6) Not following designated procedures regarding the
prohibition against the recording of borrower Social
Security Numbers in your personal, unauthorized
work journal.
Id., slip op. at 6–7. On appeal, the employee argued that the grounds stated in her
dismissal letter were “vague criticisms” and, therefore, were not “sufficiently
particular” for the purposes of N.C.G.S. § 126-35(a) under this Court’s holdings in
Wells and Owen. Id., slip op. at 7–8. This Court concluded, however, that Wells and
Owen were distinguishable from Mankes. Id. With regard to Wells, we noted that
the only notice the employee had as to the reasons for his
dismissal were those in the letter; he received no earlier
written or oral notice of the unacceptable conduct. Second,
the employee in Wells requested that such specific
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information be provided, and the state refused to provide
it. In the case at hand, petitioner was given notice both in
writing and orally prior to this letter of dismissal, and
specific instances of the complained-of conduct were
provided at an earlier meeting.
Id. (citations omitted). With regard to Owen, we noted that
both [grounds for dismissal in the employee’s dismissal
letter] made reference to accusations made by “employees”:
“[E]mployees had complained[,]” “you began to talk with
employees[,]” “[y]ou have also told employees,” “attempts
to intimidate employees[,]” etc. This Court noted that “not
a single allegation specifically named her accuser[,]”
preventing her from identifying the incidents at issue, and
therefore from preparing an appropriate defense. There,
however, the only reasons justifying the employee’s
dismissal related to her conduct toward other employees;
the identity of those individuals was therefore a vital piece
of information. In the case at hand, the reasons given for
petitioner’s dismissal were her own conduct, specific
examples of which were given to petitioner by [her
supervisor].
Id., slip op. at 8 (citations omitted) (emphasis added). Accordingly, we held that the
employee received sufficient notice of the reasons for her dismissal under N.C.G.S. §
126-35(a). Id., slip op. at 8–9.
Finally, in Follum v. N.C. State Univ., 204 N.C. App. 369, 696 S.E.2d 203, slip
op. at 11–12 (2010) (unpublished), an employee’s dismissal letter stated that the
employee “behaved inappropriately [at a 7 March 2007 meeting,] . . . refused to allow
the participants – including the dean of the school – to collaborate during the
meeting[,] . . . [and was] disrespectful by repeatedly interrupting others, not allowing
attendees to complete their statements and dismissing advice that was offered.” The
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employee contested his dismissal and – relying on this Court’s holding in Wells –
contended his “letter of dismissal did not allege specific acts or omissions” that formed
the basis for his dismissal. Id., slip op. at 10 (quotation marks omitted). On appeal,
we held the employee’s dismissal letter satisfied the notice requirements of N.C.G.S.
§ 126-35(a), in part, because the dismissal letter “identified [the employee’s] conduct
toward a small group of people in attendance on a specific date at a particular
meeting.” Id., slip op. at 12.
In the present case, some of the stated grounds for Mr. Barron’s dismissal are
more analogous to Leiphart, Nix, Mankes, and Follum than they are to Wells and
Owen. The record shows that Dr. Corriher discussed with Mr. Barron the nature of
all of the allegations against him multiple times and that Mr. Barron participated in
the 29 November meeting and in his pre-dismissal conference. The investigative
status letter given to Mr. Barron stated, in part, that
[t]he reports of unacceptable conduct resulting in your
being placed in Investigatory Status with pay are:
1. Allegations of inappropriate relationship with a
consumer[.]
2. Not reporting these allegations to your supervisor in
a timely manner.
Mr. Barron’s pre-dismissal notice stated that
[t]he findings of the investigative team [were] as follows:
1. A consumer of housing services (“Consumer”) has
made accusations of inappropriate conduct by you.
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This accusation of inappropriate conduct included
speaking [to] and touching her in an inappropriate
manner, promising her living room furniture, [and]
communicating with her through text messaging on
your personal cell phone.
...
4. By your own admission you learned on August 29,
2012 from a co-worker that [ ] Consumer was making
accusations about your inappropriate personal
conduct towards her. Further, you did not report this
fact to your [supervisor] until [November] 5, 2012.
...
6. Based on text messages you presented to
management, you engaged in unprofessional and
inappropriate communication with [ ] Consumer.
Mr. Barron’s dismissal letter stated that the grounds for his dismissal were as
follows:
1. A consumer of housing services made accusations of
inappropriate conduct by you.
2. You confirmed you communicated with this consumer
on your personal cell phone[,] . . . [and] [i]t was
determined that some of the communications were not
work related or professional.
3. That you learned on August 29, 2012 from a co-worker
that this consumer was making accusations about you
exhibiting inappropriate personal contact towards her,
but did not report this to your supervisor until
[November] 5, 2012.
...
6. You inappropriately asked this consumer for a picture,
which was sent, and received by you.
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Regarding ground 2 in the dismissal letter, it was Mr. Barron who first
reported the text message communications to Dr. Corriher and then delivered them
during the 5 November meeting. Unlike in Wells, he was given numerous forms of
written and oral notice pertaining to the troubling nature of those text messages
before being dismissed; he participated in Eastpointe’s month-and-a-half-long
investigation into, inter alia, the nature of those text messages; and he fully
participated in his pre-dismissal conference, during which all of the grounds that
were to be in the dismissal letter were discussed – and all of which centered on a
single chain of events between Mr. Barron and Consumer. Cf. Leiphart, 80 N.C. App.
at 351, 342 S.E.2d at 923; Follum, slip op. at 11–12. Ground 2, specifically, states
that Mr. Barron “confirmed” he communicated with a consumer on his personal phone
and that “[i]t was determined that some of the communications were not work related
or professional.” Mr. Barron’s pre-dismissal notice further reveals that some of those
communications were “text messages” that Mr. Barron provided himself. As in
Leiphart, Mankes and Fullum, ground 2 is not based on broad accusations by
numerous employees, as it was in Owen, but rather on determining the
inappropriateness of Mr. Barron’s “own conduct” to which Mr. Barron has admitted.
See Mankes, slip op. at 8; see also Leiphart, 80 N.C. App. at 351, 342 S.E.2d at 923;
Follum, slip op. at 11–12.
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Although this Court has held previously that the notice requirements of
N.C.G.S. § 126-35(a) are generally “prophylactic” in nature, see Owen, 121 N.C. App.
at 687, 468 S.E.2d at 817, Mr. Barron’s proffered reading of N.C.G.S. § 126-35(a)
would “exalt form over substance[,]” see White v. Weyerhaeuser Co., 167 N.C. App.
658, 667, 606 S.E.2d 389, 396 (2005). In light of the robust defense Mr. Barron has
been able to wage at all points since his dismissal, his full participation in the
investigation, the numerous instances of oral and written notice provided to Mr.
Barron, the isolated nature of the allegation, and given that the language in ground 2
is limited to determining the inappropriate nature of specific conduct admitted to by
Mr. Barron, it would “strain credulity[,]” State v. Locklear, 7 N.C. App. 493, 496, 172
S.E.2d 924, 927 (1970), for this Court to hold that ground 2 was not “described with
sufficient particularity” so that Mr. Barron would “know precisely what acts or
omissions were the basis of his discharge” upon receipt of his dismissal letter. See
Wells, 50 N.C. App. at 393, 274 S.E.2d at 259 (emphasis added); see also Nix, 106 N.C.
App. at 667, 417 S.E.2d at 826; Leiphart, 80 N.C. App. at 350–51, 342 S.E.2d at 922
(“The purpose of [N.C.G.S. §] 126-35 is to provide the employee with a written
statement of the reasons for his discharge so that the employee may effectively appeal
his discharge . . . [and so] the employer [cannot] summarily discharg[e] an employee
and then search[ ] for justifiable reasons for the dismissal.” (emphasis added));
Mankes, slip op. at 8; Follum, slip op. at 11–12. Mr. Barron “was clearly notified of
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the specific act[s] which led to his dismissal . . . [under ground 2, and] [h]e is entitled
to no relief on this basis.” See Leiphart, 80 N.C. App. at 352, 342 S.E.2d at 923.
Similarly, ground 3 in the dismissal letter states that Mr. Barron “learned on
August 29, 2012 from a co-worker that [a] consumer was making accusations about
[him] exhibiting inappropriate personal contact towards her, but did not report this
to [his] supervisor until [November] 5, 2012.” We find this analogous to some of the
stated grounds for dismissal in Mankes – that the employee was “[n]ot following
designated procedures[.]” Mankes, slip op. at 6–7. Eastpointe had specific, written
procedures for handling any consumer complaints that could not be immediately
resolved; those procedures required formal documentation of the complaint and
reporting it up the chain of command. See supra, footnote 2. Mr. Barron has never
disputed that he became aware on 29 August 2012 of an unresolved complaint by
Consumer regarding his conduct towards her and that he did not report that
complaint to Dr. Corriher, his only direct “supervisor[,]” let alone anyone else, for over
two months.5 For similar reasons stated above, we find that ground 3 in Mr. Barron’s
dismissal letter also provided him notice of “sufficient particularity . . . of the specific
5 Mr. Barron’s job description in the record expressly states that Dr. Corriher was Mr. Barron’s
only direct supervisor and provides that the role of Eastpointe’s Housing Director was to “provide[ ]
direction in the development of affordable housing for special needs populations . . . [u]nder minimal
supervision of the Chief of Clinical Operations[.]”
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act [or omission] which led to his dismissal” on that ground. See Leiphart, 80 N.C.
App. at 351–52, 342 S.E.2d at 923.6
For all the foregoing reasons, we believe that the present case is
distinguishable from Wells and Owen and analogous to Leiphart, Nix, Mankes, and
Follum, particularly with respect to grounds 2 and 3 in Mr. Barron’s dismissal letter.
Because Mr. Barron received sufficient notice under N.C.G.S. § 126-35(a) as to those
grounds for his dismissal from Eastpointe, the order of the trial court is reversed.
REVERSED.
Judges ELMORE and INMAN concur.
6 Because we hold that Mr. Barron received sufficient notice of the reasons for his dismissal
under grounds 2 and 3 in the dismissal letter, and we believe those grounds provided Eastpointe with
sufficient just cause to dismiss Mr. Barron, we need not review whether Mr. Barron received sufficient
notice under grounds 1 and 6 in the dismissal letter. See generally 25 N.C.A.C. 1J .0614(8) (defining
“[u]nacceptable [p]ersonal [c]onduct” that establishes just cause for dismissal as “conduct for which no
reasonable person should expect to receive prior warning; . . . the willful violation of known or written
work rules; . . . [or] conduct unbecoming a state employee that is detrimental to state service[.]”).
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