SCOTLAND COUNTY SCHOOLS v. Locklear , 197 N.C. App. 193 ( 2009 )

STROUD, Judge,

concurring in part, dissenting in part.

As to the first issue regarding N.C. Gen. Stat. § 96-14(2b) being the controlling statute, I concur with the majority opinion. As to the second issue regarding the findings under N.C. Gen. Stat. § 96-14(2b), I agree with the majority opinion that this case should be remanded to the Commission for additional findings of fact as to “[t]he status of claimant’s provisional license and its relationship to a full license,” but I write separately because I disagree that additional findings are needed as to whether claimant’s failure to procure the full license required for her continued employment was within her “power to control, guard against, or prevent.” Thus, as to the second issue I concur in part and dissent in part.

As noted by the majority, the Commission made a finding of fact number 5 which reads, “The claimant took all training classes, etc. offered to prepare for the test, and she took the test on several occasions. The claimant was unable to pass the test.” I would hold that this finding of fact provides a sufficient basis for the Superior Court’s conclusion of law number 5, which concludes in pertinent part that achieving a “passing score upon the PRAXIS n examination . . . was within her power to control, guard against or prevent.”

The evidence before the Commission and its findings of fact clearly establish that the claimant prepared for and took the PRAXIS test on several occasions, but did not pass it. Thus, the relevant question is whether passing the PRAXIS test is a matter that was within claimant’s “power to control,” or, stated negatively, if failing the test was something claimant could “guard against, or prevent.” N.C. Gen. Stat. § 96-14(2b) (2007). In the context of this case, only the question of claimant’s “power to control” her performance on the test is applicable. The Commission argues that passing the required test was not within claimant’s “power to control” simply because she was unable to pass the test despite proper preparation. I disagree.

Under these facts, passing the test was under claimant’s “power to control[;]” id., the fact that she did not pass does not eliminate claimant’s “power” to control this requirement. Certainly there could be a factual situation where passing a test required to obtain or retain a professional license was somehow rendered beyond a claimant’s “power to control[.]” See id. For example, a claimant may have taken a required test, but due to errors within the test itself or in scoring the test, both clearly beyond the claimant’s control, the test results were delayed or voided, and as a result the claimant lost the job for which the test was required. Here, where the claimant took the required test, and there is no indication of any problem other than the claimant’s inability to pass, achieving a passing score on the test is, as a matter of law, within her “power to control.” Id. I would hold that the superior court properly made this conclusion of law.

The only findings of fact lacking in the Commission’s order are those relating to the details of claimant’s provisional teaching license and its relation to her full license. As to the second issue, I therefore concur in remanding to the superior cpurt for further remand to the Commission for additional findings regarding the licensing process only. I also thus concur in vacating conclusion of law number 6 and the decretal portion of the trial court’s order. I dissent in remanding for additional findings as to whether the claimant’s failure to procure her full license as required for continued employment was within her “power to control, guard against, or prevent,” see id., and I would affirm the ruling of the superior court as to this issue. I also therefore dissent in vacating finding of fact number 5.