N.C. Dep't of Corr. v. Parker ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1008
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
NORTH CAROLINA DEPARTMENT OF
CORRECTION,
Petitioner
(Respondent below),
v. Wake County
No. 12 CVS 002136
VIVIAN PARKER,
Respondent
(Petitioner below).
Appeal by respondent from order entered 14 May 2013 by
Judge Howard E. Manning, Jr. in Wake County Superior Court.
Heard in the Court of Appeals 23 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Yvonne B. Ricci, for petitioner-appellee.
Monteith & Rice, PLLC, by Charles E. Monteith, Jr. and
Shelli Henderson Rice, for respondent-appellant.
HUNTER, JR., Robert N., Judge.
Vivian Parker (“Respondent” or “Parker”) appeals from the
14 May 2013 order upholding the State’s dismissal of her from
employment with the North Carolina Department of Correction
(“DOC”). Respondent argues that DOC did not have just cause to
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dismiss her from employment. We disagree and affirm the order
of the superior court.
I. Facts & Procedural History
On 28 October 2010, Parker filed a Petition for a Contested
Hearing with the Office of Administrative Hearings (“OAH”)
alleging that DOC wrongfully discharged her without cause. The
OAH held a hearing on 8 June 2011. Evidence presented at that
hearing tended to show the following.
Parker began working for DOC in October 2000 as a
correctional officer at Pender Correctional Institution. Parker
was promoted to correctional sergeant after two years and was
promoted again in September 2008 to correctional lieutenant, the
position she held at the time of her dismissal.
On 27 April 2010, Parker lived at 724 Ivey Street in
Wallace. Her adult son, Brandon Huffin (“Brandon”), was on
probation, and his address of record was Parker’s home at 724
Ivey Street.
Michael Moready (“Officer Moready”), a surveillance officer
for DOC, received complaints about drug activity in the area and
on 27 April 2010, he went to 724 Ivey Street to conduct a
warrantless search of what he believed to be Brandon’s
residence. When Officer Moready arrived at the house, Brandon
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was in the yard. When Brandon asserted that 724 Ivey Street was
not his residence, Officer Moready called back to his office to
verify that 724 Ivey Street was listed as Brandon’s residence of
record, which it was. Michael Glen Tyndall (“Detective
Tyndall”), a detective for the Duplin County Sheriff’s Office,
arrived at the scene as Officer Moready was talking with
Brandon.
When Brandon refused to let officers into the house,
Officer Moready let him know he would be arrested and handcuffed
him. Parker then came out of the house, where Officer Moready
explained his presence. Parker told Officer Moready that the
house was not Brandon’s residence. Officers described Parker as
confrontational and uncooperative in denying that the house was
Brandon’s residence.
After Officer Moready explained to Parker that 724 Ivey
Street was Brandon’s address of record and that the probation
office had not been notified of any change in residence, Parker
said that Brandon did live at her house “sporadically.” Parker
then agreed to let officers come into the living room area,
where she said Brandon slept when he was at the house.
Jason Douglas Debose (“Detective Debose”), a detective for
the Duplin County Sheriff’s Office, went into the house with
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Parker and Detective Tyndall. Parker pointed out the couch
where Brandon slept when he stayed there. While inside the
house, Detective Tyndall smelled marijuana, although Detective
Debose said he could not smell it. After Detective Tyndall
stated that he smelled marijuana, Parker told them to stop the
search and said that they “would have to get a warrant if [they]
wanted to continue.”
While they waited for the warrant, Parker asked to go back
into the house. Detectives Debose and Tyndall had to tell
Parker several times that she could not go back into the house,
and she was “very, very adamant about going into the house.”
Tommy Huffin (“Tommy”), Parker’s brother, showed up in the
yard at the house and took photos of officers with his cell
phone. Tommy pointed the phone at Detective Debose’s face, and
Detective Debose took the phone from him. Tommy insisted that
Detective Debose give his phone back. When Parker saw the
confrontation, she told Tommy to “shut up.” Tommy reached
toward his waistline, and Detective Debose pulled his gun.
Detective Tyndall then handcuffed Tommy. Detective Tyndall
ordered everyone at the scene, including Parker, to be placed in
handcuffs for safety reasons.
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After obtaining the warrant, officers searched the house
and found marijuana and drug paraphernalia in a bedroom along
with documentation such as release orders, a bank card, and
clothes in a rear bedroom. Based on this evidence officers
concluded that Brandon stayed there. In Parker’s room, officers
found a stolen revolver between the mattresses. In the
backyard, officers found a pound of marijuana beside a storage
shed.
Parker was charged with resisting arrest, possession of
marijuana, possession of a stolen firearm, and maintaining a
dwelling for controlled substances. She pled no contest to
maintaining a dwelling on 13 April 2011, and the other charges
were dismissed.
Parker notified her superior at DOC of her charges the same
day she was arrested. Ricky Reagan Rivenbark (“Mr. Rivenbark”),
Assistant Superintendent of Custody and Operations for Pender
Correctional assigned Robert Lynn Norville (“Captain Norville”),
Correctional Captain in charge of Special Operations at Pender
Correctional, to conduct the investigation into Parker’s
conduct. After investigation, Captain Norville concluded that
Parker “was belligerent when they were trying to do a search
warrant with her son at that residence. [Her actions] were
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unbecoming of a state employee which . . . led to us feeling it
was unacceptable personal conduct.”
Mr. Rivenbark recommended to the Superintendent that Parker
be dismissed for “actions and behavior . . . unbecoming of a
state employee and . . . detrimental to state service.”
Specifically, Mr. Rivenbark noted that Parker was uncooperative
and belligerent with law enforcement officers. At the OAH
hearing, Mr. Rivenbark testified that although the criminal
charges against Parker were not the reason for his
recommendation, they did cause him to lose trust in her. DOC
dismissed Parker on 25 June 2010.
At the OAH hearing, Parker testified on her own behalf and
presented the testimony of her husband, Bobby Gene Parker
(“Bobby”), and her mother, Vianne Pigford Newkirk (“Newkirk”).
Parker testified that Brandon was not living with her on 27
April 2010. When asked about Brandon’s mail and clothing that
were found in a bedroom, Parker testified that there was
clothing and mail in the house from many of her children who did
not live there because “[i]t’s a family house, and . . . they
come there . . . and leave something and then leave.” Newkirk
testified that on that date, Brandon was living with her at 726
Bray Street.
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Parker testified that she never revoked her consent to
search the house and that she never told the officers that they
would need a warrant to continue. She said that she asked to go
back into the house in order to get her clothes to go to work.
Parker testified that she did not know about the guns or
marijuana in the house. She testified that she pled no contest
to maintaining a dwelling because she was advised that she could
be found guilty of the charge even if she did not know the
marijuana was on her property.
Bobby, who was not living with Parker at the time and did
not arrive on 27 April 2010 until after everyone had been
handcuffed, testified that he also had no knowledge of the guns
or marijuana in the house. Newkirk testified that the stolen
revolver had been her husband’s gun and that she had put it
between Parker’s mattresses without Parker’s knowledge.
On 26 September 2011, Administrative Law Judge Joe L.
Webster filed a decision finding that DOC had not carried its
burden of proof that Parker’s conduct was “just cause” for
termination and that even if it was “just cause,” DOC should not
have terminated Parker, but should have disciplined her in other
ways, recommending a 30-day suspension and training for Parker.
In his decision, Judge Webster found the following fact: “40. On
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April 13, 2011, [Parker] pled no contest [to] misdemeanor
maintain[ing a] vehicle/dwelling/place for controlled
substance[s].” On 13 January 2012, the State Personnel
Commission adopted Judge Webster’s decision.
On 13 February 2012, DOC filed a petition for judicial
review with the Wake County Superior Court. On 14 May 2013, the
Wake County Superior Court, Judge Howard E. Manning, Jr.
presiding, issued its order reversing the decision of the State
Personnel Commission and upholding Parker’s dismissal. The
court found that “applying the whole record test, . . . Finding
of Fact No. 40 . . . in the Decision and Order of the State
Personnel Commission, was supported by the substantial evidence
of record and was not arbitrary or capricious.” The court went
on to state that
it is undisputed that [Parker] pled no
contest to misdemeanor maintain[ing a]
vehicle/dwelling/place for controlled
substance[s]. However, because of Ms.
Parker’s position as a Lieutenant for the
NCDOC there is a clear nexus between the
drug related offense to which she
undisputedly plead no contest and her
position of trust and authority as a
correctional lieutenant. Further, Parker’s
no contest plea to this drug related offense
is sufficient to justify her dismissal for
unacceptable personal conduct and is
supported by the substantial evidence of
record and just cause.
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Parker filed timely notice of appeal on 13 June 2013.
II. Jurisdiction & Standard of Review
Respondent’s appeal from the superior court’s final
judgment lies of right to this Court. N.C. Gen. Stat. § 7A-
27(b) (2013).
“When reviewing a superior court order concerning an agency
decision, we examine the order for errors of law.” Warren v.
N.C. Dep’t of Crime Control & Pub. Safety, ___ N.C. App. ___,
___, 726 S.E.2d 920, 922 (2012). “The process has been
described as a twofold task: (1) determining whether the trial
court exercised the appropriate scope of review and, if
appropriate, (2) deciding whether the court did so properly.”
Amanini v. N.C. Dep’t of Human Res., 114 N.C. App. 668, 675, 443
S.E.2d 114, 118–19 (1994). We review whether conduct
constituted just cause for dismissal de novo. Warren, ___ N.C.
App. at ___, 726 S.E.2d at 923.
The superior court may reverse or modify the decision of an
agency if
the findings, inferences, conclusions, or
decisions are:
(1) In violation of constitutional
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency or administrative
law judge;
(3) Made upon unlawful procedure;
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(4) Affected by other error of law;
(5) Unsupported by substantial evidence . .
. in view of the entire record as submitted;
or
(6) Arbitrary, capricious, or an abuse of
discretion.
N.C. Gen. Stat. § 150B-51(b) (2013). For subdivisions (1)
through (4), the court uses a de novo standard of review. N.C.
Gen. Stat. § 150B-51(c). For subdivisions (5) and (6), the
court uses a whole record standard. Id.
In the present case, the superior court applied the whole
record test in finding that Finding of Fact No. 40 from the
State Personnel Commission decision was supported by substantial
evidence of record and was not arbitrary or capricious. See
N.C. Gen. Stat. §§ 150B-51(b)(5), (6). It then applied de novo
review in reviewing the errors of law. See N.C. Gen. Stat. §§
150B-51(b)(1)–(4). As the superior court used the appropriate
standards, we will focus our analysis on the question of whether
it applied those standards properly. See N.C. Gen. Stat. §
150B-51(c); Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118–19.
III. Analysis
Parker argues that the superior court erred in concluding
that DOC had just cause to dismiss her from employment. We
disagree.
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No career State employee subject to the N.C. State Human
Resources Act may be dismissed from employment unless it is with
just cause. N.C. Gen. Stat. § 126-35(a) (2013). It is
undisputed that Parker was a career State employee who could not
be dismissed without just cause. “Unacceptable personal
conduct” is a basis for dismissal under the just cause standard.
25 N.C. Admin. Code 1J.0604 (2012).
There are three questions in determining whether a State
agency had just cause to discipline an employee: “(1) whether
the employee engaged in the conduct the employer alleges; (2)
whether the employee’s conduct falls within one of the
categories of unacceptable personal conduct provided by the
North Carolina Administrative Code; and (3) whether that
unacceptable personal conduct amounted to just cause for the
disciplinary action taken.” Bulloch v. N.C. Dep’t of Crime
Control & Pub. Safety, ___ N.C. App. ___, ___, 732 S.E.2d 373,
377 (2012) (citing Warren, ___ N.C. App. at ___, 726 S.E.2d at
925).
The first question is whether Parker engaged in the conduct
alleged. The superior court on review found that Finding of
Fact No. 40 of the State Personnel Commission’s decision was
supported by substantial evidence and was not arbitrary or
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capricious. That finding stated, “On April 13, 2011, [Parker]
pled no contest [to] misdemeanor maintain[ing a]
vehicle/dwelling/place for controlled substance[s].” Parker
admitted in the hearing that she had pled no contest to
maintaining a dwelling, and a certified copy of the disposition
of that charge was introduced. See N.C. Gen. Stat. § 15A-
1022(c) (2013) (requiring a factual basis for a no contest
plea). At the hearing, officers testified that both drug
paraphernalia and marijuana were found in and around Parker’s
home. These facts are sufficient to show that Parker engaged in
maintaining a dwelling for controlled substances.
The next question is whether Parker’s maintenance of a
dwelling for controlled substances constitutes “unacceptable
personal conduct.” As defined by the N.C. Administrative Code,
“unacceptable personal conduct” includes
(a) conduct for which no reasonable person
should expect to receive prior warning;
(b) job-related conduct which constitutes a
violation of state or federal law;
(c) conviction of a felony or an offense
involving moral turpitude that is
detrimental to or impacts the employee’s
service to the State;
(d) the willful violation of known or
written work rules;
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(e) conduct unbecoming a state employee that
is detrimental to state service;
(f) the abuse of client(s), patient(s),
student(s) or a person(s) over whom the
employee has charge or to whom the employee
has a responsibility or an animal owned by
the State;
(g) absence from work after all authorized
leave credits and benefits have been
exhausted; or
(h) falsification of a state application or
in other employment documentation.
25 N.C. Admin. Code 1J.0614 (2012).
The DOC Personnel Manual lists examples of unacceptable
personal conduct, including “[a]ctions which could result in a
conviction of a felony, misdemeanor, or alcohol/drug related
offense including DWI,” “[f]ailure to cooperate with Federal,
State, Local, or Departmental officials or hindering
internal/external investigations,” and “[v]iolations of law.”
The Alcohol/Drug-Free Work Place Policy as laid out in the
Personnel Manual states the following:
Possession of an illegal substance in any
situation, at work or away from the work
site shall be cause for discipline.
Possession of controlled substances, ie.
Prescription medication or alcohol, must be
in compliance with existing laws.
Violations will result in discipline up to
and including dismissal based on personal
misconduct.
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Employees who are arrested, detained, or
served a warrant for any alcohol/drug
related incident, at the work site or away
from the work site have 24 hours to file a
written report of the situation with the
work unit supervisor/manager, i.e. Warden,
Superintendent, Judicial District Manager,
etc. The work unit supervisor/manager shall
make a recommendation for appropriate
disciplinary action based on the facts of
the case after conducting a thorough
investigation.
Since Parker’s actions did result in a conviction of a
drug-related misdemeanor, it is clear that her actions
constituted “unacceptable personal conduct” under DOC rules and
the Administrative Code. We now turn to the third question of
whether Parker’s actions provided just cause for dismissal.
“[W]here an employee has engaged in off-duty criminal
conduct, the agency need not show actual harm to its interests
to demonstrate just cause for an employee’s dismissal.” Eury v.
N.C. Emp’t Sec. Comm’n, 115 N.C. App. 590, 611, 446 S.E.2d 383,
395 (1994). Rather, “the agency must demonstrate that the
dismissal is supported by the existence of a rational nexus
between the type of criminal conduct committed and the potential
adverse impact on the employee’s future ability to perform for
the agency.” Id. at 611, 446 S.E.2d at 395–96. Factors
considered in determining whether a rational nexus exists are:
[1] the degree to which, if any, the conduct
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may have adversely affected clients or
colleagues;
[2] the relationship between the type of
work performed by the employee for the
agency and the type of criminal conduct
committed;
[3] the likelihood of recurrence of the
questioned conduct and the degree to which
the conduct may affect work performance,
work quality, and the agency’s good will and
interests;
[4] the proximity or remoteness in time of
the conduct to the commencement of the
disciplinary proceedings;
[5] the extenuating or aggravating
circumstances, if any, surrounding the
conduct;
[6] the blameworthiness or praiseworthiness
of the motives resulting in the conduct; and
[7] the presence or absence of any relevant
factors in mitigation.
Id. at 611, 446 S.E.2d at 396.
Parker argues that DOC failed to show a rational nexus
between Parker’s criminal charge and her employment,
particularly because Correctional Administrator Michael Bell
(“Bell”), who made the decision to dismiss Parker, did not
testify at the hearing.
We have found no authority for the proposition that the
decision maker must testify in order to establish a rational
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nexus. In the present case, the superior court held “there is a
clear nexus between the drug related offense to which [Parker]
undisputedly plead no contest and her position of trust and
authority as a correctional lieutenant.”
Mr. Rivenbark indicated in his testimony that the fact that
drugs were found in Parker’s home was one of the factors that
caused him to lose trust in Parker. He said that DOC has a
drug-free policy and that they have had a problem with staff
bringing drugs into Pender Correctional. He said that they
trust the lieutenants and captains to enforce the rules and
search staff as they come in. Parker’s employment records
indicate that as a part of the drug task force team, she was
involved in searching staff entering the facility.
In the letter from DOC to Parker informing her of her
dismissal, Bell quoted the Drug-Free Work Place Policy and
listed the criminal charges against Parker before coming to the
conclusion that Parker’s actions constituted unacceptable
personal conduct sufficient to warrant dismissal. The letter
noted that “[Parker’s] actions have the potential to bring
discredit to the Department.” Given Parker’s duties as a
lieutenant, including searching staff for drugs being brought
into the facility, Mr. Rivenbark’s testimony and the letter from
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DOC show a rational nexus between the presence of drugs at
Parker’s home and DOC’s loss of trust in her ability to perform
her job duties. This close relationship between Parker’s
actions and her inability to continue in employment with DOC
provided just cause for her dismissal.
Although Parker argues that she was not dismissed because
of the criminal charges, but based on her lack of cooperation
with officers, both Mr. Rivenbark’s testimony and the letter
from DOC indicate that the drugs and drug paraphernalia found at
Parker’s house were part of the basis for her dismissal. As we
agree with the superior court that this alone was just cause for
dismissal, there is no need to review other allegations.
IV. Conclusion
For the foregoing reasons, the decision of the superior
court is
AFFIRMED.
Judges STROUD and DILLON concur.
Report per Rule 30(e).