Cole v. N.C. Dep't of Pub. Safety

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-340
Filed: 2 May 2017
Office of Administrative Hearings, No. 15 OSP 05867
RANDALL COLE, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Respondent.
Appeal by Respondent from final decision entered 9 February 2016 by
Administrative Law Judge Donald W. Overby in the Office of Administrative
Hearings. Heard in the Court of Appeals 17 October 2016.
John C. Hunter for Petitioner.
Attorney General Joshua H. Stein, by Assistant Attorney General Tamika L.
Henderson, for Respondent.
McGEE, Chief Judge.
The North Carolina Department of Public Safety (“Respondent”) appeals from
a final decision of the Office of Administrative Hearings (“OAH”) concluding as a
matter of law that Respondent lacked just cause to dismiss Randall Cole (“Petitioner”)
from his position as a laundry plant manager, and ordering that he be retroactively
reinstated but demoted. We conclude Respondent had just cause to dismiss
Petitioner and, therefore, reverse the final decision of OAH.
I. Background
COLE V. N.C. DEP’T OF PUB. SAFETY
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Petitioner worked for Respondent as an assistant director of the Craggy
Laundry facility from November 2003 until his promotion to the position of plant
manager in December 2010. Upon his promotion to plant manager, a change of
command audit (“the audit”) was performed by Respondent. The audit is performed
each time a new plant manager is hired, and serves as a “report of the condition of
that particular facility under the prior management.” The audit revealed that
improvement was needed in some areas of the laundry facility, and “significant
improvement” was needed in others. Petitioner’s direct supervisor, Ronald Young
(“Young”), discussed the results of the audit with Petitioner at a 3 February 2011
meeting. Due to the magnitude of the problems, “Petitioner was told that a follow-up
audit would be conducted to verify corrective action was implemented.”
Young sent an email to Petitioner on 1 March 2011 reminding him that the
problems that were found in the audit needed to be rectified. Although the problems
had not been corrected by that time, Petitioner responded to Young and indicated
that all of the issues had been corrected. The promised follow-up audit was conducted
on 7 June 2011, and found that some of the issues identified in the audit had not been
corrected. Due to these deficiencies, an unsatisfactory rating was entered into
Petitioner’s employee appraisal, known as the appraisal process (“TAP”) for July
2011. An “employee action plan” was issued to Petitioner on 24 August 2011, that
directed him to correct “all violations set forth in [the audit].”
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Sometime in November 2011, Young documented in Petitioner’s TAP that
Petitioner had abated all of the audit violations identified in the 24 August 2011
employee action plan. The TAP stated in the “performance log” that “[a]ll violations
noted in [the audit] have abated.” Despite this notation in Petitioner’s TAP,
Petitioner in fact had not abated all of the issues in the audit, and was issued a
written warning for unsatisfactory job performance on 15 December 2011 (the “first
written warning”) for “not satisfactorily implementing or correcting actions
prescribed on [the] action plan” issued 24 August 2011. The first written warning
alerted Petitioner that he might “be subject to further discipline up to and including
dismissal” if the problems were not corrected.
As a part of Petitioner’s promotion to plant manager, Petitioner was required
to become certified as a Laundry Manager under the Association of Linen
Management Program. Petitioner was aware of this requirement, and the
requirement was documented in his work plans in 2010, 2011, and 2012. Petitioner
was also issued an action plan on 21 December 2012 that gave him until 31 January
2013 to obtain the certification. Despite the deadline being extended at least twice,
Petitioner failed to obtain the required certification, and was issued another written
warning on 20 March 2013 (the “second written warning”).1 The second written
1 The second written warning was issued for “grossly inefficient job performance” rather than
unsatisfactory job performance. While Petitioner’s conduct that led to the second written warning did
not constitute grossly inefficient job performance, as the ALJ noted, “no disciplinary action shall be
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warning notified Petitioner that if he failed to achieve his certification by 20 April
2013,2 he would “receive further disciplinary action up to and including dismissal.”
As a part of Petitioner’s job responsibilities as plant manager, he was required
to reconcile receipts and send the information and invoices to a central office in
Raleigh for payment. Petitioner was not fulfilling this job requirement and, in July
2013, Young reached out to Petitioner to inquire why the receipts and invoices were
not being properly forwarded. Petitioner told Young that he would complete this task;
however, he never did. As a result, Petitioner received a written warning for
unsatisfactory job performance related to his failure to perform this task, as well as
his failure to correct issues found in an audit conducted 15 August 2013 (the “third
written warning”). The third written warning advised Petitioner that he was
expected to take “immediate corrective measures” or be subjected to “further
disciplinary action up to and including dismissal.” Shortly after the third written
warning was issued, a semi-annual safety inspection of the Craggy Laundry Facility
was conducted and several violations were found, including failures to maintain
safety reports and properly train staff on safety programs.
Karen Brown, the Director of Correction Enterprises and Young’s direct
supervisor, “felt disciplinary action was warranted because of Plaintiff’s continued
invalid solely because the disciplinary action is labeled incorrectly.” 25 NCAC 01J .0604(c). Like the
ALJ, we treat the second written warning as an instance of unsatisfactory job performance.
2 Petitioner did, eventually, receive the certification, but did so by July 2013, months after the
20 April 2013 deadline had passed.
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unsatisfactory job performance,” and a pre-disciplinary conference was held with
Petitioner. Following this conference, Petitioner was dismissed from his position for
unsatisfactory job performance. Following his dismissal, Petitioner utilized
Respondent’s internal appeal procedure, and a final agency decision affirmed his
dismissal. Petitioner filed a petition for a contested case hearing with OAH on 3 April
2014, alleging he was dismissed from his position of employment without just cause.
Petitioner voluntarily dismissed his petition 144 days later, on 25 August 2014. More
than eleven months later, on 12 August 2015, Petitioner filed a second petition for a
contested case hearing.
Respondent filed a motion to dismiss the second petition, arguing that N.C.
Gen. Stat. § 1A-1, Rule 41(a)(1) is inapplicable to OAH proceedings and, therefore, a
petition for a contested case hearing may not be voluntarily dismissed and refiled
within one year. The Administrative Law Judge (“ALJ”) assigned to the case ruled
that “Rule 41 of the N.C. Rules of Civil Procedure applies to contested cases heard by
[OAH],” and denied Respondent’s motion. The ALJ held a hearing on the merits of
Petitioner’s claims. Following that hearing, the ALJ issued a final decision
concluding as a matter of law that “[a]lthough just cause existed for terminating
Petitioner, Respondent failed to meet its burden of proof that it did not act
erroneously or fail to use proper procedure” in terminating Petitioner from his
employment “because Petitioner did not have two active warnings at the time he was
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disciplined and terminated.” According to the final decision, Respondent lacked just
cause to terminate Petitioner but had “sufficiently proven that it had just cause to
demote Petitioner based on his unsatisfactory job performance.” Therefore, the ALJ
ordered Petitioner retroactively reinstated but demoted to the position of assistant
manager. Respondent appeals.
II. Analysis
Respondent argues the ALJ erred by: (1) denying Respondent’s motion to
dismiss and concluding that N.C.G.S. § 1A-1, Rule 41(a)(1) applies to proceedings
before OAH; (2) entering several findings of fact that were not supported by
substantial evidence in the record; (3) concluding that Respondent lacked just cause
to dismiss Petitioner for unsatisfactory job performance; and (4) imposing a lesser
form of discipline rather than remanding the case to the employing agency to impose
a new form of discipline.
A. Applicability of N.C.G.S. § 1A-1, Rule 41(a)(1) to OAH Proceedings
Respondent first argues the trial court erred in denying its motion to dismiss
Petitioner’s second contested case petition. We review this argument de novo. Dion
v. Batten, ___ N.C. App. ___, ___, 790 S.E.2d 844, 851 (2016) (noting that this Court
reviews issues of statutory interpretation de novo). Respondent contends that
N.C.G.S. § 1A-1, Rule 41(a)(1), that permits a voluntarily dismissed claim to be refiled
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within one year of such dismissal, does not apply to cases before OAH. We disagree.
N.C.G.S. § 1A-1, Rule 41(a)(1) provides, in relevant part:
Subject to the provisions of Rule 23(c) and of any statute of
this State, an action or any claim therein may be dismissed
by the plaintiff without order of court (i) by filing a notice
of dismissal at any time before the plaintiff rests his
case[.] . . . Unless otherwise stated in the notice of
dismissal or stipulation, the dismissal is without
prejudice[.] . . . If an action commenced within the time
prescribed therefor, or any claim therein, is dismissed
without prejudice under this subsection, a new action
based on the same claim may be commenced within one
year after such dismissal unless a stipulation filed under
(ii) of this subsection shall specify a shorter time.
N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (2015). We begin with the assumption that the
Rules of Civil Procedure apply to contested case hearings as they do in the trial courts,
unless a statute or administrative rule dictates otherwise: “The Rules of Civil
Procedure as contained in G.S. 1A-1 . . . shall apply in contested cases in the Office of
Administrative Hearings (OAH) unless another specific statute or rule of the Office
of Administrative Hearings provides otherwise.” 26 NCAC 03 .0101(a) (2015)
(emphasis added). Cases from this Court have interpreted N.C.G.S. § 1A-1, Rule
41(b) as applying to contested case hearings before OAH. See Scott v. N.C. Dep't of
Crime Control & Pub. Safety, 222 N.C. App. 125, 730 S.E.2d 806 (2012); Lincoln v.
N.C. Dep’t of Health & Human Servs., 172 N.C. App 567, 616 S.E.2d 622 (2005).
Respondent contends that N.C.G.S. § 1A-1, Rule 41(a)(1) is inapplicable to
contested case proceedings because it permits “an action” to be dismissed and refiled
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by a plaintiff within one year. Since a contested case petition is not “an action” as
defined in our General Statutes,3 Respondent reasons, N.C.G.S. § 1A-1, Rule 41(a)(1)
cannot apply to contested case hearings. This assertion directly contradicts both
Scott and Lincoln, each of which applied N.C. Gen. Stat. § 1A-1, Rule 41(b) to
contested case hearings despite that portion of the rule also referring to the dismissal
of “an action.” Scott, 222 N.C. App. at 131 n.7, 730 S.E.2d at 810 n.7; Lincoln, 172
N.C. App. at 572-73, 616 S.E.2d at 626.
Our General Assembly has empowered OAH with “such judicial powers as may
be reasonably necessary as an incident to the accomplishment of the purposes for
which” OAH was created and, by statute, allowed the Chief Administrative Law
Judge of OAH to “adopt rules to implement the conferred powers and duties.” N.C.
Gen. Stat. §§ 7A-750, 7A-751(a) (2015). Under this authority, OAH promulgated
26 NCAC 03 .0101(a), which provides that the rules of civil procedure, including
N.C.G.S. § 1A-1, Rule 41(a)(1) “shall apply” in contested cases in the Office of
Administrative Hearings “unless another specific statute or rule provides otherwise.”
26 NCAC 03 .0101(a). Respondent’s interpretation would render any rule of civil
procedure that refers to “an action” as inapplicable to contested case hearings before
OAH, which uses the term “contested case.” Given 26 NCAC 03 .0101(a)’s expansive
3 N.C. Gen. Stat. § 1-2 provides: “An action is an ordinary proceeding in a court of justice, by
which a party prosecutes another party for the enforcement or protection of a right, the redress or
prevention of a wrong, or the punishment or prevention of a public offense.”
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command that the rules of civil procedure “shall apply” in contested case proceedings
unless another rule or statute directs otherwise, and previous interpretation of
N.C.G.S. § 1A-1, Rule 41(b) in Scott and Lincoln, we reject Respondent’s reading of
N.C.G.S. § 1A-1, Rule 41(a)(1).
Respondent also contends that N.C. Gen. Stat. § 126-34.02 mandates OAH
issue a final decision within 180 days “from the commencement of the case” and
thereby renders Rule 41(a)(1) inapplicable. We disagree. N.C.G.S. § 126-34.02, as
relevant to this argument, provides:
Once a final agency decision has been issued in accordance
with G.S. 126-34.01, an applicant for State employment, a
State employee, or former State employee may file a
contested case in the Office of Administrative Hearings
under Article 3 of Chapter 150B of the General Statutes.
The contested case must be filed within 30 days of receipt
of the final agency decision. Except for cases of
extraordinary cause shown, the Office of Administrative
Hearings shall hear and issue a final decision in
accordance with G.S. 150B-34 within 180 days from the
commencement of the case.
N.C. Gen. Stat. § 126-34.02(a) (2015). The 180-day mandate in N.C.G.S. § 126-34.02
does not conflict with a petitioner’s ability to voluntarily dismiss a case and refile it
within one year as permitted by N.C.G.S. § 1A-1, Rule 41(a)(1). Our Supreme Court
has held that “[t]he effect of a judgment of voluntary dismissal [pursuant to N.C.G.S.
§ 1A-1, Rule 41(a)] is to leave the plaintiff exactly where he or she was before the
action was commenced.” Brisson v. Santoriello, 351 N.C. 589, 593, 528 S.E.2d 568,
570 (2000) (citations, quotation marks, and brackets omitted). “If the action was
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originally commenced within the period of the applicable statute of limitations, it may
be recommenced within one year after the dismissal, even though the base period
may have expired in the interim.” Id. at 394, 528 S.E.2d at 571 (citations omitted).
Once a voluntary dismissal has been taken pursuant to N.C.G.S. § 1A-1, Rule
41(a)(1), the petitioner has “terminated the action, leaving nothing in dispute[.]”
Teague v. Randolph Surgical Assocs., P.A., 129 N.C. App. 766, 773, 501 S.E.2d 382,
387 (1998). In the present case, the original action was commenced on 3 April 2014
when Petitioner filed a petition for contested case hearing. The petition was filed by
Petitioner within thirty days of his receipt of the final agency decision in accordance
with N.C.G.S. § 126-34.02. Before any decision was reached by OAH, Petitioner
dismissed his claim without prejudice pursuant to N.C.G.S. § 1A-1, Rule 41(a)(1). At
that time, the original contested case petition had been “terminated,” leaving nothing
in dispute and nothing for OAH to rule on within 180 days. See Brisson, 351 N.C. at
593, 528 S.E.2d at 570 (noting that “[a] Rule 41(a) dismissal strips the trial court of
authority to enter further orders in the case, except” pursuant to Rule 41(d) in
instances not relevant here). Petitioner’s voluntary dismissal left him “exactly where
he . . . was before [the contested case petition] was commenced,” and allowed
Petitioner to recommence his case “within one year after the dismissal, even though
the base period . . . expired in the interim.” Id. (citations omitted).
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Pursuant to 26 NCAC 03 .0101(a), the North Carolina Rules of Civil Procedure
“shall apply” in contested cases before OAH unless a “specific” statute or regulation
provides otherwise. In the present case, having found no specific statute or rule that
provides to the contrary, we hold N.C.G.S. § 1A-1, Rule 41(a)(1) applies to contested
cases before OAH, and the ALJ therefore properly denied Respondent’s motion to
dismiss.
B. Challenged Findings of Fact
Respondent challenges findings of fact 6, 25, 27, 36, 39, and 41 made by the
ALJ. All findings of fact that are not challenged are deemed to be conclusively
established on appeal. Blackburn, ___ N.C. App. at ___, 784 S.E.2d at 519 (citing
Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). After carefully
reviewing the record and the ALJ’s final decision, we conclude that the challenged
findings are either not material to our decision in this case, or are more properly
labeled conclusions of law. The unchallenged findings are sufficient to show that
Respondent had just cause to dismiss Petitioner for unsatisfactory job performance.
See Blackburn, ___ N.C. App. ___, 784 S.E.2d at 519 (concluding that “it is not
necessary for us to assess the evidentiary support for all of the findings challenged
by” the appealing party). Therefore, we examine whether the unchallenged findings
of fact supported Respondent’s dismissal of Petitioner.
C. Just Cause to Dismiss Petitioner for Unsatisfactory Job Performance
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Respondent argues the ALJ erred in concluding it lacked just cause to
terminate Petitioner for unsatisfactory job performance. Respondent also contends
that all of Petitioner’s written warnings were “active” at the time of Petitioner’s
termination and, in the alternative, the plain language of 25 NCAC 01J .0605(b) does
not mandate that the prior disciplinary actions be “active” to count toward the
number needed before dismissal is permitted under the North Carolina
Administrative Code (“the Administrative Code”). We review de novo whether just
cause existed for Petitioner’s termination. See N.C. Dep't of Env’t & Natural Res. v.
Carroll, 358 N.C. 649, 666-67, 599 S.E.2d 888, 898 (2004).
A career state employee subject to the North Carolina Human Resources Act
may only be “discharged, suspended, or demoted for disciplinary reasons” upon a
showing of “just cause.” N.C. Gen. Stat. § 126-35(a) (2015). Pursuant to the
Administrative Code, “just cause” for the dismissal, suspension, or demotion of a
career state employee may be established only on a showing of “unsatisfactory job
performance, including grossly inefficient job performance,” or “unacceptable
personal conduct.” 25 NCAC 01J .0604 (2015).
Unsatisfactory job performance is defined as “work-related performance that
fails to satisfactorily meet job requirements as specified in the relevant job
description, work plan, or as directed by the management of the work unit or agency.”
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25 NCAC 01J .0614(9) (2015). The Administrative Code sets out the requirements
for a career state employee to be dismissed for unsatisfactory job performance:
In order to be dismissed for a current incident of
unsatisfactory job performance an employee must first
receive at least two prior disciplinary actions: First, one or
more written warnings followed by a warning or other
disciplinary action which notifies the employee that failure
to make the required performance improvements may
result in dismissal.
25 NCAC 01J .0605(b) (2015). “Statutory interpretation properly begins with an
examination of the plain words of the statute.” Correll v. Division of Social Services,
332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992) (citation omitted). “When the language
of a statute is clear and unambiguous, there is no room for judicial construction, and
the courts must give it its plain and definite meaning.” Lemons v. Old Hickory
Council, 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988) (citations omitted); see also
State v. Wiggins, 272 N.C. 147, 153, 158 S.E.2d 37, 42 (1967) (“It is elementary that
in the construction of a statute words are to be given their plain and ordinary
meaning unless the context, or the history of the statute, requires otherwise.”
(citation omitted)).
We are cognizant that this case requires us to interpret the meaning of an
administrative regulation, not a statute. However, “[o]ur Supreme Court has applied
the rules of statutory construction to administrative regulations as well as statutes.”
Kyle v. Holston Group, 188 N.C. App. 686, 692, 656 S.E.2d 667, 672 (2008) (citations
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omitted). Therefore, we employ the above rules of statutory construction to the
administrative regulation at issue.
Considering and applying the plain and unambiguous text of 25 NCAC 01J
.0605(b) appears to present a straightforward answer to this case. The
Administrative Code provision requires that, in order to be dismissed for a current
incident of unsatisfactory job performance, an employee must have received two prior
disciplinary actions, including a written warning and a warning or notification that
failure to make the required improvements may result in dismissal. See 25 NCAC
01J .0605(b). In the present case, Petitioner received his first written warning on 15
December 2011, and a second written warning on 20 March 2013. Both written
warnings advised Petitioner that failure to make the required performance
improvements – correcting the problems found in the audit and receiving a laundry
manager certification, respectively – might result in further disciplinary action,
including his dismissal.
Petitioner then received a third written warning on 24 September 2013,
because he failed to correct deficiencies found in the 15 August 2013 audit. The third
written warning, like the first and second, warned Petitioner that “if his
[u]nsatisfactory [j]ob [p]erformance continued, it might result in further disciplinary
action up to and including dismissal[.]” Petitioner was ultimately terminated due to
his failure to correct the deficiencies found in the third written warning, which served
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as the “current incident of unsatisfactory job performance.” 25 NCAC 01J .0605(b).
Therefore, the requirements of 25 NCAC 01J .0605(b) were met, and Respondent had
just cause to terminate Petitioner for unacceptable personal conduct.
Petitioner maintained, and the ALJ ultimately concluded, that this application
of 25 NCAC 01J .0605(b) to the facts of the present case was complicated by the
existence of 25 NCAC 01J .0614(6). Found in the definitional section of the relevant
subchapter of the administrative code, 25 NCAC 01J .0614(6) provides:
As used in this Subchapter:
....
(6) Inactive Disciplinary Action means any disciplinary
action issued after October 1, 1995 is deemed
inactive for the purpose of this Section if:
(a) the manager or supervisor notes in the
employee's personnel file that the reason for
the disciplinary action has been resolved or
corrected;
(b) the purpose for a performance-based
disciplinary action has been achieved, as
evidenced by a summary performance rating
of level 3 (Good) or other official designation
of performance at an acceptable level or better
and at least a level 3 or better in the
performance area cited in the warning or
disciplinary action, following the disciplinary
warning or action; or
(c) 18 months have passed since the warning or
disciplinary action, the employee does not
have another active warning or disciplinary
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action which occurred within the last 18
months.
25 NCAC 01J .0604(6) (2015) (emphases added). The ALJ concluded as a matter of
law that, because the definitional section defined “inactive disciplinary action,” it is
“only logical” that the two prior disciplinary actions required by 25 NCAC 01J
.0605(b) must be active. “To hold to the contrary,” the ALJ concluded, “means the
entire process of finding a prior discipline inactive has no applicability or effect; i.e.,
a meaningless exercise in futility.”4
We cannot subscribe to this reading of 25 NCAC 01J .0604(6)’s effect on 25
NCAC 01J .0605(b). By its terms, 25 NCAC 01J .0604(6) states that the definition of
“Inactive Disciplinary Action” is operable only “[a]s used in” Subchapter J of Title 25
of the North Carolina Administrative Code. 25 NCAC 01J .0604(6) does not mandate
that courts and ALJs make a finding that a prior disciplinary action is inactive, but
only instructs that when the term “inactive disciplinary action” is used in
Subchapter J of Title 25 of the Administrative Code, it has the meaning given to it by
25 NCAC 01J .0604(6). While 25 NCAC 01J .0605(b) is located in Subchapter J of
4 The ALJ also noted that the North Carolina State Human Resources Manual (“the Manual”)
advises that “[a] disciplinary action . . . becomes inactive, i.e. cannot be counted towards the number
of prior disciplinary actions that must be received before further action can be taken . . . when” any of
the three circumstances outlined in 25 NCAC 01J .0604(6)(a)-(c) have been satisfied. However, as the
ALJ recognized, the Manual has not been promulgated as a formal rule, and is not controlling. This
Court has recognized that properly promulgated statutes and administrative regulations – and not a
manual – are controlling in similar circumstances. See Estate of Joyner v. N.C. Dep’t of Health &
Human Servs., 214 N.C. App. 278, 288-89, 715 S.E.2d 498, 506 (2011) (holding that the North Carolina
Adult Medicaid Manual “merely explains the definitions that currently exist” in statutes, rules, and
regulations).
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Title 25, it does not use the phrase “inactive disciplinary action,” nor require that a
disciplinary action be “active” – or not “inactive” – before it can be used as a “prior
disciplinary action[]” to justify a career state employee’s dismissal for unsatisfactory
job performance. See 25 NCAC 01J .0605(b).
In order to affirm the ALJ’s reading of the Administrative Code, we would need
to insert a requirement into 25 NCAC 01J .0605(b) that the “two prior disciplinary
actions” not be “inactive.” Such a requirement is clearly not contained in 25 NCAC
01J .0605(b). While the code drafters certainly could have required that the written
warnings not be “inactive” in order for them to count towards the “two prior
disciplinary actions” needed before a career state employee can be dismissed, they did
not. We will not read a new requirement – that a warning not be “inactive” – into the
code section at issue when such a requirement is not contained in the administrative
regulation’s clear and ambiguous text. See State v. Singletary, ___ N.C. App. ___, ___,
786 S.E.2d 712, 725 (2016) (rejecting a litigant’s “extratextual interpretation” of a
statute when such a “textual substitution” would be “contrary to the clear statutory
mandate”).
A plain reading of 25 NCAC 01J .0605(b) requires that a career state employee
must have received “at least two prior disciplinary actions” before being subject to
dismissal for a third disciplinary action. In the present case, it is not contested that
Petitioner had received two disciplinary actions prior to the “current incident” which
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led to his dismissal. Each of the three written warnings advised Petitioner that he
was subject to further discipline, up to and including dismissal from employment, if
the deficiencies were not corrected. This met the requirements of 25 NCAC 01J
.0605(b), and Respondent therefore had just cause to dismiss Petitioner from his
position as plant manager.
The ALJ declined to reach the holding we reach today, reasoning that it would
leave 25 NCAC 01J .0614(6)’s definition of inactive disciplinary action “meaningless.”
While the term inactive disciplinary action is currently inoperable because it is not
used in Subchapter J of Title 25 of the Administrative Code, this does not foreclose
future amendments to that section of the Administrative Code to give use to the term.
We decline to make that amendment through judicial interpretation, and will not
read a requirement into an administrative regulation that it plainly does not contain
in order to make use of an otherwise inoperable definitional term. Having found the
requirements of 25 NCAC 01J .0605(b) met, we hold that Respondent had just cause
to dismiss Petitioner for unsatisfactory job performance, and the ALJ erred in
reversing Respondent’s dismissal. We therefore reverse the final decision of OAH.
REVERSED.
Judges DIETZ and TYSON concur.
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