Hershner v. N.C. Department of Administration

NO. COA13-790
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
MILLIE E. HERSHNER,
Petitioner,
v. Wake County
No. 12 CVS 8765
NC DEPARTMENT OF ADMINISTRATION
and THE NC HUMAN RELATIONS
COMMISSION,
Respondent.
Appeal by respondent from order entered 11 January 2013 by
Judge Paul C. Ridgeway in Wake County Superior Court. Heard in
the Court of Appeals 11 December 2013.
John Walter Bryant and Amber J. Ivie for petitioner-
appellee.
Roy Cooper, Attorney General, by Ann Stone, Assistant
Attorney General, for respondent-appellant.
STEELMAN, Judge.
Where unchallenged findings of fact support the decisions
of the administrative law judge and state personnel commission,
the trial court did not err in adopting their findings of fact
and conclusions of law. Where respondent failed at trial to
present evidence to support the alleged bases for petitioner’s
termination, the trial court did not err in affirming the
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decisions of the administrative law judge and state personnel
commission that petitioner’s termination was wrongful. Where
the state personnel commission had a quorum at the time it
commenced business, it was authorized to issue a decision.
I. Factual and Procedural Background
Millie Hershner (petitioner) was employed by the North
Carolina Department of Administration (DOA), Human Relations
Committee (HRC) (collectively, respondent) as a staff attorney.
Citizens who believe their rights under the Fair Housing Act
have been violated can file complaints with the HRC. As part of
her employment duties, petitioner assisted investigators in
these cases and helped to determine whether HRC should hear
them.
In 2005, petitioner was hired as an Attorney I for
respondent. She was selected for this position over another
applicant, Richard Boulden. In 2006, Boulden was selected for
an Attorney II position, making him petitioner’s supervisor.
Prior to 2006, petitioner had only one disagreement with
Boulden. At the time, Boulden, a case investigator, had
determined that a case had cause, while petitioner determined
that it did not. Subsequent to his promotion, Boulden did not
train petitioner, or meet with her to establish any kind of work
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plan or standards, as required by respondent’s “Performance
Management System.” However, on Boulden’s first review of
petitioner’s work, he gave her a negative performance rating.
Petitioner subsequently advised Boulden that he could not rate
her performance negatively without stating the basis for the
rating; Boulden then amended the performance ratings, so that
they were positive, but in the lower range.
Following the low rating, petitioner contacted the
complainants in cases on which she had previously worked. One
such complainant, Virginia Radcliffe (Radcliffe), had threatened
to sue HRC. On 3 January 2008, Boulden contacted Radcliffe,
informed her that HRC was no longer working on her case, and
told her that he would be the sole point of contact between
Radcliffe and respondent. Boulden claimed at the hearing that
he had overheard petitioner speaking with Radcliffe on the
telephone later that day, although he did not raise the issue
with petitioner at the time.
On 9 June 2008, Boulden informed petitioner of a
disciplinary meeting concerning her conversation with Radcliffe
on 3 January 2008. On 11 June 2008, petitioner received a Final
Written Warning for unacceptable personal conduct, specifically
insubordination, with regard to her continued contact with
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Radcliffe. This letter outlined five numbered rules that
petitioner had been expected to follow. There was no evidence
presented that petitioner had violated any of these rules, or
that petitioner had any subsequent contact with Radcliffe.
On 24 August 2009, petitioner was dismissed for
unacceptable personal conduct, including conduct unbecoming a
State employee that was detrimental to State service, violation
of a known work rule, and insubordination. Specifically, three
acts were alleged as the basis for this dismissal: (1)
petitioner sent two letters to Radcliffe, containing allegedly
confidential information; (2) petitioner contacted Stephanie
Williams (Williams), another complainant, and informed her that
she believed Williams’ case had “cause,” before a final
determination had been made by HRC; and (3) petitioner had been
instructed to work on a single assignment, to the exclusion of
others, and yet continued to work on other assignments. John
Campbell, Executive Director of HRC (Campbell) admitted that
petitioner was not fired due to a failure to meet expectations,
a failure to do her job, or unsuccessful job performance due to
lack of skill or effort. Further, an HRC Supervising
Investigator, Maggie Faulcon, observed that she had “never heard
of anyone ever even being disciplined for discussing the
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likelihood of the determination with a party, and for certain,
never heard of anyone losing their job over such a thing.”
On 4 December 2009, petitioner filed a petition for a
contested case hearing in the Office of Administrative Hearings
(OAH). On 3 February 2012, Administrative Law Judge Donald W.
Overby (ALJ) issued his decision, and held that respondent’s
dismissal of petitioner was unwarranted and should be reversed.
Respondent appealed the ALJ’s decision to the State Personnel
Commission. On 23 May 2012, the SPC issued its decision and
order, adopting the findings of fact and conclusions of law of
the ALJ, and affirming the decision in favor of petitioner.
Respondent appealed to the Superior Court of Wake County. On 11
January 2013, the trial court affirmed the decision of the SPC,
and ordered that petitioner be reinstated with back pay and
benefits.
Respondent appeals.
II. Standard of Review
“In cases appealed from administrative tribunals, we review
questions of law de novo and questions of fact under the whole
record test.” Diaz v. Div. of Soc. Servs., 360 N.C. 384, 386,
628 S.E.2d 1, 2 (2006).
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“[W]e consider de novo whether the Commission erred in
reaching its conclusion that ‘just cause’ existed for
petitioner's termination.” Amanini v. N.C. Dep't of Human Res.,
114 N.C. App. 668, 678, 443 S.E.2d 114, 120 (1994).
III. Adoption of Findings and Conclusions by Trial Court
In its first argument, respondent contends that the trial
court erred in adopting the findings of fact and conclusions of
law of the ALJ and SPC. We disagree.
The ALJ made one hundred and twenty five findings of fact,
which were adopted by the SPC, and ultimately adopted by the
trial court. Respondent challenges the evidentiary support for
only ten of these findings. Those findings which respondent
does not challenge are binding upon this court. Koufman v.
Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Even assuming arguendo that respondent is correct, and that
these ten findings were not supported by evidence in the record,
there were one hundred and fifteen unchallenged findings. We
hold that these remaining findings of fact support the ALJ’s
conclusions of law. These conclusions of law support the
decisions of the SPC and trial court to affirm the ALJ’s
decision.
This argument is without merit.
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IV. Affirming the ALJ and SPC
In its second argument, respondent contends that the trial
court erred in affirming the decisions of the ALJ and SPC. We
disagree.
Respondent contends that petitioner was dismissed due to
violations of guidelines, particularly those in the Final
Written Warning dated 11 June 2008, relating to the disclosure
of confidential information and contacting a complainant.
Respondent contends that petitioner’s violation of these
guidelines constituted just cause for petitioner’s dismissal.
At trial, respondent supported its claim that petitioner’s
conduct was unbecoming a State employee with two letters,
written by petitioner to Radcliffe, which respondent contends
contained confidential information about cases and derogatory
remarks about petitioner’s supervisor and HRC. However,
respondent failed to offer any evidence that the information in
these letters was confidential. Respondent also failed to
present evidence that these letters were detrimental to State
service simply because they may have contained negative remarks
concerning petitioner’s supervisor. The ALJ concluded that
“[t]he Respondent failed to meet its burden to establish that
any information released by the Petitioner . . . was
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confidential to anyone other than the Petitioner, who is free to
waive that confidentiality as she chooses.” The ALJ also
concluded that “[t]he Respondent failed to meet its burden to
establish that the release of information by Ms. Hershner was
detrimental to state service simply because it may have been
negative regarding one Supervisor[.]” These conclusions were
affirmed by the SPC and trial court.
Respondent also contended that petitioner was dismissed, in
part, for the willful violation of a known work rule,
specifically for her alleged disclosure to Williams of the
status of her case. However, respondent presented no evidence
that this rule applied to HRC attorneys such as petitioner.
Evidence in the record instead supported a finding that this
rule applied to the non-attorney investigators, and that
investigators regularly disregarded this rule. Petitioner’s
supervisor testified that he had never told petitioner that this
policy was grounds for dismissal. One investigator testified
that such a policy did not apply to attorneys, and that she had
not heard of investigators being disciplined for discussing
preliminary determinations with complainants. The ALJ
concluded, based upon this evidence, that the State had not met
its burden of establishing that this policy existed, or that
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such a policy was enforced prior to being used as a basis to
discipline petitioner.
Finally, respondent alleged as its third basis for
petitioner’s dismissal that petitioner was insubordinate, in
that she willfully refused to carry out a reasonable order from
her supervisor. Respondent contends that this directive was to
work on nothing but an appellate brief for one specific case.
However, the directive was for petitioner to make the brief her
“top priority,” not to cease all other work. The ALJ found that
the case in question was ultimately dismissed as a result of her
supervisor’s conduct, not as a result of petitioner’s work. The
ALJ further concluded that:
The Respondent failed to establish its
burden that the Petitioner was insubordinate
in her handling of the writing of the
Appellate Brief, when she had been commended
by the Executive Director of the Agency for
postponing her vacation to finish a brief,
putting her work ahead of her personal life,
she had never missed a filing deadline in
her work at the HRC, the Petitioner still
had fifteen days remaining within which to
finish the brief before its due date when
she was placed on administrative leave by
the Agency Counsel, the HRC Agency Counsel
eventually decided to abandon the appeal
without ever filing the brief, and the very
day the Petitioner was placed on
Administrative leave she was told by the
Agency Counsel that the brief was only a
"top priority" not her only priority.
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We have previously held that, “according to the
Commission's regulations, ‘just cause’ for dismissal has been
divided into two basic categories—unsatisfactory job performance
and personal conduct (misconduct) detrimental to State service.”
Amanini, 114 N.C. App. at 679, 443 S.E.2d at 120. In Amanini,
we held that there was a distinction between the two categories:
The JOB PERFORMANCE category is intended to
be used in addressing performance-related
inadequacies for which a reasonable person
would expect to be notified of and allowed
an opportunity to improve. PERSONAL CONDUCT
discipline is intended to be imposed for
those actions for which no reasonable person
could, or should, expect to receive prior
warnings.
Id. at 679, 443 S.E.2d at 120-21. In the instant case, the
conduct at issue involved job performance, the first category.
Alleged infractions under this category require prior notice and
opportunity to improve. As the ALJ found, however, petitioner
had never received such warning.
We hold that petitioner’s termination, based upon
disclosure of information which respondent failed to prove was
confidential, violation of a rule which respondent failed to
prove was in effect, and disobedience of an instruction which
was not, in fact, disobeyed, was not supported by just cause.
The trial court did not err in affirming the decisions of the
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ALJ and SPC that respondent lacked just cause to terminate
petitioner’s employment.
This argument is without merit.
C. Whether a Quorum Existed
In its third argument, respondent contends that the SPC
lacked the authority to make its decision because a quorum of
its members was not present. We disagree.
Of the nine members of the SPC, seven were present when
petitioner’s case was heard. Once the session of the SPC had
opened, those with conflicts were asked to recuse themselves;
two did so, leaving five remaining SPC members. Respondent
contends that five members did not constitute a quorum, and that
the SPC lacked authority to rule on petitioner’s case.
At the time of petitioner’s case, the SPC required a quorum
of six in order to hear cases. N.C. Gen. Stat. § 126-2(f)
(2011).1 The term “quorum” is not defined in Chapter 126 of the
North Carolina General Statutes. Black’s Law Dictionary defines
a quorum as “[t]he minimum number of members . . . who must be
present for a deliberative assembly to legally transact
1
In August of 2013, N.C. Gen. Stat. § 126-2(f) was amended to
read “Five members of the Commission shall constitute a quorum.”
N.C. Gen. Stat. § 126-2(f) (2013). However, at the time of
petitioner’s hearing before the SPC, the statute required six
members to constitute a quorum.
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business[,]” but does not state at what time during the
proceedings a quorum should be determined. Black’s Law
Dictionary, 1370 (9th ed. 2009). However, several other North
Carolina statutes note that once a person is deemed present for
quorum purposes, he is deemed present for the remainder of that
meeting. See N.C. Gen. Stat. §§ 55-7-25(b), 55A-7-22(a) (2013).
We hold that a quorum of the SPC is to be determined at the
beginning of a meeting; once the meeting is opened, the SPC may
conduct business regardless of subsequent recusals that may
reduce the number of members voting on a particular issue below
the number required for a quorum.
In the instant case, when the SPC commenced business, seven
members were present, exceeding the six required for a quorum.
At that time, a quorum was established. Respondent cites no
authority to support the contention that this quorum was
subsequently nullified by the recusal of two of its members. We
hold that the SPC had a quorum, and therefore had the authority
to hear petitioner’s case.
This argument is without merit.
NO ERROR.
Judges GEER and ERVIN concur.