Bishop v. North Carolina Department of Human Resources

394 S.E.2d 702 (1990) 100 N.C. App. 175

Margaret Y. BISHOP, Petitioner-Appellee,
v.
NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, O'BERRY CENTER, Respondent-Appellant.

No. 898SC777.

Court of Appeals of North Carolina.

August 21, 1990.

Eastern Carolina Legal Services, Inc. by Wesley Abney, Wilson, for petitioner-appellee.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. John R. Corne and Associate Atty. Gen. Valerie B. Spalding, Raleigh, for respondent-appellant.

PHILLIPS, Judge.

Respondent appellant does not question any of the foregoing facts upon which the several adjudications are based. Its only contentions are that the trial court erred in concluding that the dismissal procedures violated Bishop's due process rights and in awarding her back pay and attorneys fees. Neither contention has merit in our opinion.

That petitioner had a property interest of continued employment which the Due Process Clause of the United States Constitution protected is not disputed. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Leiphart v. North Carolina School of the Arts, 80 N.C.App. 339, 342 S.E.2d 914, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). The essential due process requirements for discharging a state employee who has such a property interest have been stated to be that "[t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 1495, 84 L. Ed. 2d 494, 506 (1985). In other cases it has been held that the employee's opportunity to be heard must be meaningful in time and in manner. Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965); Nantz v. Employment Security Commission, 28 N.C.App. 626, 222 S.E.2d 474, aff'd, 290 N.C. 473, 226 S.E.2d 340 (1976). Here petitioner's opportunity to be heard was not meaningful since the final decision to discharge her was made before she was given an opportunity to respond to the charges and those who did the firing did not confer after her response was made.

The award of back pay to petitioner is authorized by 25 N.C.A.C. 1B .0432 Remedies for Procedural Violations, which states that:

(c) Failure to conduct a pre-dismissal conference shall be deemed a procedural violation. Further, the remedy for this violation shall require that the employee be granted back pay from the date of the dismissal until a date determined appropriate by the commission in light of the purpose of pre-dismissal conferences. Reinstatement shall not be a remedy for lack of a pre-dismissal conference.

Since petitioner had already been dismissed before Lee and the others conferred with her, there was no pre-dismissal conference under the provisions of the rule. Due to a typographical error the trial court inadvertently ordered back pay from 5 October 1986—rather than from 15 October 1986, when petitioner was dismissed—through 19 October 1987, the date of the hearing before the Administrative Law Judge. Correcting this is a clerical matter. The award of attorneys fees was also proper, since G.S. 126-4(11) authorizes the assessment of reasonable attorneys fees against a state agency in cases where back pay is ordered.

In view of the foregoing petitioner's cross-assignments of error need not be determined.

Affirmed.

EAGLES and ORR, JJ., concur.