Brewington v. N.C. Dep't Of Pub. Safety

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-913
Filed: 20 June 2017
Office of Administrative Hearings, No. 15 OSP 07614
CHRISTINE N. BREWINGTON, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, STATE BUREAU OF
INVESTIGATION, Respondent.
Appeal by petitioner from final decision entered 29 March 2016 by Senior
Administrative Law Judge Fred G. Morrison, Jr. in the Office of Administrative
Hearings. Heard in the Court of Appeals 3 April 2017.
The McGuinness Law Firm, by J. Michael McGuinness, for petitioner-
appellant.
Attorney General Joshua H. Stein, by Special Deputy Attorney General J. Joy
Strickland, for respondent-appellee.
Essex Richards, P.A., by Norris A. Adams, II, for amicus curiae North Carolina
State Lodge of the Fraternal Order of Police.
ZACHARY, Judge.
Petitioner Christine N. Brewington appeals from a Final Decision of the North
Carolina Office of Administrative Hearings, which concluded that respondent North
Carolina Department of Public Safety (DPS), State Bureau of Investigation (SBI) had
just cause to dismiss Brewington from her position as a Special Agent with the SBI.
BREWINGTON V. N.C. DEPT. OF PUB. SAFETY
Opinion of the Court
For the reasons that follow, and after careful analysis, we affirm the decision of the
administrative law judge.
I. Background
Brewington began working as a Special Agent for the SBI in 1998, and she held
that position until her dismissal in June 2015. Prior to her dismissal, Brewington
was working in the Diversion and Environmental Crimes Unit. On 3 September
2014, Brewington was assigned to conduct interviews with several employees of a
pharmacy located in Lillington, North Carolina. The assignment required
Brewington to work with Elizabeth Collier, an investigator with the North Carolina
Pharmacy Board, in connection with a drug diversion case. This was Collier’s first
case as an investigator with the Pharmacy Board.
After concluding the interviews between 1:45 and 2:00 p.m., Brewington and
Collier drove separately to a nearby restaurant called the Sports Zone, where
Brewington had dined on prior occasions, for a working lunch. While there, Martha
Sullivan waited on Brewington and Collier’s table. Sullivan would usually fix
Brewington a beverage known as a “Sprite Delight,” unless Brewington requested
something else to drink. Brewington described the Sprite Delight as a non-alcoholic
beverage, pinkish in color, which contained “cranberry juice . . . along with pineapple
juice or grapefruit juice.” Brewington recalled that she ordered her “usual drink[,]” a
Sprite Delight, during her 3 September 2014 lunch with Collier.
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According to Collier, Brewington ordered “what appeared to be a cocktail[,]”
which was pink and was served in a “stemmed bowl-type glass, goblet style.”
Brewington drank the beverage as she and Collier ate lunch. Collier also observed
that Brewington ordered a second drink at the end of the meal that had the same
appearance. Toward the end of the meal, Brewington’s friend, Mike Mansfield,
arrived at the Sports Zone and joined Brewington and Collier. Brewington recalled
that Mansfield ordered a beer immediately after he sat down, but Collier did not
observe Mansfield order any food or drinks and indicated that she would have
remembered seeing beer on the table. According to Brewington, she did not consume
any alcohol during lunch, but “throughout the time that we were there, [Mansfield]
continued to order another beer. I do recall him ordering a mixed drink, but I don’t
know what the mixed drink was.”
Shortly after Mansfield’s arrival, Collier prepared to leave the restaurant.
Because the Pharmacy Board authorized its representatives to pay for meals they
shared with members of other state agencies, Collier offered to pay for Brewington’s
lunch. However, before she paid the bill, Collier informed Brewington that while she
could pay for the food, she could not use her Pharmacy Board credit card to pay for
alcohol. Brewington did not attempt to argue with or correct Collier’s impression that
the beverages Brewington had ordered contained alcohol. Collier “made a point to
separate [the alcohol] from [her] portion of the bill[,]” paid for one order of loaded
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Opinion of the Court
potato chips and one order of fish tacos at 3:28 p.m., and then left the restaurant
“pretty much right after” paying the bill.
Brewington remained at the restaurant with Mansfield for approximately
thirty minutes after Collier’s departure. Mansfield had forgotten his wallet, so
Brewington offered to “pay for his meal or whatever he had ordered, and he could just
pay [her] back at a later date.” At 3:57 p.m., Brewington used her personal credit
card to pay for one order of loaded potato chips, “3 Coors Light” beers (totaling $9.87),
and “2 Special Mixed Drink 7[’s]” (totaling $15.98).
Eight months after her 3 September 2014 lunch with Brewington, Collier
audited a SBI Diversion School course. After diversion classes had concluded, Collier
attended a social dinner with a group of course participants, one of whom was SBI
Special Agent Steven1 Smith. During a conversation regarding professionalism,
Collier mentioned to Special Agent Smith that she had observed Brewington consume
alcohol during their lunch at the Sports Zone. Collier recalled that the incident “just
kind of came up in conversation.” Special Agent Smith informed Collier that he would
have to report the issue of Brewington’s alleged misconduct to his supervisor, as the
SBI has a strict policy that prohibits the consumption of alcohol by on-duty agents.2
Once Special Agent Smith reported Collier’s allegations to his supervisor, the issue
1 Special Agent Smith’s first name appears as both “Steven” and “Stephen” in the record. We
use the former spelling because that is how Collier spelled it at Brewington’s contested case hearing.
2 An exception to this rule is when an agent is working in an undercover capacity and becomes
involved in an unavoidable situation where consumption of alcohol is necessary.
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worked its way through the SBI’s chain of command. Eventually, the Special Agent
in Charge of the SBI’s Special Investigations Unit, Kanawha Perry, was assigned to
investigate the incident.
By letter dated 11 May 2015, Special Agent in Charge Perry notified
Brewington that she was the subject of an internal investigation. However, the letter
contained an error as to the date of the incident: “The nature of the allegation is as
follows: Unacceptable Personal Conduct based on an allegation that in or around
January 2015 you consumed an alcoholic beverage while on duty.” (Emphasis added).
Special Agent in Charge Perry and Assistant Special Agent in Charge Cecil Cherry
interviewed Brewington on 20 May 2015. Prior to the beginning of the interview,
Special Agent in Charge Perry advised Brewington of her Garrity rights3 and
corrected the date of the alleged offense date to 3 September 2014. After the date in
question was correctly identified, Brewington stated that she did not need extra time
to prepare for the interview. Because SBI policy generally prohibits the use of tape
recorders during non-custodial interviews, Special Agent in Charge Perry took notes
on Brewington’s answers and used these notes to generate a typewritten report.
3 In Garrity v. New Jersey, the United States Supreme Court held that statements elicited as
a result of compelling a choice between self-incrimination and loss of a public job are inadmissible in
criminal proceedings. 385 U.S. 493, 500, 17 L. Ed. 2d 562, 567 (1967) (“We now hold the protection of
the individual under the Fourteenth Amendment against coerced statements prohibits use in
subsequent criminal proceedings of statements obtained under threat of removal from office, and that
it extends to all, whether they are policemen or other members of our body politic.”).
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According to Special Agent in Charge Perry’s report, Brewington was asked if
she took any prescription medications that affected her ability to use a firearm; in
response, she identified five medications that she was taking to control various health
conditions, and she stated that none of the medicines affected her cognitive abilities
or her ability to use a firearm. The agents then proceeded to ask Brewington
questions concerning what occurred at the Sports Zone on 3 September 2014.
Brewington indicated that she drank two Sprite Delights; that she did not consume
any alcohol; that Mansfield arrived near the end of the lunch; that “she [could not]
recall what Mansfield had to drink or eat”; that Mansfield “usually gets water”; and
that Mansfield “ ‘rarely’ dr[ank] a beer or two and she [could not] recall if he bought
a beer that day.”
Later in the interview, the agents produced Brewington’s 3 September 2014
receipt from the Sports Zone. Brewington confirmed that her credit card was used to
pay the bill, and that her signature appeared on the receipt. Brewington also agreed
that based on the price of the two mixed drinks (approximately $8.00 apiece), the
drinks must have contained alcohol. However, after explaining that Sullivan never
charged her for Sprite Delights, Brewington maintained that she had not ordered any
alcohol and that it was possible that Mansfield had ordered the two mixed drinks and
the three beers listed on the receipt.
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At that point in the interview, Assistant Special Agent in Charge Cherry
obtained Mansfield’s cell phone number from Brewington, went to another room, and
called Mansfield. Upon his return to the interview room, Assistant Special Agent in
Charge Cherry reported that, according to Mansfield, no alcohol was ordered at the
lunch, but if he did consume an alcoholic drink at the Sports Zone, it would have been
a beer. After considering Mansfield’s statement to Assistant Special Agent in Charge
Cherry and noticing certain discrepancies in Brewington’s statements, Special Agent
in Charge Perry informed Brewington that she would be required to undergo a
polygraph examination. The results of that examination included a determination
that Brewington had answered the following question untruthfully: “Did you drink
any alcohol at lunch on September 3, 2014? (Answer: ‘No’)[.]” The polygraph report
also contained statements that Brewington made during a post-examination
interview:
[Special Agent] Brewington was interviewed post
examination by [Assistant Special Agent in Charge] Smith.
[Special Agent] Brewington stated that her memory was
affected by some of her medical conditions. She further
stated that she possibly could have consumed a sip of
alcohol from her companion’s drink and she could not
remember. After thinking about the incident further,
[Special Agent] Brewington stated she was “sure” she did
not consume any alcohol at lunch on that particular date
and time.
By letter dated 3 June 2015, the SBI notified Brewington that she was required
to attend a pre-disciplinary conference with SBI Special Agent in Charge W. Ty
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Opinion of the Court
Sawyer. The specific allegations to be discussed were that Brewington had consumed
alcohol while on official duty and had been untruthful during the internal
investigation. Among the conference’s purposes were to allow Brewington to present
facts that would counter the allegations or support her case and to respond with any
information that was relevant to the question of whether disciplinary action, up to
and including dismissal, was proper. The pre-disciplinary Conference was held on 10
June 2015. The next day, the SBI issued a letter informing Brewington of
“Management’s decision . . . to dismiss [her] effective June 11, 2015, based on
Unacceptable Personal Conduct.” The dismissal decision was based upon
Brewington’s consumption of alcoholic beverages while on duty, and her
untruthfulness during the internal investigation process.
After receiving the dismissal letter, Brewington appealed the SBI’s decision to
the DPS’s Employment Advisory Committee (EAC). As part of the grievance process,
Brewington submitted two “Employee/Witness” forms requesting that Sullivan and
Mansfield be permitted to appear as voluntary witnesses at the EAC Hearing. This
request was denied. On 25 August 2015, the EAC heard Brewington’s appeal, and
considered the internal investigation file, the polygraph examination report, and
other statements and evidence that Brewington presented on her own behalf. The
EAC also considered the statements that Sullivan and Mansfield gave to the SBI. In
a memorandum dated 7 September 2015, the EAC “found that [while] the dismissal
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letter specified that Ms. Brewington was dismissed for consuming alcohol, . . . the
evidence presented during the hearing indicated that she purchased alcohol on duty.”
The EAC concluded that this distinction was significant. Although the EAC
recognized that “both purchasing and consuming alcohol on duty . . . constituted
Unacceptable Personal Conduct[,]” it ultimately recommended that Brewington’s
dismissal be overturned.
Once EAC’s memorandum was issued, the SBI’s Deputy Director, Janie
Sutton, was charged with issuing a final recommendation to SBI Director B.W.
Collier concerning Brewington’s dismissal. In carrying out this responsibility,
Deputy Director Sutton considered the internal investigation file, spoke with Special
Agent in Charge Perry and his staff, consulted with the SBI’s legal counsel, and
reviewed the EAC’s memorandum. Deputy Director Sutton also spoke with
Brewington’s immediate supervisor and reviewed the portion of Brewington’s
personnel file that pertained to three previous disciplinary actions. Brewington had
been given written warnings for “Unsatisfactory Job Performance” in August 2013
and September 2014, respectively, for failing to “properly store and secure evidence”
that was under her control and for failing to “complete criminal investigative reports
and case assignments in a timely manner.” On 4 March 2015, Brewington was
demoted from the position of “Agent III to Agent II” for, inter alia, failure to comply
with certain North Carolina criminal discovery statutes (by neglecting to turn over
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certain discoverable materials to the appropriate District Attorneys’ Offices in several
cases) and for a continuing failure to timely complete investigative reports and
activities. After completing her independent inquiry into the matter and conferring
with Director Collier, Deputy Director Sutton recommended that Brewington’s
dismissal be upheld.
On 28 September 2015, Director Collier issued the SBI’s final agency decision,
which upheld Brewington’s dismissal. Director Collier’s decision was based upon the
following rationale:
The facts indicate that you not only violated SBI policy and
procedure by consuming alcoholic beverages during the
work day; but you were not truthful during the internal
investigation process, which is also a violation of SBI policy
and procedure. Each of the offenses standing alone is just
cause for your dismissal for [unacceptable] personal
conduct, especially in light of your disciplinary history.
You could just as well be dismissed for unsatisfactory job
performance. . . .
Given the fact that you have been given multiple
opportunities to conform your performance and conduct to
the expected norms of this organization, and you have
failed to do so, I do not believe that another demotion or
even a suspension or written warning will serve any
additional purpose.
On 21 October 2015, Brewington filed a petition for a contested case hearing
in the OAH. The case was heard on 11 and 12 January 2016 before Senior
Administrative Law Judge (ALJ) Fred G. Morrison, Jr. In a Final Decision entered
29 March 2016, ALJ Morrison made the following pertinent findings of fact:
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14. Collier recalled a man arriving toward the end of her
lunch with Petitioner, who stayed at the table briefly but
he did not sit down or order food and drinks. Collier left
shortly after the man arrived. Collier’s recollection of her
interaction with this man is consistent with Petitioner’s
oral statements to Special Agent in Charge Kanawha Perry
(SAC Perry) made during her May 20, 2015, investigative
interview that her friend Michael Mansfield arrived near
the end of Collier’s and her lunch after Collier and she had
already eaten their lunch and that “Mansfield met Collier
just before she left.”
15. Collier did not remember seeing the man order mixed
drinks or drink beer, or there being any beer on the table
during her time at lunch. She only recalls seeing the two
mixed drinks ordered by Petitioner while they ate lunch
together. Collier opined that had the man sat down and
ordered and consumed beer she would have remembered it.
Collier’s testimony in this regard is credible.
...
22. Petitioner’s testimony that Mansfield arrived at the
restaurant “around three o’clock, if not a little before” . . . ;
that Mansfield came in about midway through her meal
with Collier and sat down while they finished their meal. .
. ; and that Mansfield ordered a beer as soon as he sat down
and then “continued to order another beer” while Petitioner
and Collier were finishing their meal . . . is not credible in
that it conflicts with the statements made by Petitioner to
SAC Perry listed in Finding of Fact 14 and with Collier’s
testimony listed in Findings of Fact 14 and 15. Collier’s
testimony is more credible.
23. Petitioner’s testimony that her friend Mike Mansfield
ordered and consumed all of the alcoholic beverages listed
on the Sports Zone receipt that she paid with her debit card
is not credible, in that it is not reasonable to believe that
Mansfield ordered and/or consumed three beers and two
mixed alcoholic drinks in the approximate 30 minute time
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period between 3:28 p.m. when Collier paid her bill and left
the restaurant, and 3:57 p.m. when Petitioner paid her bill.
24. It is more likely than not that Mansfield ordered and
drank the three beers while Petitioner drank her second
mixed drink after Collier left the restaurant. . . .
28. It is more likely than not that Petitioner drank alcoholic
beverages while armed and on official duty on September
3, 2014, and made untrue statements to SBI agents during
the course of her investigative interview on May 20, 2015.
...
31. Based on all of the information that she reviewed,
Sutton recommended to Director Collier that Petitioner be
dismissed. Director Collier adopted that recommendation
and designated authority to Sutton to sign the agency’s
final agency decision dismissing her. She was dismissed
from the SBI for unacceptable personal conduct for
consuming alcohol while on duty and being untruthful
when questioned about the matter during the internal
investigation. . . .
32. Sutton, on behalf of the SBI, considered the seriousness
of the offenses and Petitioner’s disciplinary history which
included multiple written warnings (for unsatisfactory
work performance) and a recent demotion (for
unacceptable personal conduct and unsatisfactory job
performance) in determining the appropriate sanction for
Petitioner’s unacceptable personal conduct. Based on these
considerations, Sutton determined that Petitioner’s
conduct warranted dismissal and she continued to hold
that position on behalf of the SBI at hearing.
Based on these and other findings, ALJ Morrison concluded that “substantial
evidence” presented at the hearing established that Brewington “consumed an
alcoholic beverage during her September 3, 2014 lunch” with Collier, and that
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Brewington “made untrue statements to SBI agents during her investigative
interview on May 20, 2015[.]” ALJ Morrison then concluded that DPS had shown by
the preponderance of the evidence that it had just cause to terminate Brewington for
unacceptable personal conduct.
Brewington now appeals from ALJ Morrison’s Final Decision.
II. Standard of Review
Section 150B-51 of our State’s Administrative Procedure Act (APA) establishes
the scope and standard of review that we apply to the final decision of an
administrative agency. Harris v. N.C. Dep’t of Pub. Safety, No. COA16-341, __ N.C.
App. __, __, 798 S.E.2d 127, 133, 2017 WL 900037 (Mar. 7, 2017). The APA authorizes
this Court to affirm or remand an ALJ’s final decision, N.C. Gen. Stat. § 150B-51(b)
(2015), but such a decision may be reversed or modified only
if the substantial rights of the petitioners may have been
prejudiced because 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 [ALJ];
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible under
G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire
record as submitted; or
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(6) Arbitrary, capricious, or an abuse of discretion.
Id. The particular standard applied to issues on appeal depends upon the nature of
the error asserted. “It is well settled that in cases appealed from administrative
tribunals, questions of law receive de novo review, whereas fact-intensive issues such
as sufficiency of the evidence to support an agency’s decision are reviewed under the
whole-record test.” N. Carolina Dep’t of Env’t & Nat. Res. v. Carroll, 358 N.C. 649,
659, 599 S.E.2d 888, 894 (2004) (brackets, quotation marks and citation omitted).
To that end, we review de novo errors asserted under subsections 150B-
51(b)(1)-(4). N.C. Gen. Stat. § 150B-51(c) (2015). Under the de novo standard of
review, the reviewing court “considers the matter anew and freely substitutes its own
judgment[.]” Carroll, 358 N.C. at 660, 599 S.E.2d at 895 (citation, internal quotation
marks, and brackets omitted).
When the error asserted falls within subsections 150B-51(b)(5) and (6), this
Court must apply the “whole record standard of review.” N.C. Gen. Stat. § 150B-51(c)
(2015). Under the whole record test,
[the reviewing court] may not substitute its judgment for
the agency’s as between two conflicting views, even though
it could reasonably have reached a different result had it
reviewed the matter de novo. Rather, a court must
examine all the record evidence—that which detracts from
the agency’s findings and conclusions as well as that which
tends to support them—to determine whether there is
substantial evidence to justify the agency’s decision.
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Carroll, 358 N.C. at 660, 599 S.E.2d at 895 (internal citations and quotation marks
omitted). “ ‘Substantial evidence’ means relevant evidence a reasonable mind might
accept as adequate to support a conclusion.” N.C. Gen. Stat. § 150B-2(8c) (2015).
“In a contested case under the APA, as in a legal proceeding initiated in District
or Superior Court, there is but one fact-finding hearing of record when witness
demeanor may be directly observed.” Carroll, 358 N.C. at 662, 599 S.E.2d at 896
(citation and internal quotation marks omitted). It is also well established that
[i]n an administrative proceeding, it is the prerogative and
duty of [the ALJ], once all the evidence has been presented
and considered, to determine the weight and sufficiency of
the evidence and the credibility of the witnesses, to draw
inferences from the facts, and to appraise conflicting and
circumstantial evidence. The credibility of witnesses and
the probative value of particular testimony are for the
[ALJ] to determine, and [the ALJ] may accept or reject in
whole or part the testimony of any witness.
City of Rockingham v. N.C. Dep’t of Envt. & Natural Res., Div. of Water Quality, 224
N.C. App. 228, 239, 736 S.E.2d 764, 771 (2012). Our review, therefore, must be
undertaken “with a high degree of deference” as to “ ‘[t]he credibility of witnesses and
the probative value of particular testimony[.]’ ” N.C. Dep’t of Pub. Safety v. Ledford,
__ N.C. App. __, __, 786 S.E.2d 50, 64 (2016) (citation omitted), review allowed, __
N.C. __, 792 S.E.2d 152 (2016). As our Supreme Court has explained, “the ALJ who
conducts a contested case hearing possesses those institutional advantages that make
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it appropriate for a reviewing court to defer to his or her findings of fact.” Carroll,
358 N.C. at 662, 599 S.E.2d at 896 (internal citation and quotation marks omitted).
III. Just Cause
Brewington’s overarching argument on appeal is that ALJ Morrison erred in
concluding that DPS had just cause to dismiss Brewington from employment.
However, Brewington’s attack on DPS’s just cause determination, and on ALJ
Morrison’s consideration of it, takes many different forms. As such, we begin with an
explanation of North Carolina’s essential just cause principles.
Brewington was a career State employee subject to the North Carolina Human
Resources Act. Our legislature has determined that “[n]o career State employee
subject to the . . . Act shall be discharged, suspended, or demoted for disciplinary
reasons, except for just cause.” N.C. Gen. Stat. § 126-35(a) (2015). Under the North
Carolina Administrative Code, “just cause” for the disciplinary action taken may be
established upon a showing of an employee’s “unacceptable personal conduct.” 25
NCAC 1J.0604(b)(2) (2016). Unacceptable personal conduct is defined, in pertinent
part, as
(a) conduct for which no reasonable person should expect
to receive prior warning;
...
(d) the willful violation of known or written work rules; [or]
(e) conduct unbecoming a state employee that is
detrimental to state service[.]
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25 NCAC 1J.0614(8) (2016).
“Just cause, like justice itself, is not susceptible of precise definition.” Carroll,
358 N.C. at 669, 599 S.E.2d at 900 (citations and quotation marks omitted). Properly
understood, just cause is a “flexible concept, embodying notions of equity and fairness,
that can only be determined upon an examination of the facts and circumstances of
each individual case.” Id. (citation and quotation marks omitted). “Inevitably, this
inquiry requires an irreducible act of judgment that cannot always be satisfied by the
mechanical application of rules and regulations.” Id.
In Carroll, our Supreme Court declared that every determination of whether a
public employer’s decision to discipline its employee was supported by just cause
“requires two separate inquiries: first, whether the employee engaged in the conduct
the employer alleges, and second, whether that conduct constitutes just cause for the
disciplinary action taken.” Id. at 665, 599 S.E.2d at 898 (citation, quotation marks,
and brackets omitted). “[T]he first of these inquiries is a question of fact . . . [and is]
reviewed under the whole record test. . . . [T]he latter inquiry is a question of law . .
. [and] is reviewed de novo.” Id. at 665-66, 599 S.E.2d at 898.
This Court has addressed “the subject of commensurate discipline” in the
context of unacceptable personal conduct and the just cause framework. Warren v.
N. Carolina Dep’t of Crime Control & Pub. Safety, 221 N.C. App. 376, 379, 726 S.E.2d
920, 923 (2012). After examining the flexible just cause standard enunciated in
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Carroll, the Warren Court determined that “not every instance of unacceptable
personal conduct as defined by the Administrative Code provides just cause for
discipline.” Id. at 382, 726 S.E.2d at 925. The Warren Court then articulated a three-
pronged approach to determine whether just cause exists to discipline an employee
who has engaged in unacceptable personal conduct:
We conclude that the best way to accommodate the
Supreme Court’s flexibility and fairness requirements for
just cause is to balance the equities after the unacceptable
personal conduct analysis. This avoids contorting the
language of the Administrative Code defining unacceptable
personal conduct. The proper analytical approach is to first
determine whether the employee engaged in the conduct
the employer alleges. The second inquiry is whether the
employee’s conduct falls within one of the categories of
unacceptable personal conduct provided by the
Administrative Code. Unacceptable personal conduct does
not necessarily establish just cause for all types of
discipline. If the employee’s act qualifies as a type of
unacceptable conduct, the tribunal proceeds to the third
inquiry: whether that misconduct amounted to just cause
for the disciplinary action taken.
Id. at 382-83, 726 S.E.2d at 925.
IV. Discussion
A. Substantial Evidence to Support Just Cause Determination (Whole
Record Test)
In her first challenge to ALJ Morrison’s Final Decision, Brewington makes a
series of arguments to support one principal assertion: that substantial evidence did
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not exist to justify her termination. We address each of Brewington’s arguments in
turn.
1. Brewington’s Motion to Dismiss
Brewington contends that ALJ Morrison erred when he denied Brewington’s
motion to dismiss at the close of DPS’s evidence. This argument is based upon a
single sentence taken from ALJ Morrison’s comments on DPS’s opposition to
Brewington’s motion: “I’m not entirely convinced you’ve shown just cause for her
termination . . . .”
In focusing on this one sentence, Brewington fails to provide crucial context.
The relevant exchange was as follows:
Mr. McGuinness: The Petitioner would respectfully move
to dismiss the case against her at this juncture, Your
Honor. . . . Our position is simple. The totality of the
evidence and the light most favorable to the Respondent
does not establish just cause as a matter of law. Thank
you.
The Court: Do you want to comment on it?
Ms. Strickland: I just want to state, Judge, I believe at this
stage that we have shown just cause and the light most
favorable to the Respondent’s evidence and ask that you
deny that motion.
The Court: Well, you haven’t gone -- you know, I’m not
entirely convinced you’ve shown just cause for her
termination, so therefore, you know, I want to hear from
the Petitioner, really. I think in a case like this I deserve
to. I’m having to hear this case and I’m not a polygraph or
anything like that. You weigh the evidence and determine
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credibility you’ve been talking about.
And there -- you know, I just deny your motion, and we’ll
take about 10 minutes.
A careful review of ALJ Morrison’s brief ruling on Brewington’s motion to dismiss
reveals a measured approach. ALJ Morrison was not entirely convinced that DPS
had shown just cause. Consequently, ALJ Morrison expressed to the parties that due
to the nature of the case, Brewington’s side of the story would be crucial to the
credibility determinations he would invariably have to make. Given this context, we
conclude that ALJ Morrison properly denied Brewington’s motion to dismiss.
2. Challenges to ALJ Morrison’s Findings of Fact
Brewington next argues that the following findings of fact contained in ALJ
Morrison’s Final Decision were not supported by substantial evidence: 11, 14, 15, 22,
23, 24, 28, 31, 32. Brewington also maintains that findings 23 and 24 contain
speculation.
We first note that the majority of ALJ Morrison’s findings are not challenged
and therefore are conclusively established on appeal. Koufman v. Koufman, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991) (“Where no exception is taken to a finding of fact
by the trial court, the finding is presumed to be supported by competent evidence and
is binding on appeal.”) (citation omitted). In addition, because finding of fact 11 is
the only finding that Brewington challenges with a specific argument, issues
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Opinion of the Court
concerning the remaining challenged findings have been abandoned. N.C. R. App. P.
28(b)(6) (2015).
Finding of fact 11 reads as follows:
During the lunch, Petitioner ordered two Special Mixed
Drinks which contained alcohol. They were pink in color
mixed drinks which were served in a “stemmed bowl-type
glass -- goblet style.” Petitioner drank one of the drinks
while eating lunch with Collier and ordered the second one
prior to Collier leaving the restaurant.
Brewington cites Sullivan’s statement to the SBI, in which Sullivan stated “she had
never served SA Brewington an alcoholic beverage.” This quotation was contained in
Brewington’s Exhibits 1 (the EAC Report) and 14 (the SBI’s summary of Sullivan’s
statement), both of which were offered into evidence before ALJ Morrison.
Brewington then asserts that her “evidence on this point was direct and corroborated
by two eye witnesses.” We presume that the “two eyewitnesses” to whom Brewington
refers are Sullivan and Mansfield. The EAC Report contained an excerpt of
Mansfield’s telephonic statement to the SBI, in which Mansfield indicated that no
alcohol was ordered on 3 September 2014; that he did not remember consuming
alcohol that day because he rarely did so; and that if he did consume alcohol, it would
have been one beer. After citing this evidence, Brewington asserts that “DPS’s
evidence on [her alleged consumption of alcohol] is assumption, speculation, and
inference, which is irrational to accept when nothing has disproved the direct
evidence.”
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As an initial matter, we recognize a significant flaw in Brewington’s argument:
Exhibit 1 was only before ALJ Morrison in a limited capacity, and ALJ Morrison
granted DPS’s motion to exclude Exhibit 14 from evidence. When DPS objected to
Exhibit 1 and moved to redact “hearsay statements”—presumably those of Sullivan
and Mansfield—contained in the EAC Report, ALJ Morrison noted that he would “not
find any facts based on [the report,]” and he overruled the objection. ALJ Morrison
then clarified that he would consider Exhibit 1 “for the fact that [Brewington] went
through the grievance procedure and she appealed [to] the [EAC], but then it went to
the Director of the SBI, and the Director of the SBI issued [inaudible].”
As to Exhibit 14, DPS argued that Sullivan’s statement to the SBI should be
excluded because she had not testified at the OAH hearing, and because her
statement contained inadmissible hearsay.4 ALJ Morrison excluded the exhibit from
evidence, but he did not address the issue of hearsay in his ruling. Rather, ALJ
Morrison explained that he would not allow Exhibit 14 into evidence because:
What . . . concerns me about that is that -- the paragraphs
-- she didn’t remember if she served alcohol to Brewington,
Liz, or Mike that day, but she said if alcohol was served,
then Mike would have been the one drinking the alcohol
that day.
And that’s -- I mean -- and plus if she was waiting on them,
she’s the one that gave them the ticket, the check, and took
the credit card, you assume, and charged them for three
4 DPS’s counsel did not expressly argue that the report should be excluded based upon hearsay
grounds, but that was the clear implication. Furthermore, Brewington’s counsel made arguments
against excluding Sullivan’s statement on hearsay grounds.
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beers and two mixed drinks. So I’m not going to allow that
one in. [T p 315]
Thus, ALJ Morrison determined that Sullivan’s statement was inconsistent and not
credible.
Our review of ALJ Morrison’s rulings on Exhibit 1 and Exhibit 14 reveals that
his consideration, if any, of portions of Sullivan’s and Mansfield’s statements (as set
forth in Exhibit 1) was extremely limited, and that he did not consider Sullivan’s full
statement (as set forth in Exhibit 14) at all. Because Brewington does not specifically
challenge these rulings,5 any issues related to those exhibits are abandoned. N.C. R.
App. P. 28(b)(6). Therefore, Brewington’s reliance on the aforementioned exhibits in
challenging finding of fact 11 is misplaced.
We now turn to the merits of Brewington’s challenge to ALJ Morrison’s
findings. Brewington specifically takes issue with the portion of finding of fact 11
stating that she “ordered two Special Mixed drinks which contained alcohol” and then
consumed them. The core of Brewington’s argument, however, is that any finding
that she consumed alcohol during lunch on 3 September 2014 is speculative at best
and unsupported by substantial evidence. In other words, no evidence before ALJ
Morrison proved that Brewington consumed alcohol. It bears repeating that
5 In at least two sections of her brief, Brewington does take issue with ALJ Morrison’s decision
to exclude Sullivan’s statement from evidence. However, Brewington focuses on exceptions to the
hearsay rule, and she does not make a specific, substantive argument as to why ALJ Morrison’s
exclusion of Exhibit 14 and the reasons he gave in support of that ruling were erroneous.
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“ ‘[s]ubstantial evidence’ means relevant evidence a reasonable mind might accept as
adequate to support a conclusion.” N.C. Gen. Stat. § 150B-2(8c). Thus, we are not
required to determine whether the evidence proved that Brewington consumed
alcohol, but whether it adequately supported ALJ Morrison’s inference in this regard.
This is a critical distinction. It also appropriate to note that “the ‘whole record’ test
is not a tool of judicial intrusion; instead, it merely gives a reviewing court the
capability to determine whether an administrative decision has a rational basis in
the evidence.” Carroll, 358 N.C. at 674, 599 S.E.2d at 903 (citation and quotation
marks omitted). With these principles in mind, we conclude that the following
constitutes substantial evidence in support of finding of fact 11.
Assistant Special Agent in Charge Cherry interviewed Collier on three
occasions regarding her recollection of what occurred at the Sports Zone on 3
September 2014. According to the written summaries of those interviews, Collier
observed Brewington order two “ ‘girly’ fruity” cocktail-style drinks during lunch. The
drinks, pinkish in color, were served in “goblet stemware glass[es].” Based on the
drink’s appearance, Collier assumed that it was an alcoholic beverage. Consequently,
after reviewing the lunch bill, Collier informed Brewington that she would pay for
the food but that her Pharmacy Board credit card could not be used to purchase
alcohol. Brewington did not indicate that the drinks she had ordered were non-
alcoholic. As Collier prepared to leave, a “white male” (Mansfield) arrived at the
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Opinion of the Court
Sports Zone and sat down with Brewington. Collier’s testimony at the OAH hearing
was materially consistent with the account that she gave to Assistant Special Agent
in Charge Cherry.
According to the written summary of Brewington’s interview with SBI
investigators, she: drank a Sprite Delight but did not consume any alcohol; indicated
that “Mansfield met Collier just before she left”; doubted that she paid for anything
that Mansfield ate or drank; stated that Mansfield “rarely” drank a beer or two; and
did not recall if Collier had paid for the lunch. However, after she was shown her 3
September 2014 receipt from the Sports Zone, Brewington agreed that her credit card
was used to pay for two mixed drinks and three beers, though she maintained that
she did not review her bill before leaving the Sports Zone.
In contrast, at the OAH hearing, Brewington testified that Mansfield arrived
sometime in the middle of her meal with Collier, and that Mansfield ordered a beer
when he sat down and ordered another beer during the meal. Brewington also
recalled that Mansfield ordered some kind of mixed drink. Collier testified, however,
that she did not recall any beer on the table, and if there had been, she would have
remembered seeing it.
In assessing all of this record evidence, ALJ Morrison noted the inconsistencies
between Brewington’s interview and her testimony. ALJ Morrison also found
Collier’s testimony regarding the timing of Mansfield’s arrival and whether Mansfield
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Opinion of the Court
ordered any alcohol before Collier’s departure to be more credible. Based on this
assessment, ALJ Morrison found in finding of fact 23 that Brewington’s testimony
that Mansfield
ordered and consumed all of the alcoholic beverages listed
on the Sports Zone receipt . . . is not credible, in that it is
not reasonable to believe that Mansfield ordered and/or
consumed three beers and two mixed alcoholic drinks in
the approximate 30 minute time period between 3:28 p.m.
when Collier paid her bill and left the restaurant, and 3:57
p.m. when Petitioner paid her bill.
After carefully reviewing the record and the Final Decision, we conclude that
finding of fact 11 as well as other findings stating that Brewington consumed alcohol
during her lunch with Collier are supported by substantial evidence. Although
evidence on the issue of Brewington’s alcohol consumption was conflicting, it was for
ALJ Morrison to resolve those conflicts, weigh the evidence, assess witness
credibility, and draw inferences from the facts. Carroll, 358 N.C. at 674, 599 S.E.2d
at 904. ALJ Morrison’s resolution of the material conflicts in the evidence has a
rational basis in the evidence presented, and we reject Brewington’s argument to the
contrary.
3. Conclusion of Law No. 8
Brewington also challenges conclusion of law no. 8 in ALJ Morrison’s Final
Decision, which states: “The following, per G.S. 150B-2(8c), constitutes substantial
evidence . . . that Petitioner consumed an alcoholic beverage during her September
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Opinion of the Court
14, 2014, lunch[.]” According to Brewington, the nine subparagraphs listed in
support of this conclusion are irrelevant, speculative, or favorable to Brewington.
After a careful review of Brewington’s contentions, we conclude that it is
unnecessary for us to address her individual attacks on each subparagraph listed in
support of conclusion of law no. 8. Some of the subparagraphs were not material to
the conclusion that Brewington consumed alcohol on 14 September 2014. In addition,
the subparagraphs that are material to this conclusion are restatements of findings
that ALJ Morrison made in the “Findings of Fact” section of the Final Decision. None
of those findings have been successfully challenged, and ALJ Morrison’s findings
support the conclusion that Brewington consumed alcohol while on duty. As such,
we reject her argument.
B. Brewington’s Integrity Evidence (Whole Record Test)
Brewington next argues that ALJ Morrison failed to consider “substantial
testimony from seven witnesses and dozens of pages of exhibits” concerning her
reputation for honesty and integrity. Beyond that, Brewington simply summarizes
portions of testimony given by her character witnesses. This argument is without
merit.
In the preamble to his Final Decision, ALJ Morrison specifically stated that:
In making the FINDINGS OF FACT, the undersigned
Senior Administrative Law Judge has weighed all the
evidence and has assessed the credibility of the witnesses
by taking into account the appropriate factors for judging
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credibility, including, but not limited to the demeanor of
the witness, any interests, bias, or prejudice the witness
may have, the opportunity of the witness to see, hear, know
or remember the facts or occurrences about which the
witness testified, whether the testimony of the witness is
reasonable, and whether the testimony is consistent with
all other believable evidence in the case.
Finding of fact 2 states, in part, that “[d]uring her career [Brewington] received very
favorable performance ratings in the area of Integrity . . . and five character witnesses
testified concerning her reputation for honesty.” The rest of finding of fact 2
acknowledges that Brewington “received several written warnings for inadequate job
performance and unacceptable personal conduct[,]” and that she was demoted in
March 2015. ALJ Morrison’s findings then addressed the material issues in the case:
whether Brewington consumed alcohol on 3 September 2014 and whether she was
forthright with SBI agents during the internal investigation interview on 20 May
2015. Testimony from the character witnesses was relevant to these issues. But the
probative value of the character testimony, if any, was for ALJ Morrison to determine,
and he had the prerogative to “accept or reject [that evidence] in whole or part[.]”
City of Rockingham, 224 N.C. App. at 239, 736 S.E.2d at 771.
Furthermore, the gravamen of Brewington’s argument, as we understand it, is
that ALJ Morrison did not consider this evidence. Yet the portions of the Final
Decision cited above reveal that the character evidence was considered, though not
to the extent (or to the positive effect) that Brewington would have preferred. ALJ
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Morrison assessed the credibility of the witnesses and considered evidence that
bolstered as well as detracted from Brewington’s reputation for honesty and integrity.
In addition, ALJ Morrison noted at the OAH hearing that none of Brewington’s
character witnesses had any knowledge concerning the events of 3 September 2014.
We cannot say that ALJ Morrison’s findings concerning Brewington’s character
evidence were legally deficient.6 Even assuming that ALJ Morrison should have
made more extensive findings on this evidence, it would not require reversal of the
Final Decision.
C. Incomplete Fact Finding (Whole Record Test)
Brewington next argues that ALJ Morrison failed to make sufficiently detailed
findings of fact on all of the relevant issues before him. The centerpiece of
6 In another section of her brief, Brewington repeats her argument that ALJ Morrison failed
to properly consider her character evidence, including Brewington’s past SBI performance
evaluations—completed by her supervisors—in which she scored high integrity ratings. We reject this
contention for the reasons stated above. Brewington further argues that Deputy Director Sutton
engaged in an arbitrary and incomplete decision-making process because she did not consider
Brewington’s previous high integrity ratings before issuing a dismissal recommendation to Director
Collier.
The record, however, belies any contention that Deputy Director Sutton’s decision was
arbitrary or based on inadequate methodology. Deputy Director Sutton testified that while she had
no reason to dispute “a particular supervisor’s findings” as to Brewington’s integrity, the SBI’s
“personnel evaluation system . . . required subjectivity in that you have to be familiar with the
employee[,]” and that in her experience, Brewington’s reputation for honesty and integrity among her
colleagues was “bad.” Deputy Director Sutton further testified that the most appropriate
considerations for her “extended beyond . . . the dimension of integrity” because her primary tasks
were to investigate the allegations of on-duty alcohol consumption and whether dismissal would be an
appropriate disciplinary action. In her discretion, Deputy Director Sutton determined that “given
what [she] was trying to accomplish,” she “did not feel that anything prior to the disciplinary actions
and the [internal] investigation . . . would shed light on the current decision to be made.” In sum, we
reject Brewington’s assertion that Deputy Director Sutton’s dismissal recommendation was arbitrary
and legally deficient under well-established just cause principles because of her decision not to
consider Brewington’s past evaluations for integrity.
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Brewington’s argument is a list of nine “areas of fact”—unsupported by specific
arguments—“where there was significant evidence before the Court in Brewington’s
favor but where . . . ALJ [Morrison] made no findings[,]” including “[t]he admitted
incompleteness of the [SBI’s internal] investigation[, t]he admitted spoliation of
evidence by the failure to record all evidence[,] . . . [t]he failure to consider the totality
of all evidence[,] . . . [t]he failure to consider the admitted arbitrariness in [DPS’s]
investigation[,] . . . [and t]he failure to allow the statement of Martha Sullivan in the
internal affairs file into evidence.” In another section of Brewington’s brief, she
makes a similar argument, asserting that the findings of fact “in numerous areas
lacked sufficient detail, were erroneous and [were] not predicated upon substantial
evidence.”
We reject these contentions for several reasons. To begin, the essence of this
argument is simply that ALJ Morrison should have made more findings and drawn
more inferences in Brewington’s favor. Brewington also fails to explain how and
when the SBI acknowledged deficiencies in or the arbitrariness of its investigation.
Instead, Brewington cites the proposed Final Decision that her counsel submitted to
ALJ Morrison following the contested case hearing. The proposed decision
necessarily contains Brewington’s own view of the record, and ALJ Morrison was not
obligated to find facts based on it. Finally, this Court has recognized that
administrative agencies and ALJs “need not make findings as to every fact which
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arises from the evidence and need only find those facts which are material to the
settlement of the dispute.” Craven Reg’l Med. Auth. v. N. Carolina Dep’t of Health &
Human Servs., 176 N.C. App. 46, 60, 625 S.E.2d 837, 845 (2006); see Collins v. N.
Carolina Dep’t of Health & Human Servs., 179 N.C. App. 652, 634 S.E.2d 641 (2006)
(observing that an ALJ “is not required . . . to find facts as to all credible evidence”
because “[t]hat requirement would place an unreasonable burden on the [ALJ,]” and
that, instead, the ALJ “must find those facts which are necessary to support its
conclusions of law”).
D. Just Cause Factors Contained in the State Personnel Manual (De
Novo)
Brewington’s next argument is that ALJ Morrison was required to make
findings on each and every just cause factor set forth in Section 7 of the North
Carolina Personnel Manual. According to Brewington, our Supreme Court “embraced
this approach” in Wetherington v. N. Carolina Dep’t of Pub. Safety, 368 N.C. 583, 780
S.E.2d 543 (2015).
In Wetherington, a trooper with the North Carolina State Highway Patrol was
dismissed for allegedly violating the agency’s truthfulness policy. Id. at 584, 780
S.E.2d at 544. Critically, the trooper’s commanding officer testified “at the OAH
hearing . . . that he decided to dismiss petitioner not based upon consideration of the
facts and circumstances of petitioner’s conduct, but instead because of his erroneous
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view that any violation of the [Highway] Patrol’s truthfulness policy must result in
dismissal.” Id. at 592, 780 S.E.2d at 547-48. In other words, the superior officer felt
that he had no discretion in determining what sanction to impose for a violation of
the agency’s truthfulness policy, “apparently regardless of factors such as the severity
of the violation, the subject matter involved, the resulting harm, the trooper’s work
history, or discipline imposed in other cases involving similar violations.” Id. at 592,
780 S.E.2d at 548. The Wetherington Court, however, “emphasize[d] that
consideration of these factors is an appropriate and necessary component of a decision
to impose discipline upon a career State employee for unacceptable personal
conduct[,]” and held that the trooper’s termination was made under a
misapprehension of the law:
The approach employed by Colonel Glover in applying a
fixed punishment of dismissal for any violation is
antithetical to the flexible and equitable standard
described in Carroll and is at odds with both the ALJ’s and
the SPC’s finding of fact that Colonel Glover exercised
discretion in reaching his decision to dismiss petitioner.
Application of an inflexible standard deprives management
of discretion. While dismissal may be a reasonable course
of action for dishonest conduct, the better practice, in
keeping with the mandates of both Chapter 126 and our
precedents, would be to allow for a range of disciplinary
actions in response to an individual act of untruthfulness,
rather than the categorical approach employed by
management in this case.
As such, by upholding respondent’s use of a per se rule of
mandatory dismissal for all violations of a particular
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Opinion of the Court
policy, the SPC failed to examine the facts and
circumstances of petitioner’s individual case as required by
this state’s jurisprudence.
Id. at 592-93, 780 S.E.2d at 548.
Although the primary holding in Wetherington was that public agency decision-
makers must use discretion in determining what disciplinary action to impose in
situations involving alleged unacceptable personal conduct, the Court did identify
factors that are “appropriate and necessary component[s]” of that discretionary
exercise. Id. at 593, 780 S.E.2d at 548.
Here, Brewington argues that ALJ Morrison failed to consider the factors set
out in Wetherington.7 After a careful review of ALJ Morrison’s Final Decision, we
conclude that the Wetherington factors were sufficiently addressed. ALJ Morrison’s
findings addressed the severity of the alleged misconduct (the SBI’s alcohol
consumption and truthfulness policies are mandatory), the subject matter, the
resulting harm, and the positive and negative portions of Brewington’s work history.
ALJ Morrison did not make a specific finding on the discipline imposed in other cases
involving similar violations, but his findings that Deputy Director Sutton “considered
the totality of circumstances regarding this disciplinary issue” and spoke “to several
7 Brewington’s specific argument is that Wetherington indicates that an ALJ must address
each and every factor listed in the State Personnel Manual concerning just cause for disciplinary
action. We refuse to read such a bright line rule into the Wetherington decision. Nevertheless, it
appears that the Wetherington factors are virtually identical to the ones listed in the State Personnel
Manual.
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SBI employees prior to recommending a decision to . . . Director Collier[,]” were
sufficient. We also note that, by way of comparison, the issue in Wetherington was
whether the trooper had lied about losing his “campaign hat,” id. at 585, 780 S.E.2d
at 544, whereas Brewington was accused of lying about drinking alcohol while on
official duty. Accordingly, for the reasons stated above, we reject Brewington’s
argument on this issue.
E. Adequacy of the SBI’s Internal Investigation (De Novo)
Next, Brewington argues that the SBI’s internal investigation into Collier’s
allegations was “defective because of inadequate methodology and effort[.]”
Brewington’s specific target is the summary of her internal investigation interview.
Referring to the method that Special Agent in Charge Perry used to record the content
of that interview as the SBI’s “rough note interview process[,]” Brewington asserts
that this interrogation technique produced a “cursory investigation” and led to the
“spoliation of evidence.” The essence of this argument is that Special Agent in Charge
Perry’s typewritten summary of Brewington’s internal investigation interview was
defective because the interview was not recorded on tape or video. According to
Brewington, “a simple tape recorder would have preserved all evidence.”
We conclude that Brewington’s contentions have no basis in law or fact. As
Special Agent in Charge Perry explained at the OAH Hearing, SBI policy precludes
agents from recording non-custodial interviews, such as ones that involve internal
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investigations. Brewington does not identify any laws requiring that internal
investigations concerning law enforcement personnel actions be recorded in any
specific fashion, and we are aware of none.
Furthermore, during the interview, Special Agent in Charge Perry—a veteran
SBI agent and head of the SBI’s Special Investigation Unit—took handwritten notes
on Brewington’s responses as she gave them. Assistant Special Agent in Charge
Cherry, who was present during the entire interview, confirmed that Special Agent
in Charge Perry’s typewritten summary was an accurate reflection of Brewington’s
answers to the questions posed. Brewington fails to specify what evidence or
information was lost or destroyed due to the method by which her interview was
documented, and we decline to speculate on this issue. Accordingly, this argument is
without merit.
F. Alleged Arbitrariness of the Internal Investigation and
Brewington’s Termination (Whole Record Test)
Brewington’s next argument is based on her disclosure to Special Agent in
Charge Perry and Assistant Special Agent in Charge Cherry that she was prescribed
certain medications for multiple medical conditions. Citing this Court’s decision in
Bulloch v. N. Carolina Dep’t of Crime Control & Pub. Safety, 223 N.C. App. 1, 732
S.E.2d 373 (2012), Brewington contends that the SBI “should have used available
testing to determine if [she] was experiencing a relevant medical, psychological,
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alcohol related or other issue.” Brewington holds the position that the internal
investigation and her eventual termination were arbitrary and capricious.
In Bulloch, the petitioner had been diagnosed with depression and bipolar
disorder during his tenure with the North Carolina State Highway Patrol. Id. at 2,
732 S.E.2d at 376. Sometime after being taken off of his depression medication and
placed on lithium to treat his bipolar condition, the petitioner’s employment was
terminated due to an incident during which he held his girlfriend’s arm behind her
back until she cried, threatened to kill himself, and then fired a round from his service
weapon into his bedroom floor. Id. In the contested case hearing in the OAH, an ALJ
concluded that just cause did not exist to support the petitioner’s termination for
unacceptable personal conduct because the decision was, inter alia, “arbitrary and
capricious because it failed to consider a known, underlying medical condition[.]” Id.
at 3, 732 S.E.2d at 376 (internal quotation marks omitted). The State Personnel
Commission (SPC) adopted this conclusion.
On appeal to this Court, the Department of Public Safety argued that the SPC’s
conclusion concerning the petitioner’s medical condition was erroneous. The Bulloch
Court recognized the general rule that whether just cause exists for termination
depends “upon an examination of the facts and circumstances of each individual
case.” Id. at 7, 732 S.E.2d at 379 (citation omitted). The Court then concluded that
the record as well as the relevant findings “clearly support[ed] the SPC’s conclusion
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that the underlying causes of [the petitioner’s] conduct were not fully considered by
the Department before termination.” Id. at 15, 732 S.E.2d at 383.
Unlike the situation in Bulloch, there is no indication that Brewington’s
medical conditions or the medicines she takes to control them were related to the
conduct that caused her dismissal. Specifically, there is no suggestion that
Brewington’s medical conditions or medications resulted in her alleged consumption
of alcohol while she was on duty or affected her ability to be forthright during the
internal investigation. Consequently, Bulloch is inapposite and we reject
Brewington’s argument to the contrary.
G. Due Process of Law (De Novo)
Brewington next argues that she was denied due process of law in two ways.
First, Brewington contends that she was not given sufficient notice of the date of her
alleged offense. Second, Brewington asserts that the EAC’s refusal to allow her to
present live witness testimony from Sullivan and Mansfield during her internal
grievance hearing impeded her right to “present a defense.” Once again, we are not
persuaded.
It is well established that career State employees enjoy a property interest in
continued employment. This property interest is created by state law, N.C. Gen. Stat.
§ 126-35(a), and is guaranteed by the Due Process Clauses of the Fifth and the
Fourteenth Amendments to the United States Constitution. Peace v. Employment
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Sec. Comm’n of N. Carolina, 349 N.C. 315, 322, 507 S.E.2d 272, 277-78 (1998);
Leiphart v. North Carolina School of the Arts, 80 N.C. App. 339, 348-349, 342 S.E.2d
914, 921, cert. denied, 349 S.E.2d 862, 318 N.C. 507 (1986); Pittman v. Dep’t Of Health
And Human Servs., 155 N.C. App. 268, 272-73, 573 S.E.2d 628, 632 (2002), overruled
on other grounds sub nom. Pittman v. N. Carolina Dep’t Of Health And Human Servs.,
357 N.C. 241, 580 S.E.2d 692 (2003). “The touchstone of due process is protection of
the individual against arbitrary action of government[.]” Wolff v. McDonnell, 418
U.S. 539, 558, 41 L. Ed. 2d 935, 952 (1974) (citation omitted). The doctrine of
procedural due process restricts governmental actions that “deprive individuals of
‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the
Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 47 L. Ed.
2d 18, 31 (1976).
“The fundamental premise of procedural due process protection is notice and
the opportunity to be heard.” Peace, 349 N.C. at 322, 507 S.E.2d at 278 (citing
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 84 L. Ed. 2d 494, 503 (1985)).
“Moreover, the opportunity to be heard must be ‘at a meaningful time and in a
meaningful manner.’ ” Id. (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed.
2d 62, 66 (1965)). This Court has summarized these essential requirements as
follows:
Under federal due process an employee’s property interest
in continued employment is sufficiently protected by a pre-
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termination opportunity to respond, coupled with post-
termination administrative procedures. Further, the
federal due process concern for fundamental fairness is
satisfied if the employee receives 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. To interpret the minimal protection of fundamental
fairness established by federal due process as requiring
more than this . . . would intrude to an unwarranted extent
on the government’s interest in quickly removing an
unsatisfactory employee.
Owen v. UNC-G, 121 N.C. App. 682, 686, 468 S.E.2d 813, 816 (1996) (internal
citations and quotation marks omitted). However, these general federal due process
protections must be satisfied in addition to the more specific notice requirements of
N.C. Gen. Stat. § 126-35(a), which provides:
No career State employee . . . shall be discharged . . . except
for just cause. In cases of such disciplinary action, the
employee shall, before the action is taken, be furnished
with a statement in writing setting forth the specific acts
or omissions that are the reasons for the disciplinary action
and the employee’s appeal rights.
This Court has held that the written notice required by section 126-35(a) must
include a sufficiently particular description of the “incidents [supporting disciplinary
action] . . . so that the discharged employee will know precisely what acts or omissions
were the basis of his discharge.” Employment Security Comm. v. Wells, 50 N.C. App.
389, 393, 274 S.E.2d 256, 259 (1981). This “statutory requirement of sufficient
particularity[,]” Owens, 121 N.C. App. at 687, 468 S.E.2d at 817, cannot be satisfied
if the public employer fails to provide names, dates, or locations, as this information
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Opinion of the Court
is necessary to allow the employee “to locate [the] alleged violations in time or place,
or to connect them with any person or group of persons.” Wells, 50 N.C. App. at 393,
274 S.E.2d at 259.
In the present case, it was initially reported that the incident at the Sports
Zone occurred in July 2014. Furthermore, the letter notifying Brewington that she
was the subject of an internal investigation incorrectly identified the date in question
as being “in or around January 2015.” Even so, Special Agent in Charge Perry
explicitly dispelled any confusion concerning the date of the alleged offense when he
notified Brewington that Collier’s allegations pertained to the lunch that took place
on 3 September 2014. Special Agent in Charge Perry made this clarification before
questioning Brewington, and she neither asked for more time to prepare for the
interview nor indicated that she was confused as to the date of the allegations. By
the time that Brewington received the letter requiring her attendance at the pre-
disciplinary conference, there was no confusion as to the date that corresponded to
Collier’s allegations. The notice given to Brewington concerning the date of the
alleged conduct was not constitutionally infirm, as the initial erroneous dates did not
impede her ability to respond at a meaningful time. Brewington’s pre-termination
due process rights were not compromised. Furthermore, because section 126-35(a)’s
sufficient particularity requirement was met well before the pre-disciplinary
conference occurred, Brewington’s ability to fully prepare for the conference was not
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Opinion of the Court
prejudiced.
Brewington’s second argument is that she was deprived “of the procedural due
process protection provided by the State’s internal grievance system” when the EAC
refused to allow live testimony from Mansfield and Sullivan. Given the statutory
post-termination procedures afforded Brewington, we discern no due process
violation of any kind. Precedent from our Supreme Court indicates that a career
State employee’s procedural due process rights, at least as they pertain to post-
termination procedures, are fully protected by the opportunities to pursue a contested
case hearing before an ALJ in the OAH and to obtain judicial review of the ALJ’s
Final Decision in the appellate division. See Peace, 349 N.C. at 327, 507 S.E.2d at
280-81 (observing that “[a] terminated State employee may avail himself not only of
administrative review incorporating full discovery of information and an evidentiary
hearing, but may also obtain judicial review of the final agency decision[,]” and
concluding “that this procedure fully comports with the constitutional procedural due
process requirements mandated by the Fourteenth Amendment, and no additional
safeguards are needed to avoid erroneous deprivation”) (emphasis added). Moreover,
nothing suggests that the denial of Brewington’s request to present live testimony
before the EAC deprived her of a fair hearing. Indeed, the SBI’s written summaries
of Mansfield’s and Sullivan’s statements were considered by the EAC and were cited
in its memorandum recommending the reversal of Brewington’s dismissal.
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Consequently, we conclude that the EAC hearing fully met procedural due process
requirements.
Nonetheless, Brewington further contends that ALJ Morrison “erroneously did
not admit [Sullivan’s statement to the SBI] despite [the fact] that it was part of the
investigation and admissible under [various exceptions to the rule against hearsay.]”
As explained above, however, Sullivan’s statement was not excluded from the OAH
evidentiary record on hearsay grounds; rather, the statement was excluded due to
ALJ Morrison’s concerns over the credibility and probative value of the statement
itself. Brewington does not specifically challenge this ruling on appeal, and even if
she did, procedural due process concerns would not be implicated. The record reveals
that while Brewington subpoenaed Sullivan to testify at the OAH proceeding,
Sullivan did not appear at the contested case hearing. As such, Brewington was in
no way denied the right to present a defense.
H. SBI Director’s Failure to Testify at OAH Hearing (De Novo)
Next, Brewington argues that Deputy Director Sutton’s testimony at the OAH
hearing was insufficient to establish which just cause factors were considered by
Director Collier. More specifically, Brewington contends that because Director
Collier—who was the ultimate decision-maker responsible for Brewington’s
dismissal—did not testify, “the ALJ and this Court were deprived of Director Collier’s
consideration, if any, of the required just cause factors[.]” We are not persuaded.
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Opinion of the Court
Our research reveals no absolute requirement that the person who makes the
final decision to discipline a public employee must testify at a contested case hearing.
Furthermore, if Director Collier had been unavailable to make the final
determination upholding Brewington’s dismissal, Deputy Director Sutton would have
been authorized to make the decision herself. Deputy Director Sutton’s testimony
was also particularly relevant, as she was responsible for both reviewing the
information concerning Brewington’s alleged unacceptable personal conduct and
consulting with Director Collier to reach a decision in the matter. The 11 June 2015
letter informing Brewington of her dismissal, which was signed by Deputy Director
Sutton on behalf of Director Collier, explained the specific considerations that led to
the SBI’s decision. Brewington’s counsel was free to cross-examine Deputy Director
Sutton on these issues, and he did so extensively. The record is replete with the
factors that resulted in Brewington’s dismissal, and the Final Decision reflects ALJ
Morrison’s consideration of them. As a result, ALJ Morrison was presented with all
the information that was necessary to determine whether Brewington’s actions
constituted just cause for her dismissal. Brewington’s argument is without merit.
V. Conclusion
In closing, we recognize that this case has raised concerns in the law
enforcement community, a group worthy of all citizens’ gratitude and respect. In its
amicus brief, the Fraternal Order of Police contends that Brewington was deprived
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Opinion of the Court
of fundamental due process protections when Mansfield and Sullivan were not
allowed to testify at the EAC hearing, as well as when ALJ Morrison excluded
Sullivan’s statement from evidence in the contested case hearing. The Fraternal
Order of Police also urges us to hold that the decision-maker of a public employer
must consider all pertinent just cause factors contained in the State Personnel
Manual before disciplining a public employee. We have addressed these issues above.
Even so, we acknowledge that this case involved accusations that ultimately
had to be proved or disproved through a large body of conflicting evidence. ALJ
Morrison was charged with making credibility determinations, drawing inferences,
and finding material facts. After a careful review of the record, we conclude that ALJ
Morrison’s findings, which are supported by substantial evidence, support his
conclusions that Brewington consumed alcohol while on duty and that she was
untruthful during the SBI’s internal investigation. We further conclude that, under
the circumstances of this case, Brewington’s violations of SBI policy constituted just
cause for her dismissal based on unacceptable personal conduct. Accordingly, we
affirm ALJ Morrison’s Final Decision in its entirety.
AFFIRMED.
Judge HUNTER, JR. concurs.
Chief Judge McGee concurs by separate opinion.
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No. COA16-913 – Brewington v. N.C. Dept. of Pub. Safety
McGEE, Chief Judge, concurring with separate opinion.
I fully concur in the result, but write separately to note that I disagree with
the statement of law that “Section 150B-51 of our State’s Administrative Procedure
Act (APA) establishes the scope and standard of review that we apply to the final
decision of an administrative agency.” Although the majority opinion correctly cites
Harris v. N.C. Dep't of Pub. Safety, __ N.C. App. __, __, 798 S.E.2d 127, 132 (2017), in
support of this statement of law, I dissented from the majority opinion in Harris, and
Harris is currently on appeal to our Supreme Court. As I more fully discussed in
Harris, I believe N.C. Gen. Stat. § 126-34.02 provides “adequate procedure for judicial
review” of the decision of the ALJ and, for this reason, N.C. Gen. Stat. § 150B-51 does
not apply. Id. at __, 798 S.E.2d at 140-41 (citing N.C. Gen. Stat. § 150B-43 (2015)).