Bulloch v. North Carolina Department of Crime Control & Public Safety

732 S.E.2d 373, 223 N.C. App. 1, 2012 WL 4497349, 2012 N.C. App. LEXIS 1135
CourtCourt of Appeals of North Carolina
DecidedOctober 2, 2012
DocketNo. COA12-115
StatusPublished
Cited by10 cases

This text of 732 S.E.2d 373 (Bulloch v. North Carolina Department of Crime Control & Public Safety) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bulloch v. North Carolina Department of Crime Control & Public Safety, 732 S.E.2d 373, 223 N.C. App. 1, 2012 WL 4497349, 2012 N.C. App. LEXIS 1135 (N.C. Ct. App. 2012).

Opinion

STEPHENS, Judge.

On 6 May 2005, Wade Bryan Bulloch, who at the time was a Line Sergeant with the North Carolina Highway Patrol (the “NCHP”), a division of the North Carolina Department of Crime Control and Public Safety (the “Department), was dismissed from his employment on grounds of unacceptable personal conduct. On 26 July 2005, Bulloch challenged his dismissal by filing with the Office of Administrative Hearings (the “OAH”) a petition for a contested case hearing against the Department. Bulloch’s case was heard in the OAH on 29 and 30 July 2009 and 4 August 20091 before Administrative Law Judge Beecher R. Gray (“ALJ Gray”).

The evidence before ALJ Gray tended to show the following: Bulloch served with the NCHP from 1989 until his dismissal in 2005. During his tenure with the NCHP, Bulloch earned an exemplary service record and “always ha[d] been in good standing and [] never [] had any adverse action or punishment.” Moreover, appraisals of Bulloch’s job performance, which were admitted into evidence, “demonstrate[d] substantial and consistent very high conduct ratings.”

In 1997, Bulloch was diagnosed with depression, and in 2003, with bipolar disorder. In early December 2004, Bulloch’s physician took Bulloch off his medication for depression and thereafter prescribed lithium for Bulloch’s bipolar condition. In the evening of 14 December 2004, Bulloch took his first recommended dosage of lithium. Later that night, when off duty, Bulloch consumed some alcohol and attended the NCHP Christmas party with his girlfriend. At the party, Bulloch consumed more alcohol before attempting to dance with his girlfriend. When his girlfriend resisted, Bulloch employed a “defensive tactic” “taught by the [NCHP]” and “moved [his girlfriend’s] arm behind her back so as to bring her along with him.” His girlfriend began to cry and indicated Bulloch was hurting her. Bulloch then “stopped his efforts at dancing,” and he and his girlfriend left the party.

Upon leaving the party, Bulloch “became frustrated and very emotional,” and his girlfriend told him that she was leaving him. At [3]*3home, Bulloch “began to break down,” “became suicidal],] and took two [] sleeping pills.” Bulloch retrieved his service weapon and threatened to kill himself in front of his girlfriend. When Bulloch’s girlfriend left the room, Bulloch “placed [his service pistol] to his temple but then removed it and discharged one round into the floor of his bedroom.” When his girlfriend returned to the bedroom, Bulloch told her he had taken the entire bottle of sleeping pills. Bulloch’s girlfriend called 911, and Bulloch was transported to the hospital. Shortly thereafter, Bulloch was relieved of duty “for medical reasons.”

After his hospitalization, Bulloch returned to limited duty and was set to undergo a “fitness-for-duty” medical examination, which had been requested by Dr. Thomas Griggs, the NCHP medical director, and ordered by NCHP Commander Colonel William Fletcher Clay, Jr. Before that examination was performed, however, Colonel Clay terminated Bulloch’s employment.

Dr. Moira Artigues, an expert in the field of forensic psychiatry who conducted a forensic evaluation of Bulloch, testified at the hearing that Bulloch’s behavior during the incident “had a medical basis” and was caused by “[b]ipolar [disorder and associated medications.”

Based on the foregoing evidence, ALJ Gray concluded in a 15 January 2010 order that termination of Bulloch’s employment for unacceptable personal conduct (1) “was based upon an incomplete investigation and decision-making process”; (2) “was violative of [NCHP’s] own rules and order of [Colonel Clay]”; (3) “was arbitrary and capricious because it failed to consider a known, underlying medical condition”; and (4) “is not supported by substantial evidence constituting just cause.” Thus, ALJ Gray decided that Bulloch was entitled to reinstatement.

Thereafter, in a decision and order dated 13 July 2010, the State Personnel Commission (the “SPC”) adopted ALJ Gray’s findings, conclusions, and decision and ordered that Bulloch be reinstated.

On 13 August 2010, the Department sought judicial review of the SPC’s decision and order in Wake County Superior Court. On judicial review of an agency’s final decision, a trial court may reverse or modify such a decision only if the trial court determines that the substantial rights of the party seeking review have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are:

[4]*4(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence ... in view of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.

N.C. Gen. Stat. § 150B-51(b) (2009); see also N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 658-59, 599 S.E.2d 888, 894 (2004). In this case, after a 1 August 2011 hearing before the Honorable Howard E. Manning, Jr., the trial court reviewed the SPC’s decision and order, concluded that the Department’s rights were not prejudiced by any of the errors listed above, and affirmed the SPC’s decision and order. From that order, the Department appeals to this Court.

On appeal from a trial court’s review of a final agency decision, an appellate court’s task is to examine the trial court’s order for error of law by “(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) determining whether the court did so properly.” Holly Ridge Assocs., LLC v. N.C. Dep’t of Env’t & Natural Res., 361 N.C. 531, 535, 648 S.E.2d 830, 834 (2007). For errors alleged regarding violations of subsections 150B-51(b)(l) through (4), the appellate court engages in de novo review; for errors alleged regarding violations of subsections 150B-51(b)(5) or (6), the “whole record test” is appropriate. Carroll, 358 N.C. at 659-60, 599 S.E.2d at 895. The Department concedes that the trial court exercised the appropriate scope of review. Thus, our review of the trial court’s decision is limited to whether the trial court erroneously applied that scope of review, i.e., whether the court correctly concluded that the Department’s rights were not prejudiced by any of the errors listed in section 150B-51(b).

The Department’s overarching argument on appeal is that the trial court erred by concluding that the SPC properly determined that the Department did not have just cause to dismiss Bulloch from employment. The Department contends that the SPC’s ultimate conclusion that the Department lacked just cause was itself erroneous and also that many of the SPC’s supporting findings of fact and con[5]*5elusions of law were erroneous such that the just cause conclusion should be reversed. For the following reasons, we are unpersuaded.

As recently held by this Court in Warren v. N.C. Dep’t of Crime Control & Pub. Saftey, _N.C. App.

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732 S.E.2d 373, 223 N.C. App. 1, 2012 WL 4497349, 2012 N.C. App. LEXIS 1135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bulloch-v-north-carolina-department-of-crime-control-public-safety-ncctapp-2012.