Davis v. North Carolina Department of Human Resources

432 S.E.2d 132, 110 N.C. App. 730, 1993 N.C. App. LEXIS 665
CourtCourt of Appeals of North Carolina
DecidedJuly 6, 1993
Docket928SC372
StatusPublished
Cited by13 cases

This text of 432 S.E.2d 132 (Davis v. North Carolina Department of Human Resources) 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
Davis v. North Carolina Department of Human Resources, 432 S.E.2d 132, 110 N.C. App. 730, 1993 N.C. App. LEXIS 665 (N.C. Ct. App. 1993).

Opinions

LEWIS, Judge.

The main issue presented by this appeal is whether the trial court erred in upholding the State Personnel Commission’s dismissal of Glenda Davis (hereafter “appellant”). On the facts before us, we hold that substantial evidence was presented in the record to warrant appellant’s dismissal for personal misconduct and we affirm the decision of the trial court.

The evidence presented below tended to show that appellant was employed at the O’Berry Center in Goldsboro, as a Health Care Technician II. Appellant had worked at the O’Berry Center for three and a half years and had not received any prior disciplinary action. However, on 21 January 1988, appellant and Kim Middleton (“Middleton”), a teacher at the O’Berry Center, were assigned to drive three of the Center’s residents in a State owned van on a lunch trip to a nearby Burger King. The purpose of such trip was to enhance the residents’ interactive and social skills by allowing them to purchase their own food and to eat in a restaurant. Without permission, appellant improperly included a fourth resident on the trip. On the way to lunch, one of the residents acted in a disruptive manner that frustrated the purpose of the trip. As a result appellant and Middleton decided to cancel the lunch excursion to the Burger King and instead had the residents eat their lunch in the van. Since the lunch trip had been cut short, appellant decided to take the residents sightseeing. According to appellant, she then proceeded to drive the State van toward Kinston, where she turned around at the Sandpiper Restaurant and returned [733]*733to the O’Berry Center. When appellant returned to the O’Berry Center, the odometer in the van revealed that she had driven 58 miles, whereas the trip to the Burger King should have only covered 12 miles.

Upon returning to the Center, Middleton was late for a 1:00 class. This was communicated to Valnolia Cox, an administrator at the Center, who inquired of Middleton as to the reason for her tardiness. Middleton told Cox that appellant had driven the van to a mobile homes sales lot where she talked to a sales representative for approximately ten minutes before returning to the Center. Cox undertook her own investigation into the matter and had the route retraced. Managers from the O’Berry Center concluded that if appellant had turned around at the Sandpiper Restaurant, then her total mileage would have been significantly less than 58 miles. In contrast, however, had appellant driven to the mobile home sales lot and returned, then the total mileage would have been almost exactly 58 miles.

On the basis of this investigation, Cox concluded that appellant had knowingly misused State property in violation of the Personal Conduct section of the State Personnel Manual. Appellant was dismissed without warning effective 9 January 1988 for her misconduct.

Following established procedures, appellant then filed a petition with the Office of Administrative Hearings to have her case reviewed. Although, the State contends that appellant’s petition was not timely filed because it lacked a verification, the administrative law judge disagreed and conducted a full hearing on the merits. The administrative law judge issued her Recommended Decision on 18 August 1989 with findings of fact and conclusions of law that appellant had used poor judgment in logging the excessive mileage. The administrative law judge also concluded that the testimony of Middleton and appellant was inconsistent, but perceived appellant to be more credible. However, since the evidence was in such conflict, the administrative law judge ultimately concluded that the State had failed in its burden of proof and that appellant should be reinstated with back pay.

This case came before the Full State Personnel Commission on 20 June 1990. The Personnel Commission adopted all of the findings of fact made by the administrative law judge as well as the majority of the administrative law judge’s conclusions of law. [734]*734However the Personnel Commission specifically declined to accept the administrative law judge’s recommended decision and ordered that appellant’s dismissal be upheld.

A Petition for Judicial Review was filed in the Superior Court of Wayne County on 26 July 1990. The Superior Court upheld the decision of the State Personnel Commission, concluding that substantial evidence existed in the record to support appellant’s termination. Appellant has appealed to this Court.

When reviewing the decision of a Superior Court judge in his review of an administrative decision, this Court must determine “whether the trial court failed to properly apply the review standard articulated in N.C. Gen. Stat. § 150B-51.” Walker v. North Carolina Dep’t of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 353, disc. rev. denied, 328 N.C. 98, 402 S.E.2d 430 (1990). In addition, this Court’s review is further limited to those errors and exceptions which have been assigned to the superior court’s order. Id. N.C.G.S. § 150B-51 (1991) provides:

(b) Standard of Review.— After making the determinations, if any, required by subsection (a), the court reviewing a final decision may affirm the decision of the agency or remand the case for further proceedings. It may also reverse or modify the agency’s decision if the substantial rights of the petitioners may have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are:
(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 admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted, or
' (6) Arbitrary or capricious.

If it is alleged that an error of law occurred, then the proper standard of review is de novo. Walker, 100 N.C. App. at 502, 397 S.E.2d at 354. If however, the decision is challenged as being con[735]*735trary to the evidence, or arbitrary or capricious, then the whole record test is used. Id. It is not clear whether appellant has challenged the sufficiency of the evidence to support the Personnel Commission’s decision or whether she has alleged that the Personnel Commission committed an error of law. Therefore, in our discretion, we have undertaken both a de novo review of the Personnel Commission’s conclusions of law, as well as a review of the whole record to determine whether sufficient evidence existed to support appellant’s termination for just cause.

A.

The only possible error of law which appellant could have challenged is the Personnel Commission’s conclusion that appellant’s excessive mileage was a misuse of State property and constituted just cause for dismissal. Pursuant to N.C.G.S. § 126-35 (1991), a permanent state employee, subject to the State Personnel Act, may not be dismissed for disciplinary reasons except for just cause. To aid in the disciplinary process, the State Personnel Manual divides conduct into two categories: 1) inadequate performance of duties (job performance); and 2) personal conduct detrimental to State service (personal conduct).

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Davis v. North Carolina Department of Human Resources
432 S.E.2d 132 (Court of Appeals of North Carolina, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
432 S.E.2d 132, 110 N.C. App. 730, 1993 N.C. App. LEXIS 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-north-carolina-department-of-human-resources-ncctapp-1993.