IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-561
No. COA20-604
Filed 19 October 2021
Office of Administrative Hearings, No. 19 OSP 04910
ANNETTE LOCKLEAR, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Respondent.
Appeal by petitioner from final decision entered 18 May 2020 by
Administrative Law Judge Tenisha S. Jacobs in the Office of Administrative
Hearings. Heard in the Court of Appeals 25 May 2021.
Jennifer J. Knox, for petitioner-appellant.
Attorney General Joshua H. Stein, by Assistant Attorney General Christopher R. McLennan, for respondent-appellee.
STROUD, Chief Judge.
¶1 Annette Locklear (“Petitioner”) appeals from a final decision by an
administrative law judge (“ALJ”) following a contested case hearing that found the
North Carolina Department of Agriculture and Consumer Services (“the
Department” or “Respondent”) had just cause to dismiss Petitioner from her career
state employment for unacceptable personal conduct. Petitioner first argues her
actions did not constitute unacceptable personal conduct. Then, Petitioner argues LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
Opinion of the Court
even if her actions were unacceptable personal conduct, Respondent still did not have
just cause to dismiss her. Because after de novo review we determine Petitioner
engaged in unacceptable personal conduct providing just cause to dismiss her, we
affirm.
I. Background
¶2 The uncontested Findings of Fact in this case show Petitioner worked for the
Department’s1 Structural Pest Control and Pesticides Division, Structural Pest
Control Section, which enforces the Structural Pest Control Act of North Carolina of
1955, North Carolina General Statute § 106-65 (2019), prior to her dismissal for
unacceptable personal conduct. At the time of the conduct at issue, John Feagans
managed the unit as Petitioner’s direct supervisor; Nicky Mitchell was a co-worker of
Petitioner with the same duties; and James Burnette, Jr. was the director of the
division. Alongside those people, Petitioner’s job was to assist with “the licensing and
certification of individuals authorized to perform structural pest control” work in the
state. As relevant here, Petitioner processed annual license renewal applications
using the Agricultural Regulatory System (“the System”).2
¶3 The Findings of Fact describe the importance of the System:
17. The accuracy of the information in the AgRSys is critically important given that it is relied upon by
1 In the ALJ’s Findings of Fact, the Department is abbreviated “NCDA&CS.” 2 In the ALJ’s Findings of Fact, the System is abbreviated “AgRSys.” LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
NCDA&CS in regulating the structural pest control industry, members of the structural pest control industry that require a license/card in order to work, and members of the public. (TI pp 28-30, 106-06, 232-33; TII pp 307-09) 18. In explaining the importance of the AgRSys, Mr. Feagans testified: [W]ith my job as the manager of the licensing system, there is no more important factor than our licensing system is accurate. There are too many people that rely on the information in this licensing system both in our office, out in the field, or the general public. And considering we’re licensing people to do something potentially dangerous, as far as applying pesticides, we need to have a resource that we know the qualifications, whether they’re legal and -- and in compliance when they make these applications, and any other information.
But it has to be reliable. We have to be able to go to this system and trust the information in it . . . (TI pp 105-06) 19. Errors in the AgRSys can reflect negatively on NCDA&CS and hinder the ability of NCDA&CS employees to complete their investigations and determine if violations of the law have occurred. (TI pp 30, 233; TII p 310) Additionally, maintaining inaccurate records that handles public funds (the renewal fees) could subject NCDA&CS to adverse internal/external audit findings. (TI p 109; TII p 310)
(Alteration in original).
¶4 Petitioner’s conduct at issue in this case related to a specific license renewal
application and the related information in the System. On 11 June 2018, Petitioner
received a renewal application from Pest Management Systems, Inc. (“the Company”)
along with a $2,260 check (Check #41569) to cover the cost of renewal. When the LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
Company had not heard about the status of its application by 20 June—well beyond
the expected three to four day time period to process a renewal even during the busy
renewal season—it called and reached Petitioner’s co-worker Mitchell. Mitchell was
unable to find the original renewal application, so with the renewal deadline looming,
she told the Company to resubmit its application along with a new check and
informed her supervisor, Feagans, about her actions, although Mitchell did not
communicate with Petitioner. After receiving the application and a new $2,260 check
(Check #41656), Mitchell processed the renewals, deposited the new check, and
updated the information in the System on 26 June 2018.
¶5 Once Mitchell had completed the Company’s license renewals, the System
would reflect the renewals when anyone looked at it. In order to prevent issues after
a renewal had already been processed, the Department also implemented multiple
failsafe mechanisms. First, the System would show an error message to anyone
attempting to proceed with a duplicate renewal and then prohibit such duplicate
renewal. Second, the Department had paper files where an employee could look to
determine if renewals had been processed when they received an error message from
the System. Third, once renewals had been processed, only the IT Department could
change the pertinent information in the System. Petitioner and Mitchell further both
knew they were only to contact IT after notifying their supervisor, Feagans, a fact of
which Petitioner had been reminded as recently as 11 June 2018. Given these fail LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
safes:
[h]ad Petitioner, or anyone else, attempted to process the Pest Management Systems, Inc. renewals after Ms. Mitchell had already done so on 26 June 2018, it would be obvious that these licenses/cards had already been renewed and that depositing an additional check would result in the company being erroneously billed a second time. (Tl pp 209-12, 225-28, 231)
¶6 Despite those fail safes, and without notifying her supervisor as required, on 2
July 2018, Petitioner contacted IT to request the check number for the Company’s
renewal be changed in the System to reflect the check she had originally received,
Check #41569. After IT made the requested changes, Petitioner undertook a series
of actions that led to the System reflecting false information and the Department
overbilling the Company by $2,260:
50. Following IT making the changes requested by Petitioner, the AgRSys “ReceiptNumber” listed Check #41569 as having been used to process the 38 license/card renewals for Pest Management Systems, Inc. on 26 June 2018. (Resp. Ex. 7) Additionally, as a result of the changes in the AgRSys requested by Petitioner, there was no record of Check #41656 in the system and anyone attempting to search for that check number would be unable to locate it. (TI p 61) 51. At the hearing, Petitioner admitted that, following her requested changes, the AgRSys would have shown that Check #41569 was used to issue the Pest Management Systems, Inc. renewals on 26 June 2018 and that she did not issue those licenses/cards on that date. (TII pp 468-69) 52. The evidence does show, and the Undersigned does find, that following Petitioner’s requested changes to the AgRSys, the information reflected in the AgRSys for the LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
altered records was false. 53. Given the multiple failsafe mechanisms, and the abundance of information available to Petitioner indicating that the renewals for Pest Management Systems, Inc. had already been renewed, the evidence does show, and the Undersigned does find that Petitioner knowingly falsified records in the AgRSys by her 2 July 2018 request for IT to change the Check Number associated with the renewals at issue. 54. After receiving the notification from IT that her requested changes had been made, Petitioner deposited Check #41569 on 3 July 2018 (22 days after it was originally assigned to her for processing). (Resp. Ex. 4 and 8) 55. By depositing Check #41569 on 3 July 2018, Petitioner over-billed Pest Management Systems, Inc. by $2,260.
¶7 On 7 August 2018, the Company realized it had been double billed and called
Mitchell to report the problem. After Mitchell came to him to ensure the Company
received a refund, Feagans began investigating. While Feagans originally believed
Mitchell had made a mistake, the next day he learned about Petitioner’s request to
IT to change the information in the System. Following Petitioner’s return from an
unrelated leave, Feagans asked Petitioner to explain how the receipt number for the
Company’s license renewal had been changed in the System. Despite multiple
opportunities to do so over the following days,3 Petitioner never informed Feagans
3 Between Finding of Fact 60 and Finding 61, the listed year of the events changes,
without explanation, from 2018 to 2019. Given the record indicates Petitioner returned from leave in October 2018, in accordance with Finding 60 and that Petitioner’s dismissal occurred on 2 November 2018, the switch to 2019 appears to be a clerical error. The relevant events described in the Findings all appear to have occurred in 2018. LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
about her request to IT. In a final meeting with Feagans on 10 October, Petitioner
again denied requesting IT change the check number in the System and also denied
that Mitchell had performed the renewals, stating instead that Petitioner herself had
processed the renewals.
¶8 On 2 November 2018, Petitioner was dismissed for unacceptable personal
conduct on three grounds:
1. Material falsification of a State application or other employment documentation to include falsification of work-related documents (Falsification of records in the . . . System); 2. Conduct for which no reasonable person should expect to receive warning (Failure to cooperate with an investigation and manipulating the licensing system in an attempt to falsely implicate a coworker and conceal your own wrongful actions); and 3. Conduct unbecoming a State employee that is detrimental to State service (Failure to cooperate with an investigation and manipulating the licensing system in an attempt to falsely implicate a coworker and conceal your own wrongful actions).
Following her dismissal, Petitioner filed an internal grievance, and, following a Step
2 Hearing, her dismissal was upheld on 18 January 2019. Petitioner then filed a
petition commencing a contested case in the Office of Administrative Hearings. The
ALJ’s final decision following a contested case hearing affirmed the Department’s
decision to dismiss Petitioner based on unacceptable personal conduct. Petitioner
appeals. LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
II. Analysis
¶9 Career state employees receive statutory protections from being, inter alia,
discharged without “just cause.” N.C. Gen. Stat. § 126-35(a) (2019). Just cause
includes two potential bases for adverse disciplinary action: (1) action “imposed on
the basis of unsatisfactory job performance” or (2) action “imposed on the basis of
unacceptable personal conduct.” 25 N.C. Admin. Code 1J.0604(b). Petitioner was
dismissed for unacceptable personal conduct, so the issues here arise only from that
basis.
¶ 10 Focusing on that basis, in Warren v. North Carolina Dept. of Crime Control &
Public Safety, North Carolina Highway Patrol, this Court established a three-part
test for determining whether just cause existed for adverse employment action
against career state employees based on 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. Just cause must be determined based “upon an examination of the facts and circumstances of each individual case.”
221 N.C. App. 376, 383, 726 S.E.2d 920, 925 (2012) (quoting North Carolina Dept. of LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
Environment and Natural Resources v. Carroll, 358 N.C. 649, 669, 599 S.E.2d 888,
900 (2004)).
¶ 11 Here, Petitioner only argues the ALJ’s decision erred with respect to Warren’s
second and third inquiries.4 Petitioner first argues she prevails under the second
inquiry because her actions did not constitute unacceptable personal conduct.
Although the argument is not listed as a separate issue presented, Petitioner then
raises an issue under the third inquiry when she contends this Court should find no
just cause to dismiss her because “something less than dismissal was the proper
discipline for her actions.” After addressing the standard of review, we will address
each of the two contested inquiries in turn.
A. Standard of Review
¶ 12 As both parties agree, the standard of review for an administrative agency’s
decision is governed by North Carolina General Statute § 150B-51 (2019), which
provides:
(b) The court reviewing a final decision may affirm the decision or remand the case for further proceedings. It may also reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the
4 Petitioner also would fail on the first inquiry because she did not challenge any of
the ALJ’s Findings of Fact on appeal. When Findings of Fact are not challenged, they are binding on appeal. Smith v. N.C. Department of Public Instruction, 261 N.C. App. 430, 444, 820 S.E.2d 561, 570–71 (2018) (citing Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). Because the Findings are binding on appeal, they establish “that [Petitioner] did, in fact, engage in the conduct described therein. Accordingly, the first prong of the Warren test is satisfied . . . .” Id., 261 N.C. App. at 444, 820 S.E.2d at 571. LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
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 administrative law judge; (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, capricious, or an abuse of discretion. (c) . . . With regard to asserted errors pursuant to subdivisions (1) through (4) of subsection (b) of this section, the court shall conduct its review of the final decision using the de novo standard of review. With regard to asserted errors pursuant to subdivisions (5) and (6) of subsection (b) of this section, the court shall conduct its review of the final decision using the whole record standard of review.
¶ 13 As subsection (c) explains, the standard of review depends on the type of case.
N.C. Gen. Stat. § 150B-51(c). The differing standards of review can be broken down
along the lines of the three inquiries under Warren as well. In Carroll—the case
which Warren would later interpret, 221 N.C. App. at 380–83, 726 S.E.2d at 924–25—
the Supreme Court explained “[d]etermining whether a public employer had just
cause to discipline its employee 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].” Carroll, 358 N.C.
at 665, 599 S.E.2d at 898 (internal quotations omitted) (second alteration in original).
This Court has previously explained that the first Carroll inquiry is a question of fact
reviewed under the whole record test and that the second Carroll inquiry is a question LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
of law reviewed de novo. Whitehurst v. East Carolina University, 257 N.C. App. 938,
943–44, 811 S.E.2d 626, 631 (2018). Warren determined that Carroll’s second inquiry
required two separate analyses, which became the second and third Warren inquiries.
See Warren, 221 N.C. App. at 380–83, 726 S.E.2d at 924–25 (explaining the difficulty
in reconciling within the second Carroll inquiry Carroll’s insistence that a court find
unacceptable personal conduct and that not all unacceptable personal conduct
amounted to just cause before deciding to “balance the equities after the unacceptable
personal conduct analysis” as part of three inquiry framework).
¶ 14 Thus, relying on Whitehurst provides the following standards of review.
Warren’s first inquiry mirrors Carroll’s first inquiry. Compare Warren, 221 N.C. App.
at 383, 726 S.E.2d at 925 with Carroll, 358 N.C. at 665, 599 S.E.2d at 898. As a
result, the first Warren inquiry employs the same standard of review as the first
Carroll inquiry, the whole record test. See Whitehurst, 257 N.C. App. at 943, 811
S.E.2d at 631 (explaining first Carroll inquiry uses whole record test). Given the
second and third Warren inquiries both derive from the second Carroll inquiry, they
employ the same standard of review as the second Carroll inquiry, de novo review.
See id., 257 N.C. App. at 943–44, 811 S.E.2d at 631 (explaining the second Carroll
inquiry uses de novo review).
¶ 15 Here, Petitioner only raises—and only can raise, see supra footnote 4—issues
under the second and third Warren inquiries. As a result, both issues are reviewed LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
de novo. “Under the de novo standard of review, the trial court considers the matter
anew and freely substitutes its own judgment for the agency’s.” Wetherington v.
North Carolina Dept. of Public Safety, 368 N.C. 583, 590, 780 S.E.2d 543, 547 (2015)
(“Wetherington I”) (internal quotations and alterations omitted).
B. Warren Inquiry Two: Unacceptable Personal Conduct
¶ 16 Petitioner first argues “none of [Petitioner’s] actions constitute unacceptable
personal conduct under the law,” which aligns with Warren’s second inquiry. Warren,
221 N.C. App. at 383, 726 S.E.2d at 925. First, Petitioner contends she could not have
falsified records in the System because the term “falsify . . . indicates knowledge of
untruth” and there is no evidence Petitioner “had any motive to falsify records” or
“even knew that she was entering” inaccurate information. Petitioner then argues
she also did not fail to cooperate with the investigation because she “made a mistake
and did not intend to falsify the data” such that “it is more logical to conclude that
any statements made to her supervisor during the investigation were the result of” a
lapse in memory.
¶ 17 Unacceptable personal conduct “is a broad ‘catch-all’ category that
encompasses a wide variety of misconduct by State employees that can result in
dismissal without the need for a prior warning.” Smith, 261 N.C. App. at 444, 820
S.E.2d at 571. As relevant here, unacceptable personal conduct includes:
(a) conduct for which no reasonable person should expect LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
to receive prior warning; ... (e) conduct unbecoming a state employee that is detrimental to state service; ... (h) falsification of a state application or in other employment documentation.
25 N.C. Admin. Code 1J.0614(8). In the past, this court has clarified conduct
unbecoming under subsection (e) does not require a showing of actual harm, “only a
potential detrimental impact (whether conduct like the employee’s could potentially
adversely affect the mission or legitimate interests of the State employer).” Smith,
261 N.C. App. at 445, 820 S.E.2d at 571 (internal quotations omitted). Additionally,
as the State Human Resources Manual explains, falsification under subsection (h)
includes “falsification of work-related documents.” State Human Resources Manual
§ 7, p. 4 (2017).5
¶ 18 Here, the ALJ’s Findings of Fact are undisputed and therefore binding on
appeal. Smith, 261 N.C. App. at 444, 820 S.E.2d at 570–71 (citing Koufman, 330 N.C.
at 97, 408 S.E.2d at 731). The ALJ found that after Petitioner’s requested changes
were made to the System, the information in the System “was false” because the
System would have indicated the check number she used was for work done on 26
June 2018, which Petitioner admitted was not the date she issued a license renewal.
5 Available at: https://oshr.nc.gov/media/1580/open (as of 9 September 2021). LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
Further, “[g]iven the multiple failsafe mechanisms, and the abundance of information
available to Petitioner indicating that the renewals for [the Company] had already
been renewed,” the ALJ found “Petitioner knowingly falsified records” in the System.
(Emphasis added) Those two findings alone show Petitioner falsified work related
documents, which amounts to unacceptable personal conduct under 25 N.C. Admin.
Code 1J.0614(8) and the State Human Resources Manual § 7, p.4.
¶ 19 The same findings also refute Petitioner’s argument she did not know she was
entering inaccurate information because Petitioner “knowingly falsified” the
information. (Emphasis added) Further, the System included numerous fail safes to
prevent such inadvertent error. The System would provide an error message to
anyone trying to proceed with a license renewal that had already been completed,
prohibit such duplicate renewal, and indicate in the hard copy file who had renewed
the licenses and on what date. Given those fail safes, we agree with the ALJ’s binding
Finding of Fact that Petitioner knowingly falsified the records. Additionally, the false
nature of the information in the System would be apparent to anyone who looked.
The System said Petitioner had completed the work on 26 June even though she did
not make a request to IT to enable her to perform the work until 2 July. Based on
the circumstances, Petitioner knew she was entering false information to the System
regardless of her current attempt to claim otherwise.
¶ 20 Petitioner’s argument she lacked motive is similarly unconvincing. She cites LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
no authority indicating motive is a relevant consideration when determining whether
she falsified a work-related document. Additionally, even Petitioner’s own definition
of falsify requires merely knowledge of untruth, not a specific reason for causing the
untruth. Thus, using Petitioner’s definition, the undisputed facts show Petitioner
falsified a work related document.
¶ 21 The falsification basis alone would be enough for Petitioner to fail on the second
Warren inquiry because “[o]ne act of [unacceptable personal conduct] presents ‘just
cause’ for any discipline, up to and including dismissal.” Hilliard v. North Carolina
Dept. of Correction, 173 N.C. App. 594, 597, 620 S.E.2d 14, 17 (2005). However, the
ALJ also concluded Petitioner had committed unacceptable personal conduct on the
basis that she engaged in “conduct unbecoming a state employee that is detrimental
to state service.” 25 N.C. Admin. Code 1J.0614(8)(e). While Petitioner does not
clearly state she is challenging this basis, we assume she is because she argues she
“had no motive or reason to lie or be uncooperative in the ensuing investigation” and
such failure to cooperate was listed as a basis for the conduct unbecoming charge in
her original dismissal letter. First, to the extent that this argument is based on her
argument that she did not knowingly falsify records, it fails because the uncontested
Findings of Fact support that Petitioner knowingly falsified the information in the
System. Second, other Findings of Fact layout how Petitioner lied and was
uncooperative in the ensuing investigation regardless of whether she had motive to LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
be. Petitioner repeatedly failed to inform her supervisor that she had contacted IT to
request they change information in the System and also falsely told her supervisor
that she, rather than her co-worker Mitchell, had completed the Company’s renewals.
These undisputed facts indicate Petitioner failed to cooperate in the investigation,
supporting the separate conduct unbecoming basis for finding unacceptable personal
conduct.
¶ 22 The conduct unbecoming basis also finds strong support in the record based on
Petitioner’s other actions. As the uncontested Findings of Fact state, the System’s
accuracy in general is important because the public uses it to confirm that people
applying potentially dangerous pesticides are licensed and because the state uses it
to regulate the industry and conduct investigations as necessary. The System also
contains records related to public funds, and, thus, inaccuracies could subject the
Department to adverse audit findings. The inaccuracies Petitioner caused resulted
in the Company being temporarily overbilled by $2,260. Based on those facts,
Petitioner’s conduct “could potentially adversely affect the mission or legitimate
interests of the State employer,” as required to conclude an employee committed
unbecoming conduct, and, in fact, Petitioner’s actions did cause such harm. Smith,
261 N.C. App. at 445, 820 S.E.2d at 571. Thus, even if Petitioner had not falsified
records, as we concluded above, she still committed conduct unbecoming of a state
employee and thus engaged in unacceptable personal conduct. Based on our de novo LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
review, we conclude Petitioner committed unacceptable personal conduct, thereby
satisfying the second Warren inquiry.
C. Warren Inquiry Three: Just Cause
¶ 23 Finally, Petitioner contends the ALJ erred in conducting Warren’s third
inquiry, which requires determining “whether th[e] misconduct amounted to just
cause for the disciplinary action taken.” Warren, 221 N.C. App. at 383, 726 S.E.2d at
925. Petitioner first contends she was never “told the truth” that the application had
been reassigned to her coworker Mitchell and argues this “deliberate[] exclu[sion]
from important office communications” and then firing her “when she erred in the
absence of that information . . . is simply not the equity and fairness to the employee
required in the just cause context.” (Emphasis in original) (internal quotations
omitted) Petitioner then separately argues we should reconsider the relevant just
cause factors because they “show that something less than dismissal was the proper
discipline for [Petitioner’s] actions.”
¶ 24 When making the just cause determination, the reviewing court must examine
“the facts and circumstances of each individual case” because just cause “is a flexible
concept, embodying notions of equity and fairness.” Carroll, 358 N.C. at 669, 599
S.E.2d at 900 (internal quotations omitted). To aid in making that individualized
determination during Warren’s third inquiry, we look at the factors set forth in
Wetherington I. Whitehurst, 257 N.C. App. at 945, 811 S.E.2d at 632. Those factors LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
include: “the severity of the violation, the subject matter involved, the resulting harm,
the [employee]’s work history, or discipline imposed in other cases involving similar
violations.” Wetherington I, 368 N.C. at 592, 780 S.E.2d at 548. We have recently
explained that, in context, the word “or” in the list “must be read as ‘and’ when applied
to the factors which should be considered.” Wetherington v. North Carolina Dept. of
Public Safety, 270 N.C. App. 161, 189–90, 840 S.E.2d 812, 831 (2020) (“Wetherington
II”). Thus, courts must consider “any factors for which evidence is presented.” Id.,
270 N.C. App. at 190, 840 S.E.2d at 832.
¶ 25 Petitioner first contends she was not afforded the general “equity and fairness
to the employee required in the just cause context” because “she was deliberately
excluded from important office communications regarding matters to which she had
been assigned, and then fired when she erred in the absence of that information.
(Emphasis removed) In support of this argument, Petitioner cites Whitehurst for the
point that “an employee’s conduct must be judged with reference to the facts of which
he was aware at the time of his actions.”
¶ 26 Petitioner’s reliance on Whitehurst is misplaced. Whitehurst states the cited
point in the context of a case where a police officer knew that a person had committed
an assault but did not know that the same person had separately been assaulted
because no one told him about the second assault, including the victim of the second
assault when the officer explicitly asked him what happened. 257 N.C. App. at 947, LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
811 S.E.2d at 633. In that case, the officer did not have facts held against him in a
situation where he took steps to try to ascertain the unknown facts. By contrast, here
Petitioner did not act in a way that would have led her to uncover the facts she now
complains were withheld from her. Beyond the System’s failsafe mechanisms that
we have already discussed, the uncontested Findings of Fact detail how Petitioner
was supposed to notify her supervisor before requesting IT make changes in the
System but failed to take that step. Had Petitioner acted properly and asked her
supervisor before contacting IT, her supervisor, who knew that Petitioner’s co-worker
had inquired about the renewal application before going on to process it herself, would
have informed Petitioner that the co-worker had processed the application already.
Thus, this case is not similar to Whitehurst because here Petitioner did not try to
uncover the unknown facts about which she now complains despite Petitioner being
told to follow a process that would have uncovered those very facts.
¶ 27 Further, Petitioner still ultimately decided to enter false information into the
System as laid out above. Other people failing to inform her of certain facts did not
change her own actions. Thus, Petitioner’s argument she was not afforded the
general equity and fairness underlying just cause does not sway us.
¶ 28 Turning to Petitioner’s second argument, we are asked to reweigh the
Wetherington I factors, which include: “the severity of the violation, the subject
matter involved, the resulting harm, the [employee]’s work history, [and] discipline LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
imposed in other cases involving similar violations.” Wetherington I, 368 N.C. at 592,
780 S.E.2d at 548; see Wetherington II, 270 N.C. App. at 189–90, 840 S.E.2d at 831
(explaining the “or” in the original factors list must be read as “and” given the
context). We briefly address each factor again relying on the uncontested Findings of
Fact.
¶ 29 Taking the first two factors together, the violation is severe precisely because
of the subject matter involved. As explained previously, the System relies on accurate
information to protect the public from unlicensed people performing potentially
dangerous pesticide applications. Petitioner herself even verified the importance of
the System having accurate information because she checks the System to verify
licensure status. Given the importance of the integrity of the System in protecting
the public, Petitioner’s violation was severe.
¶ 30 Petitioner’s violation was also severe because of the resulting harm.
Petitioner’s actions led to the Company being double billed and thus overpaying
$2,260. While a refund was issued about a month later, the Company still lacked
money it should rightfully have had for that month. Further, the Company itself
discovered the error and was “not happy” according to Petitioner’s co-worker Mitchell,
who received their call, which indicates this instance was one of the situations where
an error in the System “reflect[ed] negatively” on the Department leading to
reputational harm. Thus, while Petitioner contends the ALJ found no harm resulted, LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
we conclude on de novo review that Petitioner’s actions caused actual harm both to
the overbilled Company and to the Department’s reputation.
¶ 31 Examining the fourth factor, Petitioner’s work history also favors finding just
cause. Petitioner’s supervisors described her as “uncooperative, aggressive towards
her coworkers, and disrespectful and dismissive” during “the course of her
employment.” (Internal quotations omitted) They also described her work as
“oftentimes unacceptable” and merely “acceptable at best,” an assessment borne out
by her overall “Does Not Meet Expectations” rating in her 2017-2018 performance
review. Further, Petitioner had already received a prior written warning for
unacceptable personal conduct and a two-week disciplinary suspension without pay
for a violation of the workplace violence policy. Additionally, Petitioner’s supervisors
had attempted to help improve her performance and workplace conduct for “over a
decade” and even reiterated their desire to help her as recently as 30 April 2018, mere
months before the conduct that led to Petitioner’s dismissal. While Petitioner argues
the ALJ only examined the prior two years when reviewing her work history, the
uncontested Findings of Fact describe behavior “over the course of [Petitioner’s]
employment” and convey attempts to help her improve for “over a decade.”
¶ 32 The record before us resembles another case where this Court recently found
just cause. There, this Court found just cause when the employee’s work history
included “a pattern of petulant, inappropriate, and insubordinate behavior . . . that LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
extended over the course of several years” and that did not change “[d]espite repeated
attempts” from supervisors to help the employee. Smith, 261 N.C. App. at 446–47,
820 S.E.2d at 572. The record here shows a similar pattern with Petitioner’s
behavior, which also did not improve after her supervisor’s repeated attempts to help.
Thus, we similarly conclude Petitioner’s work history supports finding just cause.
¶ 33 The final Wetherington I factor is whether the discipline in this case aligns
with discipline in similar cases. 368 N.C. at 592, 780 S.E.2d at 548. Petitioner first
highlights “there was no evidence or findings of fact regarding the disciplined [sic]
imposed in other cases involving similar violations.” While Petitioner is correct, this
absence does not impact our overall analysis. The decisionmaker is only required to
consider factors “for which evidence is presented” such that they cannot rely on one
factor while ignoring others. Wetherington II, 270 N.C. App. at 190, 840 S.E.2d at
832 (emphasis added). The ALJ here considered all four other Wetherington I factors
and could not have considered the similar discipline factor because as Petitioner
admits, there is no evidence on that factor. Petitioner also repeats her argument that
the ALJ failed to take into account that no one was disciplined for not informing her
they separately processed the license renewal, but we have already rejected that
argument above.
¶ 34 After reviewing each of the Wetherington I factors, equity and fairness support
the decision to dismiss Petitioner. Thus, after our de novo review, we find just cause LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
to dismiss Petitioner existed.
D. Findings of Fact Supporting Conclusions of Law
¶ 35 In addition to the arguments within the Warren framework, Petitioner’s
“Issues Presented” section of the brief also raises as an issue for review whether “the
trial court’s findings of fact regarding the discipline imposed on Petitioner support its
conclusions of law?” (Capitalization altered) However, at no point in the remainder
of the brief does Petitioner discuss this issue or indicate which Conclusions of Law
are unsupported by the Findings of Fact. As a general matter, issues “in support of
which no reason or argument is stated[] will be taken as abandoned.” N.C.R. App. P.
28(b)(6); see also N.C.R. App. P. 28(a) (“Issues not presented and discussed in a party’s
brief are deemed abandoned.”) (emphasis added). This Court has also previously said
that when an appellant listed an additional “Issue Presented” in its brief but “fail[ed]
to argue this issue in the text of the brief” the appellant abandoned the challenge.
Capital Resources, LLC v. Chelda, Inc., 223 N.C. App. 227, 233 n.4, 735 S.E.2d 203,
208 n.4 (2012). Here, we similarly conclude Petitioner has abandoned the issue of
whether the Findings of Fact support the Conclusions of Law by “failing to argue this
issue in the text of the brief.” Id.
¶ 36 Even if Petitioner had not abandoned the challenge, we still find no error.
Many of the potentially contested Conclusions of Law concern the second and third
Warren inquiries, and we have already reviewed those Conclusions de novo and the LOCKLEAR V. NC DEP’T OF AGRIC. & CONSUMER SERVS.
Conclusions are supported by the uncontested Findings of Fact. Further, as stated
above, we did not review the Conclusions for the first Warren inquiry because they
simply relied on the uncontested Findings of Fact. See supra footnote 4. Thus, even
if the issue is not abandoned, the Findings of Fact support the Conclusions of Law
based on what we have already explained.
III. Conclusion
¶ 37 After de novo review of the two contested Warren inquires, we find there was
just cause to dismiss Petitioner. To the extent Petitioner has not abandoned the
issue, the Findings of Fact support the Conclusions of Law. Therefore, we affirm the
decision of the ALJ upholding Petitioner’s dismissal.
AFFIRMED.
Judges HAMPSON and GRIFFIN concur.