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Harris v. North Carolina Department of Public Safety

Court of Appeals of North Carolina

March 7, 2017

STEVEN HARRIS, Petitioner,

          Heard in the Court of Appeals 3 October 2016.

         Appeal by respondent from final decision entered 25 January 2016 by Administrative Law Judge Donald W. Overby in the Office of Administrative Hearings, No. 15 OSP 05500.

          Law Offices of Michael C. Byrne, by Michael C. Byrne, for petitioner.

          Attorney General Roy Cooper, by Assistant Attorney General Tamika L. Henderson, for respondent.

          TYSON, Judge.

         The North Carolina Department of Public Safety ("Respondent") appeals from a final decision of the North Carolina Office of Administrative Hearings, which concluded as a matter of law that Respondent lacked just cause to terminate Steven Harris ("Petitioner") from his position as a correctional officer, and ordering his reinstatement. We affirm the decision of the administrative law judge.

         I. Background

         Petitioner began working in February 2013 as a correctional officer at Maury Correctional Institution ("Maury Correctional"), a state prison operated by Respondent. Petitioner attended Respondent's basic training program and continued to be trained annually regarding Respondent's policies and procedures, including its Use of Force policy. Petitioner's personnel record contained no disciplinary action prior to the incident at issue.

         Petitioner was working the night shift at Maury Correctional on 5 February 2015. He was working in the "Gray Unit, " which housed the prison's segregation cell block. Inmate Christopher Walls ("Walls") was housed on the Gray Unit. Walls placed his feces into a plastic bag and placed the bag into the toilet, which caused water to leak onto the floor. Walls then poured the feces onto the floor. In response to Walls' actions, Sergeant Vernell Grantham ordered Ronnie Johnson ("Officer Johnson"), Devon Alexander ("Officer Alexander"), and Dominique Sherman ("Officer Sherman") (together "the officers") to remove Walls from his cell to allow a janitor to clean up the feces and extinguish the stench.

         The officers restrained Walls with handcuffs behind his back, a waist chain, and leg cuffs. Petitioner was not tasked with transporting Walls from his cell to another location. Officers Johnson, Alexander, and Sherman testified Petitioner approached Walls, stated to him: "You think this is funny" and punched Walls in the stomach. Walls was physically restrained, compliant, and under the other officers' control at the time Petitioner punched Walls. The officers each testified that Walls did not attempt to spit on Petitioner and was not offering any resistance at the time Petitioner punched him. While the Gray Unit is equipped with several security cameras, the incident was not captured, because it occurred in a blind spot inside the facility. Officer Johnson became upset and informed Petitioner that he was going to report him for punching the inmate.

         Walls, the inmate, stated to Sergeant Grantham, "Y'all hit like bitches." Less than thirty minutes after the incident occurred, Walls was taken to and screened by medical personnel, who observed no bruising or redness on his abdomen. At no point in time did Walls complain that Petitioner had struck him or abused him in any way.

         After the incident was reported, Respondent conducted an internal investigation, concluded Petitioner had violated Respondent's Use of Force policy, and recommended corrective action. Petitioner received a written notice, dated 14 April 2015, of a pre-disciplinary conference with Administrator Dennis Daniels and Administrative Services Manager Gary Parks, to be held the following day. The written notice stated the conference was to discuss a recommendation for Respondent to terminate Petitioner from his position for "unacceptable personal conduct." Petitioner was provided with the reasons his termination was recommended and was given an opportunity to respond to the allegations.

         Following the conference, Respondent's management approved the recommendation to terminate Petitioner's employment. Petitioner was notified by letter dated 17 April 2015 that his employment was terminated for unacceptable personal conduct. Petitioner filed an appeal with the Employee Advisory Committee, which recommended Petitioner's dismissal be upheld. Respondent notified Petitioner by letter dated 29 June 2015 of its final agency decision upholding Petitioner's dismissal.

         Petitioner filed a petition for a contested case hearing with the Office of Administrative Hearings ("OAH"). The case was heard before an Administrative Law Judge ("the ALJ") on 23 October 2015. Following that hearing, the ALJ issued a final decision on 25 January 2016. The final decision contained twenty-seven findings of fact. Utilizing the framework established by our Supreme Court in N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649');">358 N.C. 649, 599 S.E.2d 888 (2004) and by this Court in Warren v. N.C. Dep't of Crime Control, 221 N.C. App 376, 726 S.E.2d 920, disc. review denied, 366 N.C. 408, 735 S.E.2d 175 (2012), the ALJ concluded as a matter of law that "[t]o the extent . . . Petitioner's conduct [punching Walls in his stomach] constituted unacceptable personal conduct, it does not rise to the level of conduct that would justify the severest sanction of dismissal under the totality of facts and circumstances of this contested case" and that "[i]t is not 'just' to terminate Petitioner[.]"

         The ALJ reversed Respondent's decision to terminate Petitioner's employment, ordered Petitioner to be retroactively reinstated to his position of employment, and ordered a deduction from Petitioner's pay, equivalent to a one-week suspension. Respondent appeals.

         II. Jurisdiction

         Pursuant to N.C. Gen. Stat. § 7A-29(a) (2015), an appeal as of right lies directly to this Court from a final decision of the Office of Administrative Hearings under G.S. 126-34.02. Respondent's appeal is properly before us.

         III. Issues

         Respondent argues: (1) the ALJ erred as a matter of law by concluding Respondent failed to establish just cause to dismiss Petitioner for unacceptable personal conduct; (2) the ALJ erred as a matter of law by substituting his own judgment for that of Respondent and imposing new discipline upon Petitioner; (3) certain findings of fact and conclusion of law of the ALJ are not supported by substantial evidence, are unsupported by the findings of fact, or are affected by an error of law; and, (4) the ALJ erred as a matter of law by excluding evidence that was not specifically mentioned in Respondent's dismissal letter to Petitioner.

         IV. Just Cause for Dismissal

         Respondent argues the ALJ erred by concluding Respondent failed to establish just cause for Petitioner's dismissal. We disagree.

         A. Statutory Scheme and Standard of Review for Determining Just Cause

         In 2013, our General Assembly significantly amended and streamlined the procedure governing state employee grievances and contested case hearings, applicable to cases commencing on or after 21 August 2013. See generally 2013 N.C. Sess. Laws ch. 382. Our Supreme Court explained the previous statutory framework in detail in Carroll, 358 N.C. at 657-58, 599 S.E.2d at 893-94.

         A career state employee who alleged he was dismissed, demoted, or suspended without pay without just cause under N.C. Gen. Stat. § 126-35 was first required to "pursue any grievance procedures established by the employing agency or department." Id. at 657, 599 S.E.2d at 893 (citations omitted). Once those internal grievance procedures were exhausted, the aggrieved employee could demand a formal, quasi-judicial evidentiary hearing before an ALJ by filing a contested case petition with the Office of Administrative Hearings. Id. The ALJ issued a "recommended decision, " and each party was entitled to pursue an administrative appeal by filing exceptions and written arguments with the State Personnel Commission ("SPC"). Id. at 657, 599 S.E.2d at 893-94.

         The SPC issued its final agency decision based on its "review of the parties' arguments and the materials preserved in the official record[.]" Id. at 658, 599 S.E.2d at 894. The SPC was authorized "to reinstate a wrongfully terminated employee and to order a salary adjustment or other suitable action to correct an improper disciplinary action." Id. (citation omitted). The SPC's decision was subject to judicial review upon the petition of either the employee or the employing agency in the superior court. Id. (citation omitted). The superior court's decision was subject to further review in the appellate division. Id. (citation omitted).

         As part of the 2013 amendments, the General Assembly enacted N.C. Gen. Stat. §§ 126-34.01 and 126-34.02 into the North Carolina Human Resources Act. Under N.C. Gen. Stat. § 126-34.01 (2015), a State employee "having a grievance arising out of or due to the employee's employment" must first discuss the matter with the employee's supervisor, and then follow a grievance procedure approved by the North Carolina Human Resources Commission. The agency will issue a final decision, approved by the Office of State Human Resources. Id. While a final agency decision under the previous statutory framework included formal findings of fact and conclusions of law, a final agency decision under the current framework simply "set[s] forth the specific acts or omissions that are the basis of the employee's dismissal." 25 NCAC 01J .0613(4)(h) (2016).

         Once a final agency decision is issued, a potential, current, or former State employee may appeal an adverse employment action as a contested case pursuant to the method provided in N.C. Gen. Stat. § 126-34.02 (2015). As relevant to the present case, N.C. Gen. Stat. § 126-34.02(a) provides:

(a) [A] former State employee may file a contested case in the Office of Administrative Hearings under Article 3 of
Chapter 150B of the General Statutes. . . . In deciding cases under this section, the [ALJ] may grant the following relief:
(1) Reinstate any employee to the position from which the employee has been removed.
(2) Order the employment, promotion, transfer, or salary adjustment of any individual to whom it has been wrongfully denied.
(3) Direct other suitable action to correct the abuse which may include the requirement of payment for any loss of salary which has resulted from the improper action of the appointing authority.

         One of the issues, which may be heard as a contested case under this statute, is whether just cause existed for dismissal, demotion, or suspension. As here, "[a] career State employee may allege that he or she was dismissed, demoted, or suspended for disciplinary reasons without just cause." N.C. Gen. Stat. § 126-34.02(b)(3). In such cases, "the burden of showing that a career State employee was discharged, demoted, or suspended for just cause rests with the employer." N.C. Gen. Stat. § 126-34.02(d). In a contested case, an "aggrieved party" is entitled to judicial review of a final decision of an administrative law judge [ALJ] by appeal directly to this Court. N.C. Gen. Stat. § 126-34.02(a); N.C. Gen. Stat. § 7A-29(a).

         While Chapter 126 is silent on the issue, Chapter 150B, the Administrative Procedure Act, specifically governs the scope and standard of this Court's review of an administrative agency's final decision. See Overcash v. N.C. Dep't of Env't & Natural Res., 179 N.C.App. 697, 702, 635 S.E.2d 442, 446 (2006), disc. review denied, 361 N.C. 220 (2007). Article 4 of Chapter 150B is entitled "Judicial Review, " and includes N.C. Gen. Stat. § 150B-43:

[a]ny . . . person aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to the . . . person aggrieved by statute or agency rule, is entitled to judicial review of the decision under this Article, unless adequate procedure for judicial review is provided by another statute.

N.C. Gen. Stat. § 150B-43 (2015) (emphasis supplied).

         Chapter 150B also includes Section 51, which is entitled "Scope and standard of review." N.C. Gen. Stat. § 150B-51 (2015). The statute provides:

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 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 ...

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