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Rittelmeyer v. University of North Carolina

Court of Appeals of North Carolina

March 21, 2017

JENNIFER RITTELMEYER, Petitioner
v.
UNIVERSITY OF NORTH CAROLINA at CHAPEL HILL, Defendant.

          Heard in the Court of Appeals 21 February 2017.

         Appeal by petitioner from order entered on or about 19 June 2015 by Judge Paul G. Gessner in Superior Court, Wake County No. 14 CVS 9915.

          Edelstein and Payne, by M. Travis Payne, for petitioner-appellant.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Kimberly D. Potter, for respondent-appellee.

          STROUD, Judge.

         This case arises from petitioner's appeal from a trial court order affirming the administrative law judge's decision to affirm respondent's termination of petitioner's employment. Because the administrative law judge's order was based upon substantial evidence and was in accord with the applicable law, and the trial court conducted a proper review of the administrative law judge's order, we affirm the trial court order.

         I. Background

         This summary of the facts is based upon the administrative law judge's ("ALJ") findings of fact in the final agency decision ("decision"). The ALJ made 260 findings of fact -- approximately 40 pages, single-spaced -- detailing the history of petitioner's light sensitivity all the way back to her "late teens" when she first noticed the problem, through her employment with respondent, and up to the inception of her claim. Upon petition to Superior Court, the trial court found that there was substantial evidence to support all of the findings of fact. Petitioner has, in one cursory final issue, challenged many of these extensive findings of fact on appeal, but because she has failed to properly present this argument on appeal, as discussed below, we accept the ALJ's findings of fact as binding upon this Court.[1] Garrett v. Burris, 224 N.C.App. 32, 34, 735 S.E.2d 414, 416 (2012), aff'd per curiam, 366 N.C. 551, 742 S.E.2d 803 (2013) ("Plaintiff does not challenge any of the trial court's findings of fact as unsupported by the evidence. These findings, therefore, are binding on appeal."). The decision shows that petitioner's employer took many actions to accommodate her light sensitivity throughout the entire process of their working relationship. We will not list every single accommodation respondent made for petitioner for the sake of brevity but will note many of them.

         In August of 2002, petitioner was hired by respondent's Department of Medicine and Genetics to work as a part-time, temporary administrative assistant. Petitioner informed Ms. Sikes, petitioner's supervisor, that exposure to fluorescent lights caused her to have migraine headaches.[2] In 2004, petitioner became a permanent employee as a social clinical research assistant. Between approximately 2002 and 2004, Ms. Sikes informally accommodated petitioner's light sensitivity by allowing her to work in an office with a window where petitioner could use the natural light and avoid turning on her overhead lights. In 2005, petitioner's entire department moved to a new building where petitioner's new work station was in a cubicle. To accommodate petitioner, the overhead lights in the general work area remained off and this lack of lighting did to some extent affect other employees. In 2010, the department was scheduled to move again and Ms. Sikes suggested petitioner check out the new workspace and allowed her "to design her own work space[.]"

         In February 2010, the department moved and for "the first time all [of] the genetic counselors were working together in one shared space." Most of the employees were in cubicles. Petitioner was working in a cubicle directly across a corridor from Ms. Sikes's office. In her office, Ms. Sikes used only one of her two sets of overhead florescent lights. The overhead lights over the entire cubicle area were initially kept off, while another department, sharing the same overall space but not grouped with petitioner's department, kept the lights on over their workspace. Although the main lights over petitioner's workspace were turned off, petitioner was still exposed to fluorescent lights from the other department's lights, the emergency lights, bathroom lights, and lights by the elevator. Respondent then disengaged some of the emergency lights around petitioner's cubicle. Other employees began using floor and desk lamps in their workspaces to accommodate the dark conditions. Petitioner also began complaining about sensitivity to fragrances, so respondent posted signs asking the employees to cease wearing scented products. Overall, during the time period from moving into the new space in February of 2010, until November of 2011, the department effectively completed its work.

         During this same time period, respondent also had to make constant adjustments to the lighting due to complaints by other employees that their work areas were too dark. Petitioner specifically complained that she had headaches caused by the supplemental lighting in the cubicle adjoining hers, where Ms. Lee worked. Because it was closest to petitioner's cubicle, Ms. Lee's cubicle was the darkest workspace. Ms. Lee tried different combinations of lighting and changed light bulb wattages, but petitioner remained dissatisfied.

         In November of 2011, while petitioner was on vacation and without Ms. Sikes's knowledge, Ms. Lee submitted a work order to have the overhead lights above petitioner's cubicle and directly to the left and right of it disabled. Once this was done, the department began using the overhead lights again since the overhead lights in petitioner's immediate vicinity were disabled. On 19 November 2011, petitioner went to work but eventually got a headache that lasted until the next day. On 21 November 2011, petitioner informed Ms. Sikes that the new lighting conditions would not work for her. Ms. Sikes contacted respondent's disability office for assistance. A formal request from petitioner was needed to begin disability accommodations, so on 27 November 2011, petitioner expressed her desire to move forward with the formal accommodation process.

         On 30 November 2011, Ms. Phillips, the employee working with petitioner and respondent from the disability's office, responded to petitioner about beginning the formal process of accommodation. On 6 December 2011, petitioner submitted a form to Ms. Phillips requesting accommodations and provided a letter from her doctor regarding her sensitivity to light. Ms. Phillips began corresponding with many individuals about accommodations, and during this time petitioner asked on multiple occasions that all overhead lights be turned back off, but this request was not initially allowed. Ms. Phillips then suggested perhaps petitioner could work from home, but petitioner refused. In December of 2011, Ms. Lee was moved to a different workspace so that all of the lights could remain off while petitioner was at work.

         On 12 January 2012, respondent installed panels on top of petitioner's cubicle to block out the overhead lights from other areas. Tack boards were then added on top of the panels to block more light. The lights immediately above and around petitioner's cubicle remained disengaged, but the following day, petitioner said the modification did not work. On 17 January 2012, petitioner again requested the overhead lights in the entire area remain off until a solution could be found. Ms. Phillips informed Ms. Sikes that petitioner would come back to work on 19 January 2012, if the lights were turned off for her, but Ms. Sikes did not agree.

         Petitioner then refused to allow Ms. Phillips to speak to her healthcare provider about other possible accommodation options and rejected the idea of room-darkening glasses. Petitioner also again rejected the idea of working from home. On 20 January 2012, taller partitions were installed to the cubicle to raise the walls; new tack boards were also installed. Petitioner's cubicle walls were approximately nine feet high at this point.

         During January and February of 2012, petitioner attended work sporadically and suffered from a migraine "essentially every day she tried to work[.]" During February of 2012, petitioner still refused to work from home or to allow Ms. Phillips to speak with her healthcare provider. On 10 February 2012, solid panels were installed from the floor to the ceiling on petitioner's cubicle; part of the cubicle had been left open during the prior modification at petitioner's request because she wanted to allow natural light from that area.

         On 14 February 2012, petitioner claimed the accommodation did not work, continued to complain about Ms. Lee's supplemental lighting, and claimed she could not walk to areas like the copier and scanner. Respondent then moved the copier and scanner into petitioner's "darkened area[.]" Petitioner then requested Ms. Sikes put up black paper to block the lights from her office, although these lights had never been a problem before, and she also requested breaks. The next day, on 15 February 2012, all of the cubicle walls were raised to the ceiling; this same day petitioner requested that the gaps where the walls touched the ceiling be duct taped and that Ms. Sikes keep her office door closed. Petitioner still believed Ms. Lee's supplemental lighting was part of her problem though petitioner was never clear on the source of her problem and complained about issues which she had originally not mentioned.

         On 17 February 2012, petitioner requested a door and a roof for her cubicle, but Ms. Phillips declined these accommodations since petitioner's workspace was now much darker than it had been before November of 2011 when the formal accommodation process began. Also, the additions to the walls already reached the ceiling. Petitioner also made modification requests prior to the previous set of requests even being made. Ultimately in late February 2012, petitioner requested leave under the Family Medical Leave Act which was approved from 22 February 2012 to 21 May 2012. The communications regarding modifications continued and respondent made numerous other modifications.

         On 9 March 2012, petitioner requested a transfer to another position; respondent denied this request but informed her that she was free to apply for any position she desired. During her leave, petitioner wore special room-darkening glasses to block fluorescent light, although when she had been at work she complained they made her nauseous. On 21 May 2012, petitioner returned to work and acknowledged her workspace was much darker than it had been in November of

         2011, but petitioner's sensitivity to light had increased. On 24 May 2012, petitioner left work early due to a migraine; the next day, petitioner left work at 9:00 a.m. On 29 May 2012, petitioner again requested that Ms. Sikes be required to keep her door closed, and this accommodation was denied.

         After 1 June 2012, petitioner began reporting to work even less than she had been despite her workspace being its darkest yet. On 13 June 2012, petitioner received a written warning due to her absences. On 18 June 2012, petitioner applied for Family Illness Leave which was approved for two days. Thereafter, petitioner continued to miss work frequently. On 24 July 2012, respondent gave petitioner four weeks of leave without pay from 16 July 2012 until 12 August 2012. After 24 July 2012, petitioner stopped communicating with respondent and failed to return to work. On 14 August 2012, petitioner's employment was terminated. Up until this point, the accommodation process was still ongoing and had not stopped.

         On 4 September 2012, petitioner filed a petition for a contested case hearing contending that respondent "failed to accommodate" her disability. Petitioner further explained that respondent

[g]ave her an unjustified final written warning, and terminated her as of August 14, 2012, when she could not return to her job following a period of leave without pay. Petitioner was unable to return to her job because of her Employer's failure to appropriately and adequately accommodate her disability, which resulted in Petitioner suffering server[e] migraine headaches and eye pain after a short time each day at her job.
Petitioner has initiated a grievance concerning her discharge and under the UNC Grievance Procedure. That grievance raises the issue of lack of just cause for the discharge as well as the issues that the discharge violates Petitioner's rights under the Americans with Disabilities Act and the Family Medical Leave Act. To the extent that grievance is unsuccessful, once the process is complete, Petitioner will file a Petition for a Contested Case on those matters and move to join them with this petition.

         On 31 January 2013, petitioner did just that and filed a petition for a contested case hearing regarding her grievance which had been denied; petitioner moved to have the two petitions joined. On or about 26 February 2013, the chief ALJ consolidated the two petitions.

         Over the course of five days in October and November of 2013, an ALJ heard petitioner's case. In June of 2014, the ALJ entered a 60-page decision ultimately determining all issues in favor of respondent. On 24 July 2014, petitioner filed a 54-page petition with the Superior Court for review from the ALJ decision. On 22 August 2014, respondent responded to petitioner's petition, requesting that the trial court affirm the ALJ decision. In June of 2015, the trial court entered an order affirming the ALJ decision. Petitioner appeals.

         II. Standard of Review

         When the trial court considered the final agency decision its standard of review was provided by North Carolina General Statue § 150B-51:

(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 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) In reviewing a final decision in a contested case, the court shall determine whether the petitioner is entitled to the relief sought in the petition based upon its review of the final decision and the official record. 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.

N.C. Gen. Stat. § 150B-51 (2013).

         As to this Court's review,

[a] party to a review proceeding in a superior court may appeal to the appellate division from the final judgment of the superior court as provided in G.S. 7A-27. The scope of review to be applied by the appellate court under this section is the same as it is for other civil cases. In cases reviewed under G.S. 150B-51(c), the court's findings of fact shall be upheld if supported by substantial evidence.

          N.C. Gen. Stat. § 150B-52 (2013). Furthermore,

[a]n appellate court reviewing a superior court order regarding an agency decision examines the trial court's order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly. When, as here, a petitioner contends the agency's decision was based on an error of law, de novo review is proper.

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) (citations, quotation marks, and brackets omitted).

         In summary, as this case is being reviewed pursuant to North Carolina General Statute § "150B-51(c), the [trial] court's findings of fact shall be upheld if supported by substantial evidence." N.C. Gen. Stat. § 150B-52. Alleged errors of law will be reviewed de novo. Holly Ridge Assocs., LLC., 361 N.C. at 535, 648 S.E.2d at 834. Furthermore, we will review the trial court order to determine "whether the trial court exercised the appropriate scope of review and, if appropriate, . . . whether the court did so properly[.]" Id.

         More specifically, as to our review of the trial court's scope of review, if the argument raised before the trial court asserted an error with the agency decision which was "(1) [i]n violation of constitutional provisions; (2) [i]n excess of the statutory authority or jurisdiction of the agency or administrative law judge; (3) [m]ade upon unlawful procedure; [or] (4) [a]ffected by other error of law[, ]" we will review to consider whether the trial court properly used "the de novo standard of review." N.C. Gen. Stat. § 150B-51(c). If the argument raised before the trial court asserted an error with the agency decision which was "[u]nsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or . . . [a]rbitrary, capricious, or an abuse of discretion[, ]" we will review to consider whether the trial court properly used "the whole record standard of review." Id.

         III. Petitioner's Appeal of Findings of Fact

         Petitioner raises 14 issues on appeal. Petitioner's brief puts the cart before the horse by waiting until the last issue to raise any challenges to the findings of fact. Since findings of fact are required to support conclusions of law, see Beaufort Cty. Bd. of Educ. v. Beaufort Cty. Bd. of Comm'rs, 184 N.C.App. 110, 116, 645 S.E.2d 857, 861 (2007) ("The trial court's findings of fact must support its conclusions of law in order to enter a lawful order."), if the findings of fact were not supported by substantial evidence, see generally N.C. Gen. Stat. § 150B-52, it would have been helpful for petitioner to challenge those facts before addressing alleged errors of law. After all, if material facts in the findings were not supported by the evidence, we might never need to reach at least some of the arguments regarding errors of law. Thus, we will first address the last issue which purports to challenge many of the ALJ's findings of fact. Petitioner's entire argument is as follows:

Petitioner excepted in whole or in part to Findings 13, 24, 29, 30, 33, 36, 37, 53, 62, 67, 86, 90, 114, 115, 122, 123, 125, 127, 136, 137, 138, 140, 141, 142, 143, 144, 145, 146, 152, 189, 196, 203, 205, 209, 221, 222, 258, 259 and 260 [R. pp. 9-20]. The specifics as to what portion of each Finding exception was taken, is set out in each of the paragraphs of the Petition. Additionally, evidence that each Finding is at least in part wrong, is cited in each of the paragraphs. The exceptions to the specified Findings are well taken, and under the whole record test they should have each been modified or deleted.
At pages 17-45 of her Petition [R. pp. 20-48], Petitioner set forth 99 additional proposed Findings that are supported by the Record. Each of those proposed Findings cites to the evidence that supports it. They are all appropriate and they should be adopted.

         As tempting as it may be, we decline petitioner's invitation to comb through over 1, 000 pages of exhibits and her "99 additional proposed Findings" to find the substantial evidence, or lack thereof, to support the ALJ's 260 findings of fact or some portions of those findings; that is petitioner's job. See generally Carlton v. Oil Co., 206 N.C. 117, 172 S.E. 883, 884 (1934) ("[O]n appeal the burden is on appellant to show error[.]") Petitioner likely relegated her challenge to the findings of fact to her last issue because even she acknowledges that the changes to the findings she requests are not really material changes that would make any difference in the legal analysis; she recognizes this in footnote 22 of her brief:

The reference to "FOF" is to the Findings of Fact in the Decision. While Petitioner has asserted that some findings are not supported by the evidence, and that other findings should have been made, the Decision appears to contain sufficient findings to support the errors of law that Petitioner has raised. It is possible this Court could agree with Petitioner regarding the legal errors that she has raised, and fashion conclusions of law that are supported by the existing Findings of Fact.

(Emphasis added.) We also note that our rules impose page limitations on briefs, see N.C. R. App. P. 28(j), as petitioner pointed out in her statement of the facts, but petitioner's argument essentially seeks to add many, many pages to her brief by ...


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