in the Court of Appeals 21 February 2017.
by petitioner from order entered on or about 19 June 2015 by
Judge Paul G. Gessner in Superior Court, Wake County No. 14
Edelstein and Payne, by M. Travis Payne, for
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Kimberly D. Potter, for respondent-appellee.
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.
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. 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
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. 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[.]"
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
Standard of Review
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).
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.
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
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.
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."
Petitioner's Appeal of Findings of Fact
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.
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 ...