in the Court of Appeals 17 October 2016.
by Respondent from final decision entered 9 February 2016 by
Administrative Law Judge Donald W. Overby in the Office of
Administrative Hearings No. 15 OSP 05867.
C. Hunter for Petitioner.
Attorney General Joshua H. Stein, by Assistant Attorney
General Tamika L. Henderson, for Respondent.
North Carolina Department of Public Safety
("Respondent") appeals from a final decision of the
Office of Administrative Hearings ("OAH")
concluding as a matter of law that Respondent lacked just
cause to dismiss Randall Cole ("Petitioner") from
his position as a laundry plant manager, and ordering that he
be retroactively reinstated but demoted. We conclude
Respondent had just cause to dismiss Petitioner and,
therefore, reverse the final decision of OAH.
worked for Respondent as an assistant director of the Craggy
Laundry facility from November 2003 until his promotion to
the position of plant manager in December 2010. Upon his
promotion to plant manager, a change of command audit
("the audit") was performed by Respondent. The
audit is performed each time a new plant manager is hired,
and serves as a "report of the condition of that
particular facility under the prior management." The
audit revealed that improvement was needed in some areas of
the laundry facility, and "significant improvement"
was needed in others. Petitioner's direct supervisor,
Ronald Young ("Young"), discussed the results of
the audit with Petitioner at a 3 February 2011 meeting. Due
to the magnitude of the problems, "Petitioner was told
that a follow-up audit would be conducted to verify
corrective action was implemented."
sent an email to Petitioner on 1 March 2011 reminding him
that the problems that were found in the audit needed to be
rectified. Although the problems had not been corrected by
that time, Petitioner responded to Young and indicated that
all of the issues had been corrected. The promised follow-up
audit was conducted on 7 June 2011, and found that some of
the issues identified in the audit had not been corrected.
Due to these deficiencies, an unsatisfactory rating was
entered into Petitioner's employee appraisal, known as
the appraisal process ("TAP") for July 2011. An
"employee action plan" was issued to Petitioner on
24 August 2011, that directed him to correct "all
violations set forth in [the audit]."
in November 2011, Young documented in Petitioner's TAP
that Petitioner had abated all of the audit violations
identified in the 24 August 2011 employee action plan. The
TAP stated in the "performance log" that
"[a]ll violations noted in [the audit] have
abated." Despite this notation in Petitioner's TAP,
Petitioner in fact had not abated all of the issues in the
audit, and was issued a written warning for unsatisfactory
job performance on 15 December 2011 (the "first written
warning") for "not satisfactorily implementing or
correcting actions prescribed on [the] action plan"
issued 24 August 2011. The first written warning alerted
Petitioner that he might "be subject to further
discipline up to and including dismissal" if the
problems were not corrected.
part of Petitioner's promotion to plant manager,
Petitioner was required to become certified as a Laundry
Manager under the Association of Linen Management Program.
Petitioner was aware of this requirement, and the requirement
was documented in his work plans in 2010, 2011, and 2012.
Petitioner was also issued an action plan on 21 December 2012
that gave him until 31 January 2013 to obtain the
certification. Despite the deadline being extended at least
twice, Petitioner failed to obtain the required
certification, and was issued another written warning on 20
March 2013 (the "second written
warning"). The second written warning notified
Petitioner that if he failed to achieve his certification by
20 April 2013,  he would "receive further
disciplinary action up to and including dismissal."
part of Petitioner's job responsibilities as plant
manager, he was required to reconcile receipts and send the
information and invoices to a central office in Raleigh for
payment. Petitioner was not fulfilling this job requirement
and, in July 2013, Young reached out to Petitioner to inquire
why the receipts and invoices were not being properly
forwarded. Petitioner told Young that he would complete this
task; however, he never did. As a result, Petitioner received
a written warning for unsatisfactory job performance related
to his failure to perform this task, as well as his failure
to correct issues found in an audit conducted 15 August 2013
(the "third written warning"). The third written
warning advised Petitioner that he was expected to take
"immediate corrective measures" or be subjected to
"further disciplinary action up to and including
dismissal." Shortly after the third written warning was
issued, a semi-annual safety inspection of the Craggy Laundry
Facility was conducted and several violations were found,
including failures to maintain safety reports and properly
train staff on safety programs.
Brown, the Director of Correction Enterprises and Young's
direct supervisor, "felt disciplinary action was
warranted because of Plaintiff's continued unsatisfactory
job performance, " and a pre-disciplinary conference was
held with Petitioner. Following this conference, Petitioner
was dismissed from his position for unsatisfactory job
performance. Following his dismissal, Petitioner utilized
Respondent's internal appeal procedure, and a final
agency decision affirmed his dismissal. Petitioner filed a
petition for a contested case hearing with OAH on 3 April
2014, alleging he was dismissed from his position of
employment without just cause. Petitioner voluntarily
dismissed his petition 144 days later, on 25 August 2014.
More than eleven months later, on 12 August 2015, Petitioner
filed a second petition for a contested case hearing.
filed a motion to dismiss the second petition, arguing that
N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) is inapplicable to
OAH proceedings and, therefore, a petition for a contested
case hearing may not be voluntarily dismissed and refiled
within one year. The Administrative Law Judge
("ALJ") assigned to the case ruled that "Rule
41 of the N.C. Rules of Civil Procedure applies to contested
cases heard by [OAH], " and denied Respondent's
motion. The ALJ held a hearing on the merits of
Petitioner's claims. Following that hearing, the ALJ
issued a final decision concluding as a matter of law that
"[a]lthough just cause existed for terminating
Petitioner, Respondent failed to meet its burden of proof
that it did not act erroneously or fail to use proper
procedure" in terminating Petitioner from his employment
"because Petitioner did not have two active warnings at
the time he was disciplined and terminated." According
to the final decision, Respondent lacked just cause to
terminate Petitioner but had "sufficiently proven that
it had just cause to demote Petitioner based on his
unsatisfactory job performance." Therefore, the ALJ
ordered Petitioner retroactively reinstated but demoted to
the position of assistant manager. Respondent appeals.
argues the ALJ erred by: (1) denying Respondent's motion
to dismiss and concluding that N.C. G.S. § 1A-1, Rule
41(a)(1) applies to proceedings before OAH; (2) entering
several findings of fact that were not supported by
substantial evidence in the record; (3) concluding that
Respondent lacked just cause to dismiss Petitioner for
unsatisfactory job performance; and (4) imposing a lesser
form of discipline rather than remanding the case to the
employing agency to impose a new form of discipline.
Applicability of N.C. G.S. § 1A-1, Rule 41(a)(1) ...