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Brewington v. North Carolina Department of Public Safety

Court of Appeals of North Carolina

June 20, 2017


         Appeal by petitioner from final decision entered 29 March 2016 by Senior Administrative Law Judge Fred G. Morrison, Jr. in the Office of Administrative Hearings No. 15 OSP 07614. Heard in the Court of Appeals 3 April 2017.

          The McGuinness Law Firm, by J. Michael McGuinness, for petitioner-appellant.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General J. Joy Strickland, for respondent-appellee.

          Essex Richards, P.A., by Norris A. Adams, II, for amicus curiae North Carolina State Lodge of the Fraternal Order of Police.

          ZACHARY, Judge.

         Petitioner Christine N. Brewington appeals from a Final Decision of the North Carolina Office of Administrative Hearings, which concluded that respondent North Carolina Department of Public Safety (DPS), State Bureau of Investigation (SBI) had just cause to dismiss Brewington from her position as a Special Agent with the SBI.

         For the reasons that follow, and after careful analysis, we affirm the decision of the administrative law judge.

         I. Background

         Brewington began working as a Special Agent for the SBI in 1998, and she held that position until her dismissal in June 2015. Prior to her dismissal, Brewington was working in the Diversion and Environmental Crimes Unit. On 3 September 2014, Brewington was assigned to conduct interviews with several employees of a pharmacy located in Lillington, North Carolina. The assignment required Brewington to work with Elizabeth Collier, an investigator with the North Carolina Pharmacy Board, in connection with a drug diversion case. This was Collier's first case as an investigator with the Pharmacy Board.

         After concluding the interviews between 1:45 and 2:00 p.m., Brewington and Collier drove separately to a nearby restaurant called the Sports Zone, where Brewington had dined on prior occasions, for a working lunch. While there, Martha Sullivan waited on Brewington and Collier's table. Sullivan would usually fix Brewington a beverage known as a "Sprite Delight, " unless Brewington requested something else to drink. Brewington described the Sprite Delight as a non-alcoholic beverage, pinkish in color, which contained "cranberry juice . . . along with pineapple juice or grapefruit juice." Brewington recalled that she ordered her "usual drink[, ]" a Sprite Delight, during her 3 September 2014 lunch with Collier.

         According to Collier, Brewington ordered "what appeared to be a cocktail[, ]" which was pink and was served in a "stemmed bowl-type glass, goblet style." Brewington drank the beverage as she and Collier ate lunch. Collier also observed that Brewington ordered a second drink at the end of the meal that had the same appearance. Toward the end of the meal, Brewington's friend, Mike Mansfield, arrived at the Sports Zone and joined Brewington and Collier. Brewington recalled that Mansfield ordered a beer immediately after he sat down, but Collier did not observe Mansfield order any food or drinks and indicated that she would have remembered seeing beer on the table. According to Brewington, she did not consume any alcohol during lunch, but "throughout the time that we were there, [Mansfield] continued to order another beer. I do recall him ordering a mixed drink, but I don't know what the mixed drink was."

         Shortly after Mansfield's arrival, Collier prepared to leave the restaurant. Because the Pharmacy Board authorized its representatives to pay for meals they shared with members of other state agencies, Collier offered to pay for Brewington's lunch. However, before she paid the bill, Collier informed Brewington that while she could pay for the food, she could not use her Pharmacy Board credit card to pay for alcohol. Brewington did not attempt to argue with or correct Collier's impression that the beverages Brewington had ordered contained alcohol. Collier "made a point to separate [the alcohol] from [her] portion of the bill[, ]" paid for one order of loaded potato chips and one order of fish tacos at 3:28 p.m., and then left the restaurant "pretty much right after" paying the bill.

         Brewington remained at the restaurant with Mansfield for approximately thirty minutes after Collier's departure. Mansfield had forgotten his wallet, so Brewington offered to "pay for his meal or whatever he had ordered, and he could just pay [her] back at a later date." At 3:57 p.m., Brewington used her personal credit card to pay for one order of loaded potato chips, "3 Coors Light" beers (totaling $9.87), and "2 Special Mixed Drink 7['s]" (totaling $15.98).

         Eight months after her 3 September 2014 lunch with Brewington, Collier audited a SBI Diversion School course. After diversion classes had concluded, Collier attended a social dinner with a group of course participants, one of whom was SBI Special Agent Steven[1] Smith. During a conversation regarding professionalism, Collier mentioned to Special Agent Smith that she had observed Brewington consume alcohol during their lunch at the Sports Zone. Collier recalled that the incident "just kind of came up in conversation." Special Agent Smith informed Collier that he would have to report the issue of Brewington's alleged misconduct to his supervisor, as the SBI has a strict policy that prohibits the consumption of alcohol by on-duty agents.[2]Once Special Agent Smith reported Collier's allegations to his supervisor, the issue worked its way through the SBI's chain of command. Eventually, the Special Agent in Charge of the SBI's Special Investigations Unit, Kanawha Perry, was assigned to investigate the incident.

         By letter dated 11 May 2015, Special Agent in Charge Perry notified Brewington that she was the subject of an internal investigation. However, the letter contained an error as to the date of the incident: "The nature of the allegation is as follows: Unacceptable Personal Conduct based on an allegation that in or around January 2015 you consumed an alcoholic beverage while on duty." (Emphasis added). Special Agent in Charge Perry and Assistant Special Agent in Charge Cecil Cherry interviewed Brewington on 20 May 2015. Prior to the beginning of the interview, Special Agent in Charge Perry advised Brewington of her Garrity rights[3] and corrected the date of the alleged offense date to 3 September 2014. After the date in question was correctly identified, Brewington stated that she did not need extra time to prepare for the interview. Because SBI policy generally prohibits the use of tape recorders during non-custodial interviews, Special Agent in Charge Perry took notes on Brewington's answers and used these notes to generate a typewritten report.

          According to Special Agent in Charge Perry's report, Brewington was asked if she took any prescription medications that affected her ability to use a firearm; in response, she identified five medications that she was taking to control various health conditions, and she stated that none of the medicines affected her cognitive abilities or her ability to use a firearm. The agents then proceeded to ask Brewington questions concerning what occurred at the Sports Zone on 3 September 2014. Brewington indicated that she drank two Sprite Delights; that she did not consume any alcohol; that Mansfield arrived near the end of the lunch; that "she [could not] recall what Mansfield had to drink or eat"; that Mansfield "usually gets water"; and that Mansfield " 'rarely' dr[ank] a beer or two and she [could not] recall if he bought a beer that day."

         Later in the interview, the agents produced Brewington's 3 September 2014 receipt from the Sports Zone. Brewington confirmed that her credit card was used to pay the bill, and that her signature appeared on the receipt. Brewington also agreed that based on the price of the two mixed drinks (approximately $8.00 apiece), the drinks must have contained alcohol. However, after explaining that Sullivan never charged her for Sprite Delights, Brewington maintained that she had not ordered any alcohol and that it was possible that Mansfield had ordered the two mixed drinks and the three beers listed on the receipt.

         At that point in the interview, Assistant Special Agent in Charge Cherry obtained Mansfield's cell phone number from Brewington, went to another room, and called Mansfield. Upon his return to the interview room, Assistant Special Agent in Charge Cherry reported that, according to Mansfield, no alcohol was ordered at the lunch, but if he did consume an alcoholic drink at the Sports Zone, it would have been a beer. After considering Mansfield's statement to Assistant Special Agent in Charge Cherry and noticing certain discrepancies in Brewington's statements, Special Agent in Charge Perry informed Brewington that she would be required to undergo a polygraph examination. The results of that examination included a determination that Brewington had answered the following question untruthfully: "Did you drink any alcohol at lunch on September 3, 2014? (Answer: 'No')[.]" The polygraph report also contained statements that Brewington made during a post-examination interview:

[Special Agent] Brewington was interviewed post examination by [Assistant Special Agent in Charge] Smith. [Special Agent] Brewington stated that her memory was affected by some of her medical conditions. She further stated that she possibly could have consumed a sip of alcohol from her companion's drink and she could not remember. After thinking about the incident further, [Special Agent] Brewington stated she was "sure" she did not consume any alcohol at lunch on that particular date and time.

By letter dated 3 June 2015, the SBI notified Brewington that she was required to attend a pre-disciplinary conference with SBI Special Agent in Charge W. Ty Sawyer. The specific allegations to be discussed were that Brewington had consumed alcohol while on official duty and had been untruthful during the internal investigation. Among the conference's purposes were to allow Brewington to present facts that would counter the allegations or support her case and to respond with any information that was relevant to the question of whether disciplinary action, up to and including dismissal, was proper. The pre-disciplinary Conference was held on 10 June 2015. The next day, the SBI issued a letter informing Brewington of "Management's decision . . . to dismiss [her] effective June 11, 2015, based on Unacceptable Personal Conduct." The dismissal decision was based upon Brewington's consumption of alcoholic beverages while on duty, and her untruthfulness during the internal investigation process.

         After receiving the dismissal letter, Brewington appealed the SBI's decision to the DPS's Employment Advisory Committee (EAC). As part of the grievance process, Brewington submitted two "Employee/Witness" forms requesting that Sullivan and Mansfield be permitted to appear as voluntary witnesses at the EAC Hearing. This request was denied. On 25 August 2015, the EAC heard Brewington's appeal, and considered the internal investigation file, the polygraph examination report, and other statements and evidence that Brewington presented on her own behalf. The EAC also considered the statements that Sullivan and Mansfield gave to the SBI. In a memorandum dated 7 September 2015, the EAC "found that [while] the dismissal letter specified that Ms. Brewington was dismissed for consuming alcohol, . . . the evidence presented during the hearing indicated that she purchased alcohol on duty." The EAC concluded that this distinction was significant. Although the EAC recognized that "both purchasing and consuming alcohol on duty . . . constituted Unacceptable Personal Conduct[, ]" it ultimately recommended that Brewington's dismissal be overturned.

         Once EAC's memorandum was issued, the SBI's Deputy Director, Janie Sutton, was charged with issuing a final recommendation to SBI Director B.W. Collier concerning Brewington's dismissal. In carrying out this responsibility, Deputy Director Sutton considered the internal investigation file, spoke with Special Agent in Charge Perry and his staff, consulted with the SBI's legal counsel, and reviewed the EAC's memorandum. Deputy Director Sutton also spoke with

         Brewington's immediate supervisor and reviewed the portion of Brewington's personnel file that pertained to three previous disciplinary actions. Brewington had been given written warnings for "Unsatisfactory Job Performance" in August 2013 and September 2014, respectively, for failing to "properly store and secure evidence" that was under her control and for failing to "complete criminal investigative reports and case assignments in a timely manner." On 4 March 2015, Brewington was demoted from the position of "Agent III to Agent II" for, inter alia, failure to comply with certain North Carolina criminal discovery statutes (by neglecting to turn over certain discoverable materials to the appropriate District Attorneys' Offices in several cases) and for a continuing failure to timely complete investigative reports and activities. After completing her independent inquiry into the matter and conferring with Director Collier, Deputy Director Sutton recommended that Brewington's dismissal be upheld.

         On 28 September 2015, Director Collier issued the SBI's final agency decision, which upheld Brewington's dismissal. Director Collier's decision was based upon the following rationale:

The facts indicate that you not only violated SBI policy and procedure by consuming alcoholic beverages during the work day; but you were not truthful during the internal investigation process, which is also a violation of SBI policy and procedure. Each of the offenses standing alone is just cause for your dismissal for [unacceptable] personal conduct, especially in light of your disciplinary history. You could just as well be dismissed for unsatisfactory job performance. . . .
Given the fact that you have been given multiple opportunities to conform your performance and conduct to the expected norms of this organization, and you have failed to do so, I do not believe that another demotion or even a suspension or written warning will serve any additional purpose.

On 21 October 2015, Brewington filed a petition for a contested case hearing in the OAH. The case was heard on 11 and 12 January 2016 before Senior Administrative Law Judge (ALJ) Fred G. Morrison, Jr. In a Final Decision entered 29 March 2016, ALJ Morrison made the following pertinent findings of fact:

14.Collier recalled a man arriving toward the end of her lunch with Petitioner, who stayed at the table briefly but he did not sit down or order food and drinks. Collier left shortly after the man arrived. Collier's recollection of her interaction with this man is consistent with Petitioner's oral statements to Special Agent in Charge Kanawha Perry (SAC Perry) made during her May 20, 2015, investigative interview that her friend Michael Mansfield arrived near the end of Collier's and her lunch after Collier and she had already eaten their lunch and that "Mansfield met Collier just before she left."
15.Collier did not remember seeing the man order mixed drinks or drink beer, or there being any beer on the table during her time at lunch. She only recalls seeing the two mixed drinks ordered by Petitioner while they ate lunch together. Collier opined that had the man sat down and ordered and consumed beer she would have remembered it. Collier's testimony in this regard is credible.
. . .
22. Petitioner's testimony that Mansfield arrived at the restaurant "around three o'clock, if not a little before" . . .; that Mansfield came in about midway through her meal with Collier and sat down while they finished their meal. . .; and that Mansfield ordered a beer as soon as he sat down and then "continued to order another beer" while Petitioner and Collier were finishing their meal . . . is not credible in that it conflicts with the statements made by Petitioner to SAC Perry listed in Finding of Fact 14 and with Collier's testimony listed in Findings of Fact 14 and 15. Collier's testimony is more credible.
23.Petitioner's testimony that her friend Mike Mansfield ordered and consumed all of the alcoholic beverages listed on the Sports Zone receipt that she paid with her debit card is not credible, in that it is not reasonable to believe that Mansfield ordered and/or consumed three beers and two mixed alcoholic drinks in the approximate 30 minute time period between 3:28 p.m. when Collier paid her bill and left the restaurant, and 3:57 p.m. when Petitioner paid her bill.
24. It is more likely than not that Mansfield ordered and drank the three beers while Petitioner drank her second mixed drink after Collier left the restaurant. . . .
28. It is more likely than not that Petitioner drank alcoholic beverages while armed and on official duty on September 3, 2014, and made untrue statements to SBI agents during the course of her investigative interview on May 20, 2015. . . .
31. Based on all of the information that she reviewed, Sutton recommended to Director Collier that Petitioner be dismissed. Director Collier adopted that recommendation and designated authority to Sutton to sign the agency's final agency decision dismissing her. She was dismissed from the SBI for unacceptable personal conduct for consuming alcohol while on duty and being untruthful when questioned about the matter during the internal investigation. . . .
32.Sutton, on behalf of the SBI, considered the seriousness of the offenses and Petitioner's disciplinary history which included multiple written warnings (for unsatisfactory work performance) and a recent demotion (for unacceptable personal conduct and unsatisfactory job performance) in determining the appropriate sanction for Petitioner's unacceptable personal conduct. Based on these considerations, Sutton determined that Petitioner's conduct warranted dismissal and she continued to hold that position on behalf of the SBI at hearing.

Based on these and other findings, ALJ Morrison concluded that "substantial evidence" presented at the hearing established that Brewington "consumed an alcoholic beverage during her September 3, 2014 lunch" with Collier, and that Brewington "made untrue statements to SBI agents during her investigative interview on May 20, 2015[.]" ALJ Morrison then concluded that DPS had shown by the preponderance of the evidence that it had just cause to terminate Brewington for unacceptable personal conduct.

         Brewington now appeals from ALJ Morrison's Final Decision.

         II. Standard of Review

Section 150B-51 of our State's Administrative Procedure Act (APA) establishes the scope and standard of review that we apply to the final decision of an administrative agency. Harris v. N.C. Dep't of Pub. Safety, No. COA16-341, __ N.C.App. __, __, 798 S.E.2d 127, 133, 2017 WL 900037 (Mar. 7, 2017). The APA authorizes this Court to affirm or remand an ALJ's final decision, N.C. Gen. Stat. § 150B-51(b) (2015), but such a decision may be reversed or modified only
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 [ALJ];
(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.

Id. The particular standard applied to issues on appeal depends upon the nature of the error asserted. "It is well settled that in cases appealed from administrative tribunals, questions of law receive de novo review, whereas fact-intensive issues such as sufficiency of the evidence to support an agency's decision are reviewed under the whole-record test." N. Carolina Dep't of Env't & Nat. Res. v. Carroll, 358 N.C. 649, 659, 599 S.E.2d 888, 894 (2004) (brackets, quotation marks and citation omitted).

         To that end, we review de novo errors asserted under subsections 150B-51(b)(1)-(4). N.C. Gen. Stat. § 150B-51(c) (2015). Under the de novo standard of review, the reviewing court "considers the matter anew and freely substitutes its own judgment[.]" Carroll, 358 N.C. at 660, ...

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