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Brown v. Fayetteville State University

Court of Appeals of North Carolina

January 7, 2020

RAY DION BROWN, Petitioner

          Heard in the Court of Appeals 5 September 2019.

          Appeal by Petitioner from Final Decision entered 10 July 2018 by Administrative Law Judge Stacey Bice Bawtinhimer in the Office of Administrative Hearings No. 18 OSP 0040.

          The Angel Law Firm, PLLC, by Kirk J. Angel, for petitioner-appellant.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Vanessa N. Totten, for respondent-appellee.

          HAMPSON, JUDGE.

         Factual and Procedural Background

         Ray Dion Brown (Petitioner) appeals from a Final Decision of the Administrative Law Judge (ALJ) concluding Fayetteville State University (Respondent or FSU) failed to show its decision to terminate Petitioner was for "just cause" but further concluding Petitioner was not entitled to reinstatement and additional damages based on after-acquired evidence of Petitioner's misconduct. The Record before us tends to show the following:

         Petitioner began employment with Respondent as a housekeeper on a temporary basis in June 2000. On 21 August 2000, Petitioner submitted an application for full-time employment with Respondent, and on 1 February 2001, Respondent hired Petitioner into a permanent position as a housekeeper, thereby rendering Petitioner a "career State employee" under N.C. Gen. Stat. § 126-1.1(a). Petitioner continued working in this position until Respondent fired him on 26 July 2017.

         On 14 July 2017, Petitioner was assigned to clean the FSU library. While in the library, Petitioner took an iPhone charger cube (charger) from Library Technician Man-Yee Chan's (Chan) desk. After realizing the charger was missing, Chan contacted her supervisor to report the missing charger and to request viewing security camera footage. Chan testified she did not recognize Petitioner on the footage and also could not remember whether she had given Petitioner permission to use the charger, even though in the past she had given several other coworkers permission to use the charger. Petitioner asserted Chan had previously given him permission to use her charger.

         On 20 July 2017, Petitioner was placed on Investigatory Leave with Pay for "stealing an item from a staff member's desk." After attending a pre-disciplinary conference, Respondent notified Petitioner on 26 July 2017 in writing that he was dismissed for unacceptable personal conduct for "stealing a staff member's personal item from their . . . desk." Petitioner appealed his discharge through Respondent's Internal Grievance Process, and Respondent issued a Final University Decision upholding Petitioner's dismissal on 19 December 2017. Thereafter, on 23 January 2018, Petitioner filed a Petition for a Contested Case Hearing with the Office of Administrative Hearings (OAH), alleging his termination was without just cause. The matter came on for hearing before the ALJ on 18 May 2018.

         Sometime prior to this hearing, Respondent submitted a Motion for Summary Judgment.[1] The ALJ found that in this Motion, Respondent alleged for the first time that dismissal of Petitioner's claims was warranted because Petitioner had falsified his employment application in 2000 by "submitt[ing] false and misleading information about his criminal background[.]" Respondent asserted it first learned of Petitioner's alleged false application on 9 August 2017 and that Petitioner would have been terminated immediately for this reason. Although Respondent learned of this falsification on 9 August 2017 during the Internal Grievance Process, Respondent did not disclose this evidence to Petitioner until it filed its Motion for Summary Judgment sometime prior to the hearing before the ALJ.

         Petitioner's 2000 job application asked whether Petitioner had "ever been convicted of an offense against the law other than a minor traffic violation[.]" If answered in the affirmative, the application requested the applicant to "explain fully on an additional sheet." Petitioner listed driving without a license as his only prior criminal conviction. During an offer of proof at the hearing before the ALJ, Petitioner acknowledged that prior to submitting his 2000 job application with FSU, he had been convicted of carrying a concealed weapon, possession of drug paraphernalia, resisting an officer, and larceny. Petitioner, however, contended there was an additional page on his application that was not presented at the hearing showing he did disclose these prior convictions. Also during this offer of proof by Respondent, FSU's Director of Facilities Operation, who directly oversaw Petitioner, testified that had Respondent known of Petitioner's prior criminal history, Respondent would have terminated Petitioner immediately in accordance with Respondent's Employment Background and Reference Check Policy.

         At the hearing on 18 May 2018, the ALJ bifurcated the hearing to address two separate issues: "Whether Respondent . . . had just cause to terminate Petitioner from his position as a Housekeeper with FSU and, if not, what is the appropriate remedy considering the 'after acquired' evidence of Petitioner's misconduct?" Regarding the first issue, the ALJ found "there [was] no credible evidence to suggest Petitioner willfully and intentionally stole the charger cube from Ms. Chan" and therefore concluded "Respondent's termination of Petitioner was without 'just cause.'" Turning to the after-acquired evidence of Petitioner's failure to disclose his prior criminal convictions on his 2000 job application, the ALJ in its Final Decision made the following relevant Conclusions of Law:

27. Even though FSU lacked "just cause" to terminate Petitioner on July 26, 2017, FSU provided substantial "after-acquired" evidence demonstrating that Petitioner provided false and misleading information on his August 21, 2000 State Application for Employment. FSU did not discover that Petitioner had submitted false and misleading information on his August 21, 2000 job application until August 9, 2017 after Petitioner was terminated.
28. "Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit." McKennon v. Nashville Banner Publ. Co., 513 U.S. 352, 362, 130 L.Ed.2d 852, 864 (1995). The North Carolina Court of Appeals explicitly adopted the after-acquired evidence doctrine established by McKennon. See Johnson v. Bd. of Trs. of Durham Tech. Cmty. College, 157 N.C.App. 38, 48, 577 S.E.2d 670, 675 (2003). If an employer demonstrates that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of discharge, neither reinstatement nor front pay are allowed, and back pay is limited to the time between the discharge and the time of discovery. Id. at 48-49, 577 S.E.2d at 676.
29. "[F]alsification of a State application or in other employment documentation" also constitutes unacceptable personal conduct. 25 ...

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