{ "id": 8527900, "name": "DIANE WIGGINS JARRETT, Petitioner v. N.C. DEPT. OF CULTURAL RESOURCES, Respondent", "name_abbreviation": "Jarrett v. N.C. Dept. of Cultural Resources", "decision_date": "1991-02-05", "docket_number": "No. 9010SC362", "first_page": "475", "last_page": "482", "citations": [ { "type": "official", "cite": "101 N.C. App. 475" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "273 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564256, 8564233, 8564290, 8564187 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0107-03", "/nc/301/0107-02", "/nc/301/0107-04", "/nc/301/0107-01" ] }, { "cite": "269 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "300 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562647 ], "year": 1980, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0381-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-36", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1989, "opinion_index": 0 }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "276 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2644506 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0275-01" ] }, { "cite": "372 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "344" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525947 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "463" }, { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0459-01" ] }, { "cite": "375 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527622 ], "year": 1989, "pin_cites": [ { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0737-01" ] }, { "cite": "372 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "890", "parenthetical": "applying the same standard of review of other civil cases" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526141 ], "year": 1988, "pin_cites": [ { "page": "531", "parenthetical": "applying the same standard of review of other civil cases" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0527-01" ] }, { "cite": "365 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566467, 2568453, 2572653, 2570776, 2570206 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0746-01", "/nc/321/0746-04", "/nc/321/0746-05", "/nc/321/0746-02", "/nc/321/0746-03" ] }, { "cite": "362 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "296" }, { "page": "296" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358977 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "638-39" }, { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0637-01" ] }, { "cite": "281 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "29-30", "parenthetical": "Supreme Court applied N.C. Gen. Stat. \u00a7 150A-51 (now \u00a7 150B-51) in reviewing decision of the North Carolina Safety and Health Review Board" } ], "opinion_index": 0 }, { "cite": "303 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574954 ], "year": 1981, "pin_cites": [ { "page": "581-82", "parenthetical": "Supreme Court applied N.C. Gen. Stat. \u00a7 150A-51 (now \u00a7 150B-51) in reviewing decision of the North Carolina Safety and Health Review Board" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0573-01" ] } ], "analysis": { "cardinality": 710, "char_count": 15496, "ocr_confidence": 0.758, "pagerank": { "raw": 3.286080796319552e-07, "percentile": 0.871035531415152 }, "sha256": "c50d59f24073c72b0ecc910498e84c181a5cb5b30c0ec62efdd4a0f89b0b1804", "simhash": "1:89d057b8d5252c1b", "word_count": 2459 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Phillips and Greene concur." ], "parties": [ "DIANE WIGGINS JARRETT, Petitioner v. N.C. DEPT. OF CULTURAL RESOURCES, Respondent" ], "opinions": [ { "text": "ORR, Judge.\nThe North Carolina Administrative Procedure Act (APA), codified at Chapter 150B of the General Statutes, governs judicial review of administrative agency decisions. In the present case, the standard of review for an appellate court is governed by N.C. Gen. Stat. \u00a7 150B-51(b) (1987), the same scope of review utilized by superior courts. See 2 C. Koch, Administrative Law and Practice \u00a7 8.54, at 82 (1985) (no deference given to superior court); Brooks v. McWhirter Grading Co., 303 N.C. 573, 581-82, 281 S.E.2d 24, 29-30 (1981) (Supreme Court applied N.C. Gen. Stat. \u00a7 150A-51 (now \u00a7 150B-51) in reviewing decision of the North Carolina Safety and Health Review Board); Watson v. North Carolina Real Estate Comm\u2019n, 87 N.C. App. 637, 638-39, 362 S.E.2d 294, 296 (1987), cert. denied, 321 N.C. 746, 365 S.E.2d 296 (1988); contra Henderson v. North Carolina Dep\u2019t of Human Resources, 91 N.C. App. 527, 531, 372 S.E.2d 887, 890 (1988) (applying the same standard of review of other civil cases). Section 150B-51(b) provides in part that a court in reviewing the final decision of an agency may reverse the agency\u2019s decision\n... if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(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\n(6) Arbitrary and capricious.\nThe sole issue raised by this appeal is whether the agency\u2019s decision regarding the credibility of the witnesses was \u201carbitrary and capricious.\u201d In determining whether an agency decision is arbitrary and capricious, \u201cthe reviewing court does not have authority to override decisions within agency discretion when that discretion is exercised in good faith and in accordance with law.\u201d Lewis v. North Carolina Dep\u2019t of Human Resources, 92 N.C. App. 737, 740, 375 S.E.2d 712, 714 (1989).\nThe \u201carbitrary and capricious\u201d standard is a difficult one to meet. Administrative agency decisions may be reversed as arbitrary or capricious if they are \u201cpatently in bad faith,\u201d or \u201cwhimsical\u201d in the sense that \u201cthey indicate a lack of fair and careful consideration\u201d or \u201cfail to indicate \u2018any course of reasoning and the exercise of judgment\u2019....\u201d [citations omitted]\nId.\n\u201cThe \u2018whole record\u2019 test is also applied when the court considers whether an agency decision is arbitrary and capricious.\u201d Brooks v. Rebarco, Inc., 91 N.C. App. 459, 463, 372 S.E.2d 342, 344 (1988); High Rock Lake Ass\u2019n v. North Carolina Envtl. Management Comm\u2019n, 51 N.C. App. 275, 276 S.E.2d 472 (1981).\n[T]he \u201cwhole record\u201d rule requires the court, in determining the substantiality of evidence supporting the Board\u2019s decision, to take into account whatever in the record fairly detracts from the weight of the Board\u2019s evidence. Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the Board\u2019s result without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn.\nRebarco, 91 N.C. App. at 463, 372 S.E.2d at 344 (quoting Thompson v. Wake County Bd. of Educ., 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977)).\n\u201cWhile our review is limited to assignments of error to the superior court\u2019s order, this court is not required to accord any particular deference to the superior court\u2019s findings and conclusions concerning the Commission\u2019s actions.\u201d Watson, 87 N.C. App. at 640, 362 S.E.2d at 296.\nThe administrative law judge concluded that respondent intentionally discriminated against petitioner in violation of N.C. Gen. Stat. \u00a7 126-36 (1989), which provides that an employee of the State \u201cwho has reason to believe that employment, promotion, training, or transfer was denied him .. . because of his ... political affiliation . . . shall have the right to appeal directly to the State Personnel Commission.\u201d In making its final decision, the State Personnel Commission declined to adopt the recommended decision of the administrative law judge, Regarding the final decision of an agency, the North Carolina Administrative Procedure Act in N.C. Gen. Stat. \u00a7 150B-36 (1987 & Supp. 1990) provides:\n(b) A final decision or order in a contested case shall be made by the agency in writing after review of the official record as defined in G.S. 150B-37(a) and shall include findings of fact and conclusions of law. If the agency does not adopt the administrative law judge\u2019s recommended decision as its final decision, the agency shall state in its decision or order the specific reasons why it did not adopt the administrative law judge\u2019s recommended decision. The agency may consider only the official record prepared pursuant to G.S. 150B-37 in making a final decision or order, and the final decision or order shall be supported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31. '. . .\nHere the State Personnel Commission, which could consider only the official record in making its decision, was entitled to make its own findings of fact and conclusions of law. In declining to adopt the decision of the administrative law judge, the Commission stated specific reasons for not adopting the recommended decision and in addition stated its reasons for declining to adopt certain findings of fact such as those regarding credibility:\nThe Commission specifically declines to adopt that portion of finding #35 dealing with the credibility of Ms. Legg\u2019s assertion of her political party affiliation (or lack thereof). In the absence of specific evidence to the contrary, the Commission finds this testimony credible. The Commission specifically declines to adopt finding #37 in that it does not agree with the ALJ\u2019s assessment of the credibility of Mr. Misenheimer\u2019s testimony. In both these findings, the Commission does not accept the ALJ\u2019s assessment of credibility, which does not appear to be based on the demeanor of either witness, but rather the ALJ\u2019s reactions to the content of the testimony. As such, the Commission feels it is appropriate to decline to accept the credibility decision of the ALJ.\nMs. Legg testified regarding her political affiliation as follows:\nQ. What party are you registered with?\nA. There isn\u2019t anyone in North Carolina that knows that. Do I have to answer that question?\nMs. Bryant: I don\u2019t know of any reason why\u2014\nWitness: I am not a registered voter in the State of North Carolina.\nQ. I didn\u2019t ask you that. I asked you what party you were registered with?\nA. I feel like that is a violation of my \u2014 I could say anything, couldn\u2019t I?\nQ. I would remind you that you are under oath.\nA. I am a registered independent in the State of Virginia.\nQ. Have you ever been a registered Republican?\nA. No.\nMr. Misenheimer testified that he hired Ms. Legg because of her exceptional qualifications and experience including her previous employment at the State Department in Washington, D.C., and her advancement to various positions there, a \u201cslight advantage\u201d as far as her education, past experience involving much responsibility, her animation, her age, her maturity, and her writing ability. The administrative law judge found that Ms. Legg\u2019s testimony regarding her political affiliation and Misenheimer\u2019s testimony regarding his reasons for hiring her were not credible. \u201cThe credibility of witnesses and the probative value of particular testimony are for the administrative body to determine, and it may accept or reject in whole or part the testimony of any witness.\u201d State ex rel. Comm\u2019r of Ins. v. North Carolina Rate Bureau, 300 N.C. 381, 406, 269 S.E.2d 547, 565, reh\u2019g denied, 301 N.C. 107, 273 S.E.2d 300 (1980). The Commission chose to believe Ms. Legg, and that is within its discretion.\nWe note that the evidence reflects only that Ms. Legg\u2019s application was referred to Cultural Resources by the Governor\u2019s Office and that Ms. Legg had a friend who worked in the Governor\u2019s Office and suggested she send in her application. There is no evidence whatsoever to indicate that Ms. Legg was hired because of her political affiliation or that petitioner was not promoted because of her political affiliation. Further, there is no evidence in the record to suggest that the actions were the result of any requirement or suggestion by the Governor\u2019s Office that Ms. Legg be hired. At the most, the evidence reflects that the Governor\u2019s Office in referring Ms. Legg was merely recommending that she be interviewed.\nTherefore, we reverse the decision of the trial court and reinstate the decision of the Commission.\nReversed.\nJudges Phillips and Greene concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Robert S. Pierce for petitioner-appellee.", "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Charles J. Murray, for the State." ], "corrections": "", "head_matter": "DIANE WIGGINS JARRETT, Petitioner v. N.C. DEPT. OF CULTURAL RESOURCES, Respondent\nNo. 9010SC362\n(Filed 5 February 1991)\nState \u00a7 12 (NCI3d) \u2014 Personnel Commission \u2014 political discrimination-determination of credibility\nThe trial court erred by reversing the State Personnel Commission in an action alleging political discrimination in the hiring of a State employee where the administrative law judge found that the testimony of the person who was hired (Ms. Legg) that she was registered Independent in Virginia and had never been a registered Republican was not credible; the Personnel Commission declined to accept the credibility decision of the administrative law judge and concluded that respondent had a nondiscriminatory business reason to justify its actions; and the trial court reinstated the decision of the administrative law judge. The Commission acted within its discretion in choosing to believe the witness; moreover, it was noted that there was no evidence to indicate that Ms. Legg was hired because of her political affiliation or that petitioner was not promoted because of her political affiliation. N.C.G.S. \u00a7 126-36 (1989).\nAm Jur 2d, Public Officers and Employees \u00a7 53.\nAPPEAL by respondent from order entered 6 February 1990 by Judge E. Lynn Johnson in WAKE County Superior Court. Heard in the Court of Appeals 16 November 1990.\nOn or about 17 June 1986, Frances Legg submitted an application for employment with the State of North Carolina to the office of Wilma Sherrill, Director of Personnel Appointments, Boards and Commissions for the Governor\u2019s Office. Her application was forwarded to Patty Gamin, personnel officer for the Department of Cultural Resources, for consideration for a position as a secretary with Cultural Resources. Because Ms. Legg\u2019s salary requirements were higher than the salary budgeted for the position and no other suitable positions were available, the application was not considered.\nPetitioner Diane Jarrett, who had been employed by the Department of Cultural Resources for over nine years, applied for the same position as a secretary prior to 27 June 1986. She was interviewed by Larry Misenheimer, Administrator of the Historic Sites Section of the Department of Cultural Resources, on 23 June 1986. On 3 July, Mr. Misenheimer told petitioner he was recommending her for the position and submitted the necessary forms to the personnel office. By 8 July, the Director of the Division of Archives and History and the Secretary\u2019s office had approved petitioner\u2019s promotion, and the Cultural Resources\u2019 personnel office prepared the form PD-105 promoting petitioner which was then sent to the State Personnel Office and the State Budget Office.\nOn or after 1 July, the amount available for the salary for this position was increased, and on 9 July a representative from Ms. Sherrill\u2019s office called Ms. Gamin to find out if Ms. Legg had been interviewed since the salary for the position had been increased. On 10 July, Ms. Gamin sent Ms. Legg\u2019s application to Mr. Misenheimer who informed petitioner that Ms. Legg was to be interviewed. On 14 July, Ms. Legg was interviewed. Even though by 15 July petitioner\u2019s promotion had been approved by both State Personnel and State Budget, on 15 July Mr. Misenheimer decided to hire Ms. Legg.\nOn 13 August, petitioner filed a Hearing Request Information Form with the Office of State Personnel. Petitioner alleged that after she had been selected, the necessary personnel papers had been approved, and after the advertised deadline, Ms. Legg was interviewed and got the job over petitioner. Petitioner contends that she did not get the job because she is a Democrat and because Legg was referred by the Governor\u2019s Office and was a Republican.\nFollowing a hearing, the administrative law judge filed her recommended decision on 22 September 1987 stating as a finding of fact that \u201c[t]he testimony of Ms. Legg that she is registered independent in Virginia and has never been a registered republican is not accepted as credible.\u201d Further, the administrative law judge stated:\nMisenheimer\u2019s testimony, that he hired Legg because of affirmative action considerations due to her age, and because of her animation with the idea of an unstructured environment and her exceptional qualifications, and that he possibly would have looked for another candidate, anyway, after recommending the Petitioner, is not accepted as credible.\nThe administrative law judge concluded that respondent \u201cintentionally discriminated against the Petitioner on account of political affiliation in violation of the First and Fourteenth Amendments and G.S. 126-36.\u201d She recommended that the State Personnel Commission order respondent to promote petitioner to the position at issue with back pay plus reasonable attorney\u2019s fees.\nThe State Personnel Commission considered the recommended decision of the administrative law judge, and on 3 May 1988 the Commission issued its decision and order declining to accept the recommended decision. The Full Commission \u201cdecline[d] to accept the credibility decision\u201d of the administrative law judge and concluded that although petitioner \u201chas made out a prima facie case of political affiliation discrimintion [sic],\u201d respondent had a nondiscriminatory business reason to justify its actions and petitioner failed to prove she was discriminated against on the basis of political affiliation. The Commission ordered that petitioner\u2019s claim be dismissed.\nOn 8 June 1988, petitioner filed this action petitioning for judicial review of the final decision of the State Personnel Commission. On 6 February 1990, the trial court ordered that the final decision of the State Personnel Commission be reversed and reinstated the recommended decision of the administrative law judge stating that:\n4. The Order of the Full State Personnel Commission entered on May 3, 1988, in the above-referenced matter, should be reversed, and the Recommended Decision of the Administrative Law Judge, Angela R. Bryant, entered on September 22, 1987, should be reinstated in this matter.\n5. The issues in this matter were resolved by the Administrative Law Judge in her proposed findings. The Administrative Law Judge was the fact finder on the issue of credibility, and the State Personnel Commission was not in the position to determine same.\n6. The issues in respect to the credibility of the witnesses had not been determined by the Commission, and therefore alternate findings are arbitrary and capricious.\nFrom this order, the State appeals.\nRobert S. Pierce for petitioner-appellee.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Charles J. Murray, for the State." }, "file_name": "0475-01", "first_page_order": 503, "last_page_order": 510 }