{ "id": 8524132, "name": "JOYCE SHERROD, Petitioner v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, Respondent", "name_abbreviation": "Sherrod v. North Carolina Department of Human Resources", "decision_date": "1992-03-03", "docket_number": "No. 9110SC241", "first_page": "526", "last_page": "534", "citations": [ { "type": "official", "cite": "105 N.C. App. 526" } ], "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": "90 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1956, "opinion_index": 0 }, { "cite": "243 N.C. 405", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625334 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/243/0405-01" ] }, { "cite": "375 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "citing Burton v. City of Reidsville, 243 N.C. 405, 90 S.E.2d 700 (1956)" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527622 ], "year": 1989, "pin_cites": [ { "parenthetical": "citing Burton v. City of Reidsville, 243 N.C. 405, 90 S.E.2d 700 (1956)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0737-01" ] }, { "cite": "399 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736704, 4734882, 4738767, 4739771, 4732061 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0507-03", "/nc/318/0507-02", "/nc/318/0507-01", "/nc/318/0507-05", "/nc/318/0507-04" ] }, { "cite": "342 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "80 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523825 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/80/0339-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-34", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "377 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "opinion_index": 0 }, { "cite": "323 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562862, 2566384, 2561907, 2560377, 2564315 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/323/0704-02", "/nc/323/0704-04", "/nc/323/0704-05", "/nc/323/0704-03", "/nc/323/0704-01" ] }, { "cite": "371 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "91 N.C. App. 342", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525537 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/91/0342-01" ] } ], "analysis": { "cardinality": 696, "char_count": 18666, "ocr_confidence": 0.783, "pagerank": { "raw": 3.341221514669505e-07, "percentile": 0.8741615823934137 }, "sha256": "90ebd03d9b119b163cc34e9cce1963675ef0e752fe28887b1db62d38971522d5", "simhash": "1:1f2fd1fa55d36c51", "word_count": 2927 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Lewis and Walker concur." ], "parties": [ "JOYCE SHERROD, Petitioner v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, Respondent" ], "opinions": [ { "text": "WELLS, Judge.\nPursuant to N.C. Gen. Stat. \u00a7 150B-52, our review of a trial court\u2019s consideration of a final agency decision is to determine whether the trial court committed any errors of law which would be based upon its failure to properly apply the review standard set forth in N.C. Gen. Stat. \u00a7 150B-51. In re Kozy, 91 N.C. App. 342, 371 S.E.2d 778 (1988), disc. review denied, 323 N.C. 704, 377 S.E.2d 225 (1989). A reviewing court may affirm the agency\u2019s decision or remand the case for further proceedings. N.C. Gen. Stat. \u00a7 150B-51 (1991). Additionally, the reviewing court may reverse or modify the agency\u2019s decision 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(4) Affected by other error of law;\n(5) Unsupported by substantial evidence admissible ... in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nId.\nPetitioner first contends the trial court erred in concluding the Commission\u2019s decision that it lacked subject matter jurisdiction was constitutional. Petitioner alleges there was sufficient evidence in the record to show the decision unconstitutionally deprived her of the full and fair hearing required by the due process clause of both the United States and North Carolina Constitutions. We find no merit to this argument.\nThe respondent\u2019s grievance procedure provides specific time limits for the filing of an appeal at each stage of the procedure. Further, the process provides that \u201ca grievant who fails to comply . . . with procedures set out in this directive . . . may be deemed to have abandoned his/her appeal.\u201d At each stage of the grievance procedure, petitioner was furnished information about what steps she had to take in order to advance to the next stage of the process and when these steps had to be taken. Further, petitioner was provided information about where she could obtain procedural assistance with her appeals if needed. Petitioner\u2019s appeal at the third stage of the internal process was dismissed due to her failure to comply with the time provided to file her appeal. A permanent state employee is statutorily required to follow the grievance procedure established by his/her department or agency. N.C. Gen. Stat. \u00a7 126-34 (1991). On this record, we perceive that not only was there no denial of due process, but that at every stage of these proceedings, petitioner\u2019s due process rights were fully protected. Petitioner was given notice of the reasons for her dismissal and a pre-termination hearing. The internal process also afforded petitioner the opportunity for a full and fair post-termination hearing, only requiring that petitioner properly follow the procedure to obtain it. This argument must be rejected.\nPetitioner next contends the Commission\u2019s conclusion that it lacked subject matter jurisdiction was affected by other error of law. Petitioner argues the notice she received concerning her dismissal did not comply with the statutory requirements. First, petitioner contends the notice was inadequate because it was given to her simultaneously with her dismissal instead of prior to her termination. Secondly, petitioner argues the notice was insufficient because it did not specify the acts or omissions which justified the disciplinary action. We disagree.\nN.C. Gen. Stat. \u00a7 126-35 provides, in pertinent part:\nNo permanent employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause. In cases of such disciplinary action, the employee shall, before the action is taken, be furnished with a statement in writing setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employee\u2019s appeal rights.\nAs stated previously by this Court, \u201c[w]e do not read G.S. 126-35 to prevent notice from being given simultaneously with the disciplinary action. . . . The purpose of G.S. 126-35 is to provide the employee with a written statement of the reasons for [her] discharge so that the employee may effectively appeal [her] discharge.\u201d Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 342 S.E.2d 914, cert. denied, 318 N.C. 507, 399 S.E.2d 862 (1986). (Emphasis in original.) The purpose of the statute is to prevent the employer from discharging the employee without notice and then, after the fact, finding a justifiable reason for the dismissal. Id.\nAt the pre-termination hearing, petitioner was notified that certain property, identified as belonging to the Center, had been found in her residence pursuant to the execution of a search warrant. Additionally, the letter of dismissal stated:\nOn February 15,1988, it was reported that you were in possession of stolen property from O\u2019Berry Center. Our Security Department obtained that property on February 17, 1988. On February 23, 1988, additional property belonging to the State of North Carolina and the clients of O\u2019Berry Center was found in your possession. . . . All of these items were tagged with O\u2019Berry/client control numbers.\nIn the predismissal conference held today, February 24, 1988, you were notified of the above infractions.\nThere was substantial evidence in the record to show petitioner received adequate notice to enable her to effectively appeal her termination. Furthermore, petitioner effectively presented her appeal to the ALJ as is evidenced by both the record and the ALJ\u2019s recommended decision in her favor. Thus, the trial court properly concluded the written notice of dismissal was adequate under the requirements of N.C. Gen. Stat. \u00a7 126-35.\nAs her next assignment of error, petitioner contends the trial court erred in concluding there was substantial evidence to support the trial court\u2019s conclusion that the time provision in question was not vague or ambiguous. Again, we disagree.\nThe pertinent provisions in question state:\nStep 3 \u2014 Appeal to the Secretary, Department of Human Resources\n(a) If the matter is not resolved to the grievant\u2019s satisfaction by the decision at Step 2, or if the grievant has not received a decision within the time limit set for Step 2, [not more than thirty calendar days from receipt of the Step 2 appeal] and the issue is subject to further appeal, he/she may appeal for a review by the Secretary of the Department of Human Resources.\n(b) . . . The notice must be received by the unit personnel manager within fifteen calendar days from the date the griev-ant receives the Step 2 decision or from the date the Step 2 decision should have been issued.\nIn her letter of appeal to the Office of State Personnel, petitioner stated the reason she had \u201cfailed to timely file\u201d her Step 3 appeal was because she \u201cerroneously assumed that [she] had fifteen (15) working days to file [her] appeal.\u201d The trial court found as a fact that petitioner never suggested she had any problem determining when the fifteen-day period began. Petitioner\u2019s alleged confusion resulted from her failing to distinguish between calendar days and working days. The provision is clear with regard to this distinction, as were the letters petitioner received containing information on how she was to appeal to the next step of the internal grievance procedure. The trial court\u2019s conclusion that the provisions, when read together, were not ambiguous or vague, was proper.\nIn her last assignment of error, petitioner contends the trial court erred in failing to find the Commission\u2019s decision to dismiss her appeal was arbitrary and capricious. Petitioner argues this constituted error because the agency\u2019s decision to enforce the procedural deadline resulted in manifest unfairness under the circumstances. We disagree.\nThe respondent\u2019s grievance procedure provides that \u201ca griev-ant who fails to comply with the . . . procedures set out in this directive . . . may be deemed to have abandoned his/her appeal.\u201d The agency\u2019s decision regarding whether or not an appeal will be deemed abandoned in such circumstances is discretionary. A reviewing court does not have the authority to override decisions within the agency\u2019s discretion if the agency exercises that discretion in good faith and in accordance with the law. Lewis v. N.C. Dept. of Human Resources, 92 N.C. App. 737, 375 S.E.2d 712 (1989) (citing Burton v. City of Reidsville, 243 N.C. 405, 90 S.E.2d 700 (1956)). Imposing procedural requirements which result in manifest unfairness under the circumstances may be arbitrary and capricious. Id.\nAs was the situation in Lewis, even though we find the result in this case to be unfortunate, we cannot say it is manifestly unfair under the circumstances. Petitioner was given information regarding the internal grievance procedure. She was informed at each level of the process what steps were necessary to contest the decision at that level and when those steps had to be completed. Additionally, petitioner was given information on how to obtain procedural guidance in the appeal process. Petitioner filed her first two appeals within the requisite fifteen-day calendar period. The record provides substantial evidence that the agency acted in good faith and in accordance with the applicable statutes when making the determination to dismiss the appeal. We agree with the trial court\u2019s finding that the manifest unfairness relied upon by petitioner had to do with the merits of her dismissal not the grievance procedure itself. The trial court properly concluded the agency\u2019s decision to enforce the procedural deadline was neither arbitrary nor capricious.\nIn conclusion, as to each assignment of error we find the trial court applied the proper standard of review without error of law. Thus, the decision below must be and is\nAffirmed.\nJudges Lewis and Walker concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Dees, Smith, Powell, Jarrett, Dees & Jones, by Michael M. Jones, for petitioner-appellant.", "Attorney General Lacy H. Thornburg, by Associate Attorney General Diane Martin Pomper, for respondent-appellee." ], "corrections": "", "head_matter": "JOYCE SHERROD, Petitioner v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, Respondent\nNo. 9110SC241\n(Filed 3 March 1992)\n1. State \u00a7 12 (NCI3d) \u2014 termination of employment \u2014 notice of reasons for dismissal \u2014 opportunity for hearing \u2014 information about appeals process \u2014 no denial of due process\nPetitioner was not deprived of due process in her termination of unemployment where petitioner was given notice of the reasons for her dismissal and a pre-termination hearing; the internal process afforded her the opportunity for a full and fair post-termination hearing, only requiring that petitioner properly follow the procedure to obtain it; at each stage of the grievance procedure petitioner was furnished information about what steps she had to take in order to advance to the next stage of the process and where these steps had to be taken; and petitioner was provided information about where she could obtain procedural assistance with her appeals if needed.\nAm Jur 2d, Civil Service \u00a7\u00a7 68, 71.\n2. State \u00a7 12 (NCI3d| \u2014 written notice given simultaneously with dismissal \u2014 no error\nWritten notice of petitioner\u2019s dismissal from her employment was adequate under the requirements of N.C.G.S. \u00a7 126-35, though it was given to her simultaneously with her dismissal, since the statute does not prevent notice from being given simultaneously with dismissal but is instead designed to give the employee a written statement' of the reasons for discharge so that the employee may effectively appeal her discharge; moreover, the notice in this case informed petitioner that she was being discharged because property belonging to the State and the clients of O\u2019Berry Center was found in her possession.\nAm Jur 2d, Civil Service \u00a7 68.\n3. State \u00a7 12 (NCI3d| \u2014 employee\u2019s appeal of dismissal \u2014 time provision not vague or ambiguous\nEvidence was sufficient to support the trial court\u2019s conclusion that the time provision with regard to petitioner\u2019s appeal of her dismissal from employment was not vague or ambiguous where the governing provision and letters which petitioner received containing information on how she was to appeal to the next step of the internal grievance procedure clearly referred to \u201ccalendar days,\u201d while petitioner admitted that she erroneously assumed she had a certain number of \u201cworking days\u201d to file her appeal.\nAm Jur 2d, Civil Service \u00a7 71.\n4. State \u00a7 12 (NCI3d)\u2014 employee\u2019s appeal of dismissal \u2014 enforcement of procedural deadline \u2014 action not arbitrary or capricious\nThe trial court properly concluded that respondent agency\u2019s decision to enforce a procedural deadline and dismiss petitioner\u2019s appeal because it was not timely filed was neither arbitrary nor capricious where petitioner was given information as to how and when to file an appeal and where to get help if she needed it; petitioner filed her first two appeals within the prescribed time; and respondent acted in good faith and in accordance with the applicable statutes when making the determination to dismiss the appeal.\nAm Jur 2d, Civil Service \u00a7 71.\nAPPEAL by petitioner from judgment entered 25 January 1991 in WAKE County Superior Court by Judge Henry V. Barnette, Jr. Heard in the Court of Appeals 4 December 1991.\nAt the time this action arose, petitioner worked as a Health Care Technician I at the O\u2019Berry Center (hereinafter \u201cCenter\u201d), a Department of Human Resources institution. Petitioner had been continuously employed by respondent for approximately 10 years preceding her dismissal on 24 February 1988.\nPetitioner\u2019s sister, Betty Sutton, was a former employee of the Center, who had been discharged. On or about 15 February 1988, Ms. Sutton reported to Center officials that petitioner was stealing property from the Center. Ms. Sutton gave the officials a red skirt marked with a Center resident\u2019s name. She told the officials that petitioner had stolen the skirt and given it to her daughter (petitioner\u2019s niece). Based on Ms. Sutton\u2019s information, the Center obtained a search warrant on 23 February 1988 and searched the home where petitioner resided with her parents. Pursuant to the search, officials found three items of personal property later identified as belonging to the Center, to wit: a towel, a shampoo bottle and a deodorant bottle.\nOn 24 February 1988, a pre-termination conference was held at the Center. When questioned about the stolen items removed from her residence, petitioner denied taking any of them from the Center. Petitioner informed the officials she was being framed by her sister. In fact, when later confronted by petitioner, Ms. Sutton admitted she had made up the report.\nBy letter dated 24 February 1988, petitioner was notified that \u201ceffective immediately\u201d she was dismissed from her position at the Center. The letter quoted a provision of the State Personnel Manual which states: \u201cAn employee who steals State property or funds or who knowingly misuses State property may be dismissed without prior warning under the personal conduct disciplinary process.\u201d The letter also notified petitioner that she could appeal that decision within fifteen calendar days after receipt of that letter. On the same day, criminal charges were instituted against petitioner regarding the same stolen property. Petitioner was subsequently found not guilty of the criminal charges.\nPetitioner noted an appeal of her dismissal within the requisite fifteen calendar days and requested a conference with the Director of the Center. By letter dated 24 March 1988, the Director informed petitioner that he had received her appeal. The letter indicated he was upholding her termination since petitioner, even though acting pursuant to the advice of counsel, had not provided him any additional information during their meeting about how the stolen items ended up in her possession.\nThe letter from the Director also stated, in pertinent part:\nYou have the right to appeal this decision. In the event you elect to appeal, it must be filed within fifteen (15) calendar days from the date of receipt of this correspondence. If you need procedural guidance in the appeal process, you should contact [the following persons]. .... (Emphasis added.)\nPetitioner received this response on 28 March 1988. Petitioner filed her appeal from the Director\u2019s decision with respondent on 14 April 1988, eighteen days after 28 March 1988. Respondent dismissed petitioner\u2019s appeal for noncompliance with the grievance process: specifically, petitioner had failed to file her appeal within fifteen calendar days from receipt of the Director\u2019s decision.\nOn 11 May 1988, petitioner filed an appeal with the Office of State Personnel. Respondent filed a motion to dismiss and, in the alternative, a motion for summary judgment. In defense to respondent\u2019s motions, petitioner claimed the language of the directive in question was ambiguous. The Administrative Law Judge, (hereinafter \u201cALJ\u201d), denied respondent\u2019s motions and subsequently held a hearing.\nIn his recommended decision, the ALJ concluded, inter alia, that (1) it would be manifestly unfair to allow respondent\u2019s motion to dismiss; (2) petitioner had complied with G.S. \u00a7 126-35 and had not abandoned her appeal efforts; (3) the language of the directive at issue in this case was ambiguous and vague and petitioner had timely filed her appeal based on the literal wording of the provision; and (4) respondent had failed to meet its burden of establishing just cause for petitioner\u2019s discharge. Based on those conclusions, the ALJ recommended petitioner be reinstated.\nThe State Personnel Commission (hereinafter \u201cCommission\u201d) rejected the recommended decision of the ALJ. The Commission concluded that the record indicated petitioner had failed to follow required procedure in filing her appeal and further noted that petitioner admitted in her letter of appeal to the State Personnel Commission that she \u201cfailed to timely file\u201d her appeal from dismissal. Thus, the Commission ordered that \u201cpetitioner\u2019s appeal be dismissed with prejudice for lack of subject matter jurisdiction.\u201d\nHearing was held on petitioner\u2019s petition for judicial review in Wake County Superior Court on 13 November 1990. The court concluded that the provision setting forth the appeal deadline in question was not vague or ambiguous, and further, that it would not be manifestly unfair to dismiss petitioner\u2019s appeal because the \u201cmanifest unfairness relied on by the petitioner ha[d] to do with the merits of the dismissal from employment\u201d not the grievance procedure. The court affirmed the decision of the Commission by judgment entered 25 January 1991. From this judgment, petitioner appeals.\nDees, Smith, Powell, Jarrett, Dees & Jones, by Michael M. Jones, for petitioner-appellant.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Diane Martin Pomper, for respondent-appellee." }, "file_name": "0526-01", "first_page_order": 554, "last_page_order": 562 }