{ "id": 8521030, "name": "SARAH CAUTHEN, Petitioner-Appellee v. N.C. DEPARTMENT OF HUMAN RESOURCES, CASHWELL CENTER, Respondent-Appellant", "name_abbreviation": "Cauthen v. N.C. Department of Human Resources", "decision_date": "1993-10-05", "docket_number": "No. 928SC1011", "first_page": "238", "last_page": "242", "citations": [ { "type": "official", "cite": "112 N.C. App. 238" } ], "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": "392 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "607", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "326 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309774 ], "year": 1990, "pin_cites": [ { "page": "739", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0732-01" ] }, { "cite": "372 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "91 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525947 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/91/0459-01" ] }, { "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", "year": 1987, "opinion_index": 0 }, { "cite": "87 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358977 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/87/0637-01" ] }, { "cite": "377 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "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" ] }, { "cite": "402 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539448, 2545427, 2542900 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0098-03", "/nc/328/0098-01", "/nc/328/0098-02" ] }, { "cite": "397 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "353-54" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527049 ], "year": 1990, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0498-01" ] } ], "analysis": { "cardinality": 508, "char_count": 9269, "ocr_confidence": 0.76, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.30866104548952467 }, "sha256": "733134f5f6f4455c0973a23c74b3d0d5d9898511ab57ce430c1153fe40a5aca9", "simhash": "1:9dcce34a45356df5", "word_count": 1452 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and GREENE concur." ], "parties": [ "SARAH CAUTHEN, Petitioner-Appellee v. N.C. DEPARTMENT OF HUMAN RESOURCES, CASHWELL CENTER, Respondent-Appellant" ], "opinions": [ { "text": "EAGLES, Judge.\nRespondent brings forward two assignments of error. After a careful review of the briefs, transcript, and record, we reverse.\nI.\nIn its first assignment of error, respondent argues that \u201c[t]he trial court erred in its determination that petitioner was a permanent employee with the right to appeal her dismissal.\u201d We agree.\nIn Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 353-54 (1990), disc. rev. denied, 328 N.C. 98, 402 S.E.2d 430 (1991), this Court stated:\nThis court\u2019s review of a trial court\u2019s consideration of a final agency decision is to determine whether the trial court failed .to properly apply the review standard articulated 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). Our review is further limited to the exceptions and assignments of error set forth to the order of the superior court. Watson v. N.C. Real Estate Commission, 87 N.C. App. 637, 362 S.E.2d 294 (1987), cert. denied, 321 N.C. 746, 365 S.E.2d 296 (1988).\nAn agency decision may be reversed or modified by the reviewing court if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence ... in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nN.C. Gen. Stat. \u00a7 150B-51 (b) (1985). The proper standard to be applied depends on the issues presented on appeal. If it is alleged that an agency\u2019s decision was based on an error of law then a de novo review is required. Brooks, Com\u2019r of Labor v. Rebarco, Inc., 91 N.C. App. 459, 372 S.E.2d 342 (1988).\nHaving set out the proper standard of review, we now determine whether the trial court correctly applied it.\nPermanent State employees have the right to appeal adverse decisions to the State Personnel Commission: those serving under temporary appointments do not have the right to appeal adverse decisions. G.S. 126-35(a) (effective until July 1,1993) (\u201cNo permanent employee subject to the State Personnel Act shall be discharged ... for disciplinary reasons, except for just cause. . . . The employee . . . may appeal to the State Personnel Commission. . . . The State Personnel Commission may adopt, subject to the approval of the Governor, rules that define just cause\u201d); G.S. 126-39 (effective until July 1, 1993) (defining the term \u201cpermanent State employee\u201d).\nThe trial court, in reversing the State Personnel Commission, found that petitioner was a permanent State employee. The term \u201cpermanent State employee\u201d is defined inter alia as a person \u201cin a grade 60 or lower position who has been continuously employed by the State of North Carolina for the immediate 12 preceding months.\u201d G.S. 126-39(1) (effective until July 1, 1993) (emphasis added). Here, petitioner\u2019s employment terminated and restarted twice in a 12 month period. During this time, petitioner held two separate temporary appointments: the first temporary appointment was for six months (1 March 1989 through 31 August 1989) and the second temporary appointment was for three months (1 September 1989 through 30 November 1989). The parties stipulated to the two temporary appointments and to their duration. We note that at the beginning of her first temporary appointment, petitioner received a letter from respondent (petitioner\u2019s exhibit 1) stating that \u201c[s]ince your appointment is temporary, you are not eligible for the benefits made available to permanent employees.\u201d Immediately after the end of the second temporary appointment, petitioner began work in a permanent part-time position as a Developmental Technician I (Grade 56) effective 1 December 1989. She worked in this position until 15 March 1990, the date of her dismissal. Petitioner argues that she can tack her two temporary appointments so as to amount to a cumulative nine month period to be added to her three and one-half months of service in her permanent position and thereby achieve the 12 months of continuous employment necessary to be considered a permanent State employee under G.S. 126-39(1).\n\u201cWhere an issue of statutory interpretation arises, the construction adopted by those who execute and administer the law in question is highly relevant.\u201d State v. Tew, 326 N.C. 732, 739, 392 S.E.2d 603, 607 (1990) (citations omitted). See G.S. 126-4. We find that the State Personnel Commission\u2019s interpretation of G.S. 126-39 is correct and that the trial court erred. Under the North Carolina Administrative Code, \u201c[a] temporary appointment is an appointment for a limited term, normally not to exceed three to six months, to a permanent or temporary position. When sufficiently justified, a longer period of time may be requested; but in no case shall the temporary employment period exceed 12 consecutive months.\u201d N.C. Admin. Code title 25, 01C.0405. We note that permanent State employees receive several benefits which temporary employees are not entitled to receive. See N.C. Admin. Code title 25 01E.0203 (vacation leave); N.C. Admin. Code title 25, 01E.0301 (sick leave); N.C. Admin. Code title 25, 01E.0804 (military leave); N.C. Admin. Code title 25, 01E.0908 (paid holidays). When all of these provisions of the Code are considered together with G.S. 126-39 and G.S. 126-35, it is clear that temporary employees do not have the same benefits as permanent employees; indeed, under the express language used in the Code, a temporary employment period cannot \u201cexceed 12 consecutive months.\u201d N.C. Admin. Code title 25, 01C.0405. To hold that petitioner became a permanent State employee by virtue of tacking her two temporary appointments to her three and one-half month permanent position would in effect establish a quasi-tenure system in temporary employment which neither the General Assembly nor the State Personnel Commission intended. We decline to adopt this interpretation. Accordingly, we reverse the trial court.\nIn its second assignment of error, respondent contends that \u201c[t]he trial court erred in finding that there was not substantial evidence in the record to support just cause for the dismissal.\u201d Given our disposition of the first issue, supra, we need not address this assignment of error.\nFor the reasons stated, the trial court\u2019s 6 July 1992 order is reversed. We remand the cause to the trial court for entry of an order vacating that order, and entering in lieu thereof an order affirming the decision of the State Personnel Commission dismissing petitioner\u2019s appeal for lack of subject matter jurisdiction.\nReversed and remanded.\nJudges ORR and GREENE concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Eastern North Carolina Legal Services, Inc., by Wesley Abney, for petitioner-appellee.", "Attorney General Lacy H. Thornburg, by Assistant Attorney General Diane Martin Pomper, for respondent-appellant." ], "corrections": "", "head_matter": "SARAH CAUTHEN, Petitioner-Appellee v. N.C. DEPARTMENT OF HUMAN RESOURCES, CASHWELL CENTER, Respondent-Appellant\nNo. 928SC1011\n(Filed 5 October 1993)\nPublic Officers and Employees \u00a7 42 (NCI4th)\u2014 temporary and permanent positions equalling 12 V2 months \u2014tacking not allowed \u2014 petitioner not permanent State employee\nPetitioner did not become a permanent State employee by virtue of tacking her six-month and three-month temporary appointments to her three and one-half month permanent position, and petitioner therefore had no right to appeal her dismissal. N.C.G.S. \u00a7 126-39.\nAm Jur 2d, Civil Service \u00a7 13 et seq.\nAppeal by respondent from order entered 6 July 1992 by Judge Ernest B. Fullwood in Lenoir County Superior Court. Heard in the Court of Appeals 17 September 1993.\nRespondent appeals from the trial court\u2019s 6 July 1992 order which reversed the State Personnel Commission\u2019s \u201cDecision and Order\u201d of 21 February 1992. In its 21 February 1992 \u201cDecision and Order,\u201d the State Personnel Commission concluded as follows:\nPrior to the termination of her employment with the Respondent, the Petitioner had been employed by the Respondent for the immediate 12 xk months preceding the dismissal in three paygrade 56 positions as Health Care Technician I or Developmental Technician I. Petitioner was employed for six months in a temporary full-time appointment. Following the termination of that temporary appointment she was rehired for three months in a temporary full-time appointment and upon the termination of that temporary appointment she was hired and worked for three and one-half months in a permanent part-time position. Petitioner\u2019s conduct on March 3, 1990 constituted just cause for dismissal. The Petitioner was not a \u201cpermanent State employee\u201d as defined in N.C.G.S. 126-39 and therefore did not have a right to appeal her dismissal from employment.\nThe State Personnel Commission hereby orders that Petitioner\u2019s appeal be dismissed for lack of subject matter jurisdiction.\nIn reversing the State Personnel Commission\u2019s decision and order, supra, the trial court concluded that the State Personnel Commission\u2019s decision and order was \u201cerroneous as a matter of law\u201d and held that petitioner was a permanent State employee. The trial court ordered that respondent reinstate petitioner, award \u201cfull back benefits,\u201d and pay attorney\u2019s fees. Respondent appeals.\nEastern North Carolina Legal Services, Inc., by Wesley Abney, for petitioner-appellee.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Diane Martin Pomper, for respondent-appellant." }, "file_name": "0238-01", "first_page_order": 268, "last_page_order": 272 }