{ "id": 8527848, "name": "LARRY D. OATES, Appellant v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Appellee", "name_abbreviation": "Oates v. North Carolina Department of Correction", "decision_date": "1994-05-03", "docket_number": "No. 938SC645", "first_page": "597", "last_page": "604", "citations": [ { "type": "official", "cite": "114 N.C. App. 597" } ], "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": "397 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498506, 2499917, 2493454, 2495514, 2493374 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0482-04", "/nc/327/0482-05", "/nc/327/0482-01", "/nc/327/0482-02", "/nc/327/0482-03" ] }, { "cite": "392 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "662" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521293 ], "year": 1990, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0125-01" ] }, { "cite": "233 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "293 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "176" } ], "opinion_index": 0 }, { "cite": "306 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568091 ], "year": 1982, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0231-01" ] }, { "cite": "372 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "91 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526141 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/91/0527-01" ] }, { "cite": "432 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "stating that the prerogative to determine the credibility of witnesses and to weigh the evidence rests with the SPC" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526373 ], "year": 1993, "pin_cites": [ { "parenthetical": "stating that the prerogative to determine the credibility of witnesses and to weigh the evidence rests with the SPC" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0730-01" ] }, { "cite": "400 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "70", "parenthetical": "upholding the SPC's decision to decline to adopt the ALJ's credibility findings" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527900 ], "year": 1991, "pin_cites": [ { "page": "482", "parenthetical": "upholding the SPC's decision to decline to adopt the ALJ's credibility findings" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0475-01" ] }, { "cite": "382 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "stating that the original brief sets the issues to be decided on appeal and that a new matter, raised for the first time in a reply brief, will not be considered" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 258", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520368 ], "year": 1989, "pin_cites": [ { "parenthetical": "stating that the original brief sets the issues to be decided on appeal and that a new matter, raised for the first time in a reply brief, will not be considered" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0258-01" ] }, { "cite": "404 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "stating that the prerogative to determine the credibility of witnesses and to weigh the evidence rests with the SPC" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 767", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525729 ], "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "stating that the prerogative to determine the credibility of witnesses and to weigh the evidence rests with the SPC" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0767-01" ] } ], "analysis": { "cardinality": 709, "char_count": 15601, "ocr_confidence": 0.735, "pagerank": { "raw": 1.5647928475206957e-07, "percentile": 0.6775393082762741 }, "sha256": "1fd68dcd9a76b6b62a836dacbb8dd6562e78e2114a2229bb226d7873f426dd0b", "simhash": "1:2360a6f447be869c", "word_count": 2465 }, "last_updated": "2023-07-14T17:01:59.295429+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and LEWIS concur." ], "parties": [ "LARRY D. OATES, Appellant v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Appellee" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nPetitioner presents three arguments for our review, all of which maintain, for various reasons, that the superior court erred in affirming the SPC\u2019s decision. In his first argument, petitioner contends that the SPC\u2019s stated reasons for not adopting the ALJ\u2019s recommended decision are erroneous.\nRespondent contends this argument is not properly before the Court and that our review is limited to a determination of whether the superior court failed to apply the standard of review set forth in G.S. \u00a7 150B-51. In support of its contention, respondent argues that the petition for review by the superior court alleged only violations reviewable under G.S. \u00a7 150B-51(b)(5), which entitles a petitioner to judicial review to determine whether the decision was \u201cunsupported by substantial evidence.\u201d N.C. Gen. Stat. \u00a7 150B-51(b)(5) (1991).\nG.S. \u00a7 150B-51(a), under which petitioner contends he is entitled to this review, allows the court to determine whether the \u201cagency\u2019s decision states the specific reasons why the agency did not adopt the recommended decision.\u201d G.S. \u00a7 150B-51(a) (1991). The superior court determined that the SPC\u2019s decision satisfied this requirement. Petitioner argues, however, that G.S. \u00a7 150B-51(a) also entitles him to review of whether those stated reasons were correct. We disagree, believing that the review urged by petitioner is not contemplated by that portion of G.S. \u00a7 150B-51. See Webb v. N.C. Dept. of Envir., Health, and Nat. Resources, 102 N.C. App. 767, 404 S.E.2d 29 (1991). We note also that petitioner cites Webb for the proposition that a reviewing court must not only gauge whether a reason is specifically stated, but also whether it is correct. Petitioner interprets both Webb and G.S. \u00a7 150B-51(a) incorrectly. Furthermore, we reject petitioner\u2019s contention, made in his reply brief, that he intended the review suggested in his original brief to fall under G.S. \u00a7 150B-51(b)(4). At no time did petitioner cite that provision in his original brief, nor did he cite it in his petition for judicial review presented to the superior court. We will not entertain what amounts to a new argument presented in this reply brief. See Animal Protection Society v. State of North Carolina, 95 N.C. App. 258, 382 S.E.2d 801 (1989) (stating that the original brief sets the issues to be decided on appeal and that a new matter, raised for the first time in a reply brief, will not be considered).\nIn his next argument, petitioner contends the SPC acted arbitrarily in disregarding the ALJ\u2019s credibility determinations. More specifically, petitioner questions the SPC\u2019s failure to adopt the ALJ finding of fact forty-three which states:\nBased upon the inconsistencies in his recollection and upon his demeanor while testifying, the undersigned finds that Bell was not a credible witness and his testimony that he saw the Petitioner eating a sandwich which was made from supplies taken from the Central Prison kitchen was not believable.\nIn its stead, the SPC added findings of its own pertaining to Officer Bell. These findings state only that Officer Bell saw petitioner and three inmates eating in the sergeant\u2019s office, that petitioner offered him food in styrofoam trays, and that his experience told him that the food had come from Central Prison\u2019s kitchen.\nCredibility determinations \u201cand 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 Jarrett v. N.C. Dept. of Cultural Resources, 101 N.C. App. 475, 482, 400 S.E.2d 66, 70 (1991) (upholding the SPC\u2019s decision to decline to adopt the ALJ\u2019s credibility findings). Moreover, even though the ALJ has made a recommended decision, credibility determinations, as well as conflicts in the evidence, are for the agency to determine. Webb, 102 N.C. App. 767, 404 S.E.2d 29; see also Davis v. N.C. Dept. of Human Resources, 110 N.C. App. 730, 432 S.E.2d 132 (1993) (stating that the prerogative to determine the credibility of witnesses and to weigh the evidence rests with the SPC). We decline to restrict the SPC in the manner suggested by petitioner, which could foreclose meaningful review in certain situations. We believe also that the SPC\u2019s findings concerning Officer Bell have considerable support in the record.\nIn his last argument, petitioner contends that the SPC\u2019s decision is not supported by substantial evidence. Petitioner argues specifically that four of the SPC\u2019s conclusions are not supported by substantial evidence. Consequently, he contends the SPC\u2019s decision cannot stand and that the ALJ\u2019s recommended decision should become the final agency decision.\nOn review, the superior court applies the whole record test, examining all competent evidence to determine whether the SPC\u2019s findings and conclusions are supported by substantial evidence. Henderson v. N.C. Dept. of Human Resources, 91 N.C. App. 527, 372 S.E.2d 887 (1988). Substantial evidence is \u201crelevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Lackey v. N.C. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982). If the evidence reveals two conflicting views or contradictory evidence, the superior court may not replace its judgment for that of the SPC. Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 528 (1977). Essentially, the whole record test is used to determine whether the SPC decision has a rational basis in the evidence as a whole. Henderson, 91 N.C. App. 527, 372 S.E.2d 887.\nOn appeal to this Court, our review is limited to a determination of whether the superior court made any errors of law and asks \u201cwhether the superior court was correct as a matter of law in holding that the ... decision and order was supported by substantial evidence in light of the whole record.\u201d Floyd v. N.C. Dept. of Commerce, 99 N.C. App. 125, 128, 392 S.E.2d 660, 662, disc. review denied, 327 N.C. 482, 397 S.E.2d 217 (1990). We will address each conclusion individually.\nSPC conclusion three states that:\nFurther, the rules of the Office of State Personnel also provide that personal conduct discipline is intended to be imposed for those actions for which no reasonable person could, or should, expect to receive prior warnings. No reasonable State employee could or should expect to be warned that stealing food from the State is wrong. However, even if Petitioner should have been informed that such conduct was wrong, he was so warned by the memorandum of May 7, 1990, and defied that directive when he continued to take food from the kitchen without paying for it after the memorandum was issued.\nPetitioner agrees he was not entitled to a warning, but contends that respondent\u2019s conduct does not support this conclusion. We can only assume that petitioner is arguing that since the 7 May 1990 memorandum provided a form of warning his termination was somehow improper. We disagree entirely. In fact, this conclusion appears to be only a confirmation of the allegations of insubordination, brought about by petitioner\u2019s continued consumption following the 7 May 1990 memorandum.\nSPC conclusion four states that:\nThe rules of the Department of Correction also require its employees to \u201cbe persons of sound moral character. In dealing with inmates and the public, they must firmly establish authority, yet show themselves worthy of trust by maintaining unimpeachable conduct on and off duty.\u201d 5 N.C.A.C. 2A. 0201.\nPetitioner contends that respondent never specified this rule as a basis for dismissal, foreclosing its use by the SPC as a conclusion in support of upholding dismissal. Assuming, without deciding, that petitioner is correct, its inclusion is harmless. The record contains substantial evidence of other, properly included, grounds for dismissal.\nSPC conclusion five states that:\nDOC rules also provide that \u201cNo employee will consume or use equipment, facilities, or supplies, including scrap material, except as he may be legally entitled to do. . . . Food, cleansers, and other supplies will be used according to recipes and instructions.\u201d 5 N.C.A.C. 2A .0202(e)(2).\nPetitioner states, without argument, that the SPC adopted ALJ findings that prior to 7 May 1990 he had not been told that taking food violated this policy and that he did not believe food was a supply. Though it is difficult to discern the nature of petitioner\u2019s contention, it appears he is arguing that since he presented evidence that he did not understand the nature of this rule, it cannot be used as a basis for termination.\nSPC conclusion six, which should be read in conjunction with conclusion five, states that:\nPetitioner\u2019s actions of stealing food from the state both before and after the May 7, 1990, memorandum were insubordinate and unbecoming a State employee and his actions were unlawful and in violation of Division policy. As a result of Petitioner\u2019s actions, he was no longer able to function effectively as a supervisor of inmates and/or subordinate staff. The Respondent produced sufficient factual evidence to show that the Petitioner engaged in unacceptable conduct as described in the dismissal letter. Respondent has established just cause for Petitioner\u2019s dismissal.\nWe disagree with petitioner\u2019s assertions that conclusions five and six are not supported by substantial evidence. Furthermore, we note that the presence of conflicting evidence is not fatal to a finding or conclusion so long as the finding or conclusion is supported by substantial evidence. In this case, substantial evidence supported the SPC\u2019s conclusions. Moreover, the majority of contradictory or conflicting evidence cited by petitioner came from petitioner himself. We note, too, that petitioner admitted reading 5 N.C.A.C. 2A .0202 while studying for the sergeant\u2019s exam, and that he knew his job benefits did not include free food. He excuses his conduct by claiming that no one ever said it was wrong.\nThe record also shows that (1) officers were either told or knew from \u201cday one\u201d that it was wrong to eat food from the kitchen, (2) other units in the prison did not eat food from the kitchen, (3) petitioner admitted during his predismissal conference, in the presence of the warden, the deputy warden, and the administrator, that he ate food from the kitchen both before and after the 7 May 1990 memorandum, (4) on occasion, petitioner used subordinate staff as well as inmates to procure the food, and (5) petitioner rarely brought food from home. Furthermore, the warden stated that officers must lead by example when dealing with convicts and that once you lose integrity and credibility you lose control, supporting the SPC\u2019s conclusion that petitioner could no longer function effectively as a supervisor of staff and inmates.\nWe have carefully reviewed appellant\u2019s remaining contentions under this argument and find them to be unpersuasive. The decision of the superior court affirming the final decision of the SPC is\nAffirmed.\nJudges COZORT and LEWIS concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Eastern Carolina Legal Services, by John R. Keller, for petitioner appellant.", "Attorney General Michael F. Easley, by Assistant Attorneys General Valerie L. Bateman and Deborah L. McSwain, for respondent appellee." ], "corrections": "", "head_matter": "LARRY D. OATES, Appellant v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Appellee\nNo. 938SC645\n(Filed 3 May 1994)\n1. Administrative Law and Procedure \u00a7 65 (NCI4th)\u2014 administrative law judge\u2019s decision not adopted \u2014reasons stated by agency \u2014 correctness of reasons not reviewed on appeal\nReview of an agency decision under N.C.G.S. \u00a7 150B-51(a) allows the court to determine whether the \u201cagency\u2019s decision states the specific reasons why the agency did not adopt the [administrative law judge\u2019s] recommended decision,\u201d but that statute does not entitle petitioner to review of whether those stated reasons were correct.\nAm Jur 2d, Administrative Law \u00a7 730.\n2. Public Officers and Employees \u00a7 63 (NCI4th)\u2014 credibility determinations by administrative law judge \u2014disregard by State Personnel Commission \u2014no error\nThere was no merit to petitioner\u2019s contention that the State Personnel Commission acted arbitrarily in disregarding the administrative law judge\u2019s credibility determinations, since credibility determinations as well as conflicts in the evidence are for the agency to determine, and the Commission\u2019s findings in this case with regard to credibility of the witness had considerable support in the record.\nAm Jur 2d, Administrative Law \u00a7\u00a7 678 et seq.\n3. Public Officers and Employees \u00a7 67 (NCI4th)\u2014 correctional officer stealing food from prison kitchen \u2014conclusions of State Personnel Commission \u2014supporting evidence\nEvidence was sufficient to support the conclusions of the State Personnel Commission that petitioner, a correctional sergeant at Central Prison, should have known without having to be warned that stealing food from the kitchen was wrong; even if a warning was required, petitioner received such warning by memorandum, but continued to take food; rules of the Department of Correction required employees to be persons of sound moral character; Department of Correction rules provided that no employee would use supplies except as he was legally entitled to do so; and petitioner\u2019s actions in stealing food were insubordinate and unbecoming a State employee.\nAm Jur 2d, Civil Service \u00a7 63.\nAppeal by petitioner from order entered 28 April 1993 by Judge George R. Greene in Wayne County Superior Court. Heard in the Court of Appeals 10 March 1994.\nThis case concerns petitioner\u2019s dismissal from employment at Central Prison. Petitioner worked at Central Prison, a maximum security prison, from July 1985 to August 1990. On 28 August 1990, the warden dismissed petitioner for unacceptable personal conduct, namely, misuse of state supplies and insubordination. At the time of his dismissal, petitioner worked as a correctional sergeant and was responsible for several employees and over two hundred prisoners.\nPrison officials began an internal investigation in August 1990 after they received notice that staff in unit three, second shift, was consuming dining hall food without payment. The investigation led prison officials to conclude that petitioner had consumed food without payment, an act they considered stealing. In determining an appropriate disciplinary option, prison officials were cognizant of the fact that (1) petitioner engaged the services of subordinate staff and inmates to procure the food, (2) a sergeant, particularly in a facility like Central Prison, is responsible for enforcing policy and maintaining control and must possess integrity and credibility to effectively govern, and (3) petitioner continued this practice even after a 7 May 1990 memorandum directed that all violators cease the practice, amounting to insubordination.\nPetitioner appealed his dismissal and-a hearing was held before an administrative law judge (ALJ). The ALJ concluded that the Department of Correction (DOC) failed to show that petitioner (1) could no longer effectively supervise, (2) was justifiably dismissed, (3) violated policy after 7 May 1990, and (4) was fired for just cause. Accordingly, the ALJ recommended reinstatement.\nOn further review, the State Personnel Commission (SPC) declined to adopt several of the ALJ\u2019s findings of fact and conclusions of law, as well as the ALJ\u2019s recommended decision. The SPC ordered that DOC\u2019s decision to dismiss petitioner be upheld for just cause. On petition for review, the superior court affirmed the SPC\u2019s decision. From the order affirming the SPC\u2019s decision, petitioner appeals.\nEastern Carolina Legal Services, by John R. Keller, for petitioner appellant.\nAttorney General Michael F. Easley, by Assistant Attorneys General Valerie L. Bateman and Deborah L. McSwain, for respondent appellee." }, "file_name": "0597-01", "first_page_order": 625, "last_page_order": 632 }