{ "id": 8525891, "name": "BENJAMIN WHITE v. N.C. DEPARTMENT OF CORRECTION", "name_abbreviation": "White v. N.C. Department of Correction", "decision_date": "1995-01-03", "docket_number": "No. 9312SC862", "first_page": "521", "last_page": "529", "citations": [ { "type": "official", "cite": "117 N.C. App. 521" } ], "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": "80 ALR Fed. 830", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "82 ALR4th 26", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "76 ALR4th 310", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "268 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "300 N.C. 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564447 ], "year": 1980, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0687-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 126-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "231 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "292 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567415 ], "year": 1977, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0070-01" ] }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "544", "parenthetical": "quoting Commissioner of Insurance v. Rating Bureau, 292 N.C. 70, 79, 231 S.E.2d 882, 888 (1977)" }, { "page": "541" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "pin_cites": [ { "page": "414", "parenthetical": "quoting Commissioner of Insurance v. Rating Bureau, 292 N.C. 70, 79, 231 S.E.2d 882, 888 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "372 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "889-90" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526141 ], "year": 1988, "pin_cites": [ { "page": "530-31" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0527-01" ] }, { "cite": "427 S.E.2d 627", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "691-92" } ], "opinion_index": 0 }, { "cite": "333 N.C. 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547848, 2548041, 2548241, 2548471 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0466-02", "/nc/333/0466-01", "/nc/333/0466-04", "/nc/333/0466-03" ] }, { "cite": "424 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "686" }, { "page": "686" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525390 ], "year": 1993, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0689-01" ] }, { "cite": "372 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "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 ], "year": 1988, "pin_cites": [ { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0459-01" ] }, { "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" } ], "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": 774, "char_count": 18314, "ocr_confidence": 0.736, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.3397981890063861 }, "sha256": "ffd9ec3e853c7905fdfcb79c6448cb6b89fc2f2ed141d77f1f961c3096207748", "simhash": "1:c7abee0b17ad7f96", "word_count": 2896 }, "last_updated": "2023-07-14T20:31:41.091249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge GREENE concur." ], "parties": [ "BENJAMIN WHITE v. N.C. DEPARTMENT OF CORRECTION" ], "opinions": [ { "text": "McCRODDEN, Judge.\nRelying upon fifteen assignments of error, petitioner argues the trial court erred in (I) determining that the Commission\u2019s decision was not made upon unlawful procedure, (II) finding that the Commission\u2019s decision was supported by substantial competent evidence, and (III) determining that the Commission\u2019s order was not affected by error of law.\nThe facts are as follows. In June 1990, petitioner was employed by respondent as a correctional officer at Hoke Correctional Institution in McCain, North Carolina. For security reasons, that facility required all correctional officers to rotate among all of the custody positions.\nOn 22 June 1990, petitioner alleged that he pulled his back while trying to lift a trap door in one of the facility\u2019s guard towers, tower number 3. He requested that he not be assigned to work in that tower until the door was repaired. He subsequently requested not to be assigned to another tower which had a particularly long spiral staircase. On 29 June 1990, petitioner filed a written grievance after he was again assigned to work in tower number 3. In response to this, the Assistant Superintendent Wilford Shields met with petitioner on 3 July 1990. Shields informed petitioner that for the time being he would not be assigned to work in tower number 3, but that he would be required to undergo an examination by a medical specialist to determine whether he could continue to perform his duties as a correctional officer.\nPetitioner continued to work, and on 24 July 1990, he was instructed that he should not report to work until the evaluation of his back had been performed. Petitioner then began to use his accumulated vacation and sick leave. On 7 August 1990, petitioner filed a claim with the N.C. Industrial Commission for workers\u2019 compensation benefits for the injury to his back allegedly sustained on 22 June 1990. However, respondent refused to accept liability for petitioner\u2019s claim because petitioner had failed to notify respondent of his injury immediately or within 30 days of the injury.\nOn 17 August 1990, Dr. J.N. Ellis, who had examined petitioner, wrote to respondent to report on petitioner\u2019s physical status, stating:\nIn my opinion, based on his past injury and his current problems with degenerative joint disease in the spine, I do not think that he could perform all the duties listed in the job description of a Correctional Officer and [in the] Criminal Justice physical requirements, especially in regard to lifting, carrying and dragging heavy objects, and pursuing foot-fleeing subjects.... I would agree that he should be restricted from lifting greater than 25 pounds and should not do strenuous physical activity.\nBy 22 August 1990, petitioner had exhausted all of his vacation and sick leave, and respondent placed him on unpaid leave status. Dr. Ellis examined petitioner again and wrote a second letter to respondent stating that petitioner was not totally disabled and that he was \u201ccapable of maintaining a job that is not as strenuous as described in his job description.\u201d\nIn reviewing a trial court\u2019s consideration of an agency\u2019s final decision, our task is to determine whether the trial court properly applied the standard of review mandated by N.C. Gen. Stat. \u00a7 150B-51 (1991). Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 353 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). That statute provides that a reviewing court may reverse or modify an agency\u2019s decision if:\n[T]he substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law; [or]\n(5) Unsupported by substantial evidence ... in view of the entire record as submitted.\nN.C.G.S. \u00a7 150B-51.\nThe standard of review the trial court applies depends upon the issues presented on appeal. Brooks, Com\u2019r of Labor v. Rebarco, Inc., 91 N.C. App. 459, 463, 372 S.E.2d 342, 344 (1988). When an appellant alleges that the agency made an error of law, the trial court must review the matter de novo-, however, when the issue is the sufficiency of the evidence to support the agency\u2019s order, it applies the whole record test. Id. The standard of review for administrative decisions is the same in the Court of Appeals as in superior court. Teague v. Western Carolina University, 108 N.C. App. 689, 691, 424 S.E.2d 684, 686, disc. review denied, 333 N.C. 466, 427 S.E.2d 627 (1993). We do not defer to the superior court\u2019s decision. Id., at 691-92, 424 S.E.2d at 686.\nI.\nPetitioner\u2019s first argument, that the Commission\u2019s decision was made upon unlawful procedure, implicates the de novo standard of review, and therefore allows us to substitute freely our judgment for that of the Commission. Nonetheless, we find that the Commission\u2019s decision was not grounded upon unlawful procedure.\nPetitioner argues that the Commission rendered its decision outside the time allowed. An agency such as the Commission has 90 days from the day it receives the official record in a contested case from the Office of Administrative Hearings, or 90 days after its next regularly scheduled meeting, whichever is longer, to make a final decision in a case. N.C. Gen. Stat. \u00a7 150B-44 (1991). In this case, the Commission received the official record on 5 December 1991 and rendered its decision on 30 April 1991, more than 90 days after it received the record. However, the Commission\u2019s next regularly scheduled meeting after 5 December 1991 was 4 February. Petitioner concedes that the decision was rendered within 90 days of the 4 February meeting. Based on this admission, we conclude that the Commission timely made its decision and the trial court properly refused to find that the decision was made on unlawful procedure.\nII.\nPetitioner next argues that certain of the Commission\u2019s findings were not supported by substantial evidence. We disagree.\nIn addressing this issue, we use the whole record test, which means that we must examine all the competent evidence, including that which contradicts the Commission\u2019s findings, to determine if the Commission\u2019s findings were supported by substantial evidence. Henderson v. N.C. Dept. of Human Resources, 91 N.C. App. 527, 530-31, 372 S.E.2d 887, 889-90 (1988). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Thompson v. Board of Education, 292 N.C. 406, 414, 233 S.E.2d 538, 544 (1977) (quoting Commissioner of Insurance v. Rating Bureau, 292 N.C. 70, 79, 231 S.E.2d 882, 888 (1977)). In applying the whole record test to this case, we are not allowed to replace the Commission\u2019s judgment as between two reasonably conflicting views of the evidence. Id. at 410, 233 S.E.2d at 541.\nPetitioner argues that the Commission erred in finding that he was not able to perform all his duties both because he was able to work after his injury and because Dr. Ellis stated that he was not totally disabled and could perform some of the duties of a correctional officer. However, we find that the Commission\u2019s finding was well supported. In light of the fact that correctional officers at Hoke were required to rotate through all positions, Dr. Ellis\u2019 conclusion that petitioner could not perform all of the duties listed in the job description for a correctional officer, is certainly substantial evidence supporting the Commission\u2019s finding.\nWe find petitioner\u2019s further assertion, that the Commission erred in finding that his handicap renders him not fit by definition to be a correctional officer, similarly meritless. Dr. Ellis\u2019 opinion that respondent could not perform all of the duties of a correctional officer as listed in the job description adequately supports the Commission\u2019s finding.\nIII.\nIn his next three arguments, petitioner alleges errors of law, again requiring us to review the issues de novo. Petitioner argues that the Commission misapplied the law in determining that the respondent did not owe petitioner a duty to make reasonable accommodations for petitioner\u2019s condition. We disagree.\nWhen a \u201cqualified handicapped person\u201d requests that an accommodation be made for his handicapping condition, his employer must investigate whether there are reasonable accommodations that can be made and must make reasonable accommodations for the person\u2019s condition. N.C. Gen. Stat. \u00a7 168A-4 (1987). Assuming without deciding that petitioner is a \u201chandicapped person,\u201d as that term is defined in N.C. Gen. Stat. \u00a7 168A-3(4) (1987), we conclude that petitioner is not a \u201cqualified handicapped person.\u201d That term means:\nWith regard to employment, a handicapped person who can satisfactorily perform the duties of the job in question, with or without reasonable accommodation, (i) provided that the handicapped person shall not be held to standards of performance different from other employees similarly employed, and (ii) further provided that the handicapping condition does not create an unreasonable risk to the safety or health of the handicapped person, other employees, the employer\u2019s customers, or the public.\nN.C.G.S. 168A-3(9)(a). The evidence demonstrates that the petitioner could not perform the duties of the job of correctional officer as defined in the job description. Furthermore, given the fact that the job of correctional officer entails the supervision of inmates, we believe that petitioner\u2019s condition, which renders him unable to pursue foot-fleeing inmates or physically subdue them effectively, could create an unreasonable risk to himself, his fellow correctional officers, other inmates and the public at large. As petitioner was not a \u201cqualified handicapped person,\u201d we conclude that respondent was under no duty to make accommodations for petitioner\u2019s physical condition.\nNext, petitioner argues that the Commission misinterpreted the workers\u2019 compensation law in making its decision. The Commission found that \u201c [petitioner did not file a worker\u2019s compensation claim about his alleged injury until August 7, 1990, even though departmental policy, about which he knew, required him to notify the agency immediately or, at the latest, within 30 days of his work-related injury.\u201d\nPetitioner does not contend that he actually filed a claim within 30 days of his injury or that he did not know of the respondent\u2019s policy concerning workers\u2019 compensation claims. Rather, he claims that \u201c[t]his finding adds nothing to the decision except to give the department an excuse as to why it didn\u2019t give [petitioner] an accommodation.\u201d We agree that this finding added nothing to the Commissions order but, having determined that respondent did not owe petitioner the duty to make accommodation for his condition, find that its inclusion was harmless. We reject these assignments of error.\nFinally, petitioner argues that the Commission erred in failing to conclude, as the AU had determined, that by placing petitioner on unpaid leave, respondent actually suspended him without cause.\nThe Commission accepted the AU\u2019s finding that petitioner was a permanent State employee subject to the State Personnel Act, N.C. Gen. Stat. \u00a7\u00a7 126-1 to -88 (1993). However, the Commission refused to adopt each of the AU\u2019s conclusions of law. In his first conclusion, the AU stated:\nThe petitioner was a permanent State employee subject to the State Personnel Act. Involuntary placement on permanent leave without pay status for alleged inability to perform the duties of the job is the equivalent of being discharged, suspended and involuntarily separated for disciplinary reasons under GS 126-35. The respondent is required to establish just cause. The respondent failed to establish the required substantive just cause. Furthermore, the respondent failed to afford the petitioner the benefits of progressive warnings required by GS 126-35. It is arbitrary and capricious to deny the petitioner the opportunity to establish that he is able to perform the essential duties of a correctional officer despite his back injury.\nState agencies may not discharge or suspend a permanent State employee except for just cause. N.C.G.S. \u00a7 126-35. Before subjecting a State employee to such disciplinary action, the State shall furnish him with a written statement of the grounds for the action and of the employee\u2019s appeal rights. Id. This section requires that a State employee be given three warnings before he may be terminated. Jones v. Dept. of Human Resources, 300 N.C. 687, 691, 268 S.E.2d 500, 502 (1980). It is uncontested that petitioner received no such warning.\nThus, the question presented for our de novo review is: when respondent placed petitioner on leave without pay, was this the equivalent of suspension for disciplinary reasons within the meaning of N.C.G.S. \u00a7 126-35? We conclude that it was.\nRespondent asserts that leave without pay is not a sanction but a benefit offered to State employees. It is true that Subchapter IE of Title 25 of the North Carolina Administrative Code, which contains the regulation relating to leave without pay, is entitled \u201cEmployee Benefits.\u201d It is also true that a State agency is required to reinstate an employee who takes leave without pay at his previous position or at one of like seniority, status and pay. N.C. Admin. Code tit. 25, r. IE. 1104 (January 1994). However, the leave without pay described in Subchapter IE is voluntary leave, initiated by the employee. See N.C. Admin. Code tit. 25, r. IE. 1103 (\u201cThe employee shall apply in writing to his supervisor for leave without pay.\u201d).\nIn this case, petitioner made no application for leave without pay. Instead, respondent placed him involuntarily on sick leave until his accumulated time elapsed, then required him to expend his accumulated vacation, and finally placed him on leave without pay. This was, in essence, a suspension, which could not be made without just cause.\nNeither the Commission nor the trial court made any findings relative to the issue of whether respondent suspended petitioner without just cause. Having concluded that the respondent\u2019s placement of petitioner on permanent leave without pay amounted to a suspension under the State Personnel Act, we remand the case for a determination of whether such suspension was made for just cause.\nRemanded.\nChief Judge ARNOLD and Judge GREENE concur.\nOpinion written and concurred in prior to 16 December 1994.", "type": "majority", "author": "McCRODDEN, Judge." } ], "attorneys": [ "Reid, Lewis, Deese & Nance, by James R. Nance, Jr., for petitioner-appellant.", "Attorney General Michael F. Easley, by Assistant Attorney General Valerie L. Bateman, for respondent-appellee." ], "corrections": "", "head_matter": "BENJAMIN WHITE v. N.C. DEPARTMENT OF CORRECTION\nNo. 9312SC862\n(Filed 3 January 1995)\n1. Public Officers and Employees \u00a7 41 (NCI4th)\u2014 decision by State Personnel Commission \u2014 timeliness\nThough the State Personnel Commission did not make its decision in this case within 90 days after receiving the official record, it did make its decision within 90 days of its next regularly scheduled meeting; therefore, the decision was timely, and the trial court properly refused to find that the decision was made on unlawful procedure. N.C.G.S. \u00a7 150B-44.\nAm Jnr 2d, Civil Service \u00a7\u00a7 52 et seq.\n2. Public Officers and Employees \u00a7 67 (NCI4th)\u2014 inability of petitioner to perform job responsibilities \u2014 sufficiency of evidence to support findings\nThere was no merit to petitioner\u2019s argument that the State Personnel Commission erred in finding that he was not able to perform all his duties as a correctional officer where correctional officers were required to rotate through all positions, and the physician who examined petitioner concluded that he could not perform all the duties listed in the job description for a correctional officer.\nAm Jur 2d, Civil Service \u00a7\u00a7 52 et seq.\n3. Handicapped Persons \u00a7 25 (NCI4th)\u2014 inability to perform duties of correctional officer \u2014 risk to self and others\u2014 petitioner not qualified handicapped person \u2014 accommodations not required of respondent\nBecause petitioner could not perform the duties of the job of correctional officer as defined in the job description and petitioner\u2019s condition could create an unreasonable risk to himself, his fellow correctional officers, other inmates, and the public at large, petitioner was not a \u201cqualified handicapped person,\u201d and respondent was under no duty to make accommodations for petitioner\u2019s physical condition. N.C.G.S. \u00a7\u00a7 168A-3(4), 168A-3(9)(a).\nAm Jur 2d, Job Discrimination \u00a7\u00a7 111 et seq.\nAccommodation requirement under state legislation forbidding job discrimination on account of handicap. 76 ALR4th 310.\nWhat constitutes handicap under state legislation forbidding job discrimination on account of handicap. 82 ALR4th 26.\nWho is \u201cqualified\u201d handicapped person protected from employment discrimination under Rehabilitation Act of 1973 (29 USCS \u00a7\u00a7 701 et seq.) and regulations promulgated thereunder. 80 ALR Fed. 830.\n4. Public Officers and Employees \u00a7 67 (NCI4th)\u2014 State employee put on permanent leave without pay \u2014 suspension \u2014 just cause required\nRespondent\u2019s placement of petitioner on permanent leave without pay amounted to a suspension under the State Personnel Act, and the case is remanded for a determination of whether such suspension was made for just cause. N.C.G.S. \u00a7 126-35.\nAm Jur 2d, Civil Service \u00a7\u00a7 52 et seq.\nAppeal by petitioner from order entered 16 April 1993 by Judge Wiley F. Bowen in Cumberland County Superior Court. Heard in the Court of Appeals 21 April 1994.\nPetitioner, a former employee of respondent N.C. Department of Correction, filed a grievance with respondent alleging that he had been placed on leave without pay discriminatorily because he had a handicapping condition and because he had earlier filed a grievance concerning his work place. Following a contested case hearing, Administrative Law Judge Robert Reilly, Jr. made a recommended decision that petitioner be reinstated. The full State Personnel Commission (the Commission), however, rejected the ALJ\u2019s recommended decision and affirmed respondent\u2019s decision to place petitioner on leave without pay. Petitioner appealed this decision to the superior court. Following a hearing on the matter, Judge Bowen entered an order on 16 April 1993, affirming the Commission\u2019s order. From this order, petitioner appeals.\nReid, Lewis, Deese & Nance, by James R. Nance, Jr., for petitioner-appellant.\nAttorney General Michael F. Easley, by Assistant Attorney General Valerie L. Bateman, for respondent-appellee." }, "file_name": "0521-01", "first_page_order": 553, "last_page_order": 561 }