{ "id": 11916594, "name": "RICHARD L. GAINEY v. NORTH CAROLINA DEPARTMENT OF JUSTICE", "name_abbreviation": "Gainey v. North Carolina Department of Justice", "decision_date": "1996-01-02", "docket_number": "No. 95-312", "first_page": "253", "last_page": "263", "citations": [ { "type": "official", "cite": "121 N.C. App. 253" } ], "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": "9 ALR4th 20", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "268 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "189" }, { "page": "189" } ], "opinion_index": 0 }, { "cite": "300 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564644 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "713" }, { "page": "713" }, { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0708-01" ] }, { "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": "882 F.2d 908", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1821050 ], "year": 1989, "pin_cites": [ { "page": "912" } ], "opinion_index": 0, "case_paths": [ "/f2d/882/0908-01" ] }, { "cite": "394 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "290" } ], "opinion_index": 0 }, { "cite": "99 N.C. 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App.", "case_ids": [ 12127274 ], "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0303-01" ] }, { "cite": "349 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "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, "pin_cites": [ { "page": "922-23" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. 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App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358977 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "639", "parenthetical": "review is limited to errors preserved through entire process" }, { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0637-01" ] }, { "cite": "463 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "582" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 827", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918394 ], "year": 1995, "pin_cites": [ { "page": "830" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0827-01" ] }, { "cite": "463 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "256" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. 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GAINEY v. NORTH CAROLINA DEPARTMENT OF JUSTICE" ], "opinions": [ { "text": "GREENE, Jupdge.\nRichard L. Gainey (plaintiff) appeals from a judgment of the trial court filed 27 October 1994, affirming the final decision of the State Personnel Commission (SPC), which determined that plaintiffs discharge by the North Carolina Department of Justice (Justice) was procedurally correct and for just cause.Plaintiff was dismissed from his position as a special agent for the State Bureau of Investigation (SBI) after a pre-dismissal conference, which followed a series of warnings, because plaintiff repeatedly failed to meet reporting deadlines. Pursuant to N.C. Gen. Stat. \u00a7 150B-23, on 19 April 1991, plaintiff filed a petition with the Office of Administrative Hearings for a contested case hearing, alleging that his dismissal was procedurally incorrect, because the warnings preceding his dismissal were too old, and substantively incorrect, because Justice did not consider plaintiffs improvement in filing his paperwork. In his petition and in appeals from the SPC, plaintiff has sought reinstatement with back pay and benefits.\nAfter review by an administrative law judge, pursuant to N.C. Gen. Stat. \u00a7 150B-32, on 9 February 1993, the SPC found as fact that plaintiff had worked for Justice from 17 November 1980 until 31 January 1991. In 1985, Robert Morgan (Morgan), the new director of the SBI, instituted standardized operating procedures which required that all reports \u201cbe dictated within five days of the activity[,] unless an extension\u201d was approved by the agent\u2019s supervisor. The reporting deadline was instituted because Morgan \u201cwas concerned about the timeliness and quality of SBI reports.\u201d Morgan\u2019s concern resulted from complaints by district attorneys that they were unable to \u201ctry . . . cases because the [SBI] reports were not\u201d in their case files and the credibility concerns that result from reports made months after investigative interviews. Plaintiff\u2019s files were reviewed periodically until his dismissal and he received a series of warnings from July 1986 through December 1988, when plaintiff received a final written warning. The warnings were issued because plaintiff did not comply with SBI reporting deadlines. During these same years plaintiff received satisfactory ratings on his performance evaluations, but in each evaluation it was noted that plaintiff failed to comply with reporting deadlines.\nOn 11 September 1989, it was noted that plaintiff had improved in his reporting, but \u201cwas still disorganized and failed to follow up on cases.\u201d After this noted improvement, plaintiff requested that his supervisor expunge the final warning from his personnel file. Although plaintiff\u2019s supervisor responded that plaintiff \u201chad made improvement and had \u2018turned the corner,\u2019 \u201d his supervisor stated that it would take a six-month period of continuous improvement for his supervisor to bring plaintiff\u2019s request to Morgan\u2019s attention. Although, again plaintiff \u201creceived an overall rating of good on his performance evaluation for the period\u201d of 1 January 1990 through 30 June 1990, it was noted that plaintiff \u201cstill needed improvement in the timeliness and correctness of administrative reports.\u201d\nUpon review by the assistant director of the SBI of investigative files in plaintiff\u2019s area, the assistant director recommended to Morgan that both plaintiff and Special Agent Walter House (House) be dismissed. The assistant director stated that House failed to comply with the five-day reporting deadline in most of his files and that although plaintiff had improved, \u201cthe level of improvement was not near to satisfactory performance.\u201d After this review, plaintiff met with Morgan on 19 November 1990. Following this meeting, plaintiff \u201cpaid special attention to finding and correcting the reporting deficiencies and \u2018need-to-do\u2019s\u2019 in all of his files.\u201d Plaintiff also arranged for his supervisor to do a special case file review, which revealed that everything in plaintiffs file was in order on 30 November 1990. On 16 January 1991, plaintiff and House had a pre-dismissal conference with Morgan, during which both were given the option of resigning and reapplying. It is undisputed that the day after this conference, plaintiff submitted a letter suggesting a method for improving his reporting. When plaintiff refused to resign, he was discharged, by letter on 30 January 1991. House, however, chose to resign and was rehired in July 1991. Plaintiff\u2019s review for the period 1 July 1990 through 21 January 1991 noted that he had improved in the area of meeting deadlines, but \u201cthat not all reports were completed within the designated reporting period.\u201d The SPC finally found that plaintiffs \u201cjob performance was deficient in terms of his often failing to comply with the SBI\u2019s requirement that investigative activity be dictated within five (5) working days of the activity.\u201d The SPC further found the plaintiff \u201cwas able to meet the [reporting deadline] when he made an effort to do\u201d so but that no effort was made until after November 1990, some two months prior to his dismissal. The SPC also found that the reporting deadline was reasonable and that neither the SBI nor any investigation or prosecution was adversely affected by plaintiffs failure to comply with the reporting deadline.\nThe SPC then made the following relevant conclusions of law:\n9. The [plaintiffs] persistent failure to comply with SBI\u2019s reporting deadlines constituted just cause for dismissal on the basis of inadequate job performance.\n12. If the [plaintiffs] situation had been one where there had been only occasional lapses that had resulted in disciplinary action, then utilizing the [agency\u2019s policy that \u201cserious consideration should be given to starting the disciplinary process over again with an oral warning\u201d where warnings are more than 24 months old] would be appropriate. The [plaintiff\u2019s] violation of the reporting deadlines was, however, [an] ongoing problem. This [is] not the type of situation where the violations were so unrelated that the age of the violations would indicate that it was [appropriate] to start the disciplinary process anew.\n14. The [plaintiff\u2019s] discharge was procedurally correct.\nPursuant to N.C. Gen. Stat. \u00a7 150B-43, plaintiff filed a petition for judicial review of the SPC\u2019s decision, and on 27 October 1994, the trial court affirmed the decision of the SPC.\nThe issues are whether (I) the SPC\u2019s conclusion of law that plaintiff was dismissed for just cause is supported by the findings of fact; (II) the conclusion that plaintiff\u2019s dismissal was procedurally correct is supported by the findings of fact; (III) the SPC\u2019s finding that the reporting deadline requirements were reasonable is supported by the evidence; (IV) plaintiff\u2019s pre-dismissal conference lacked procedural due process; (V) plaintiff\u2019s dismissal deprived him of equal protection of the law; and (VI) plaintiff\u2019s prior warnings, which occurred two years prior to his dismissal, can provide a procedural basis for his dismissal.\nStandard of Review\nA final agency decision may be reversed or modified, by either a superior court or this Court (both of which sit as appellate courts under the Administrative Procedure Act), see Coastal Ready-Mix Concrete Co. v. Board of Comm\u2019rs, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980), if \u201cthe agency\u2019s findings, inferences, conclusions or decisions are:\u201d\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 ... in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nN.C.G.S. \u00a7 150B-51(b) (1991). In determining whether to reverse or modify a decision, an appellate court reviews the agency\u2019s decision either de novo or pursuant to the whole record test, depending upon the error that is alleged and limited by the exceptions and assignments of error as set forth during the pendency of the action. Brooks v. Ansco & Assocs., 114 N.C. App. 711, 716, 443 S.E.2d 89, 92 (1994); In re Ramseur, 120 N.C. App. 521, 524, 463 S.E.2d 254, 256 (1995); Dockery v. North Carolina Dept. of Human Resources, 120 N.C. App. 827, 830, 463 S.E.2d 580, 582 (1995); see Watson v. North Carolina Real Estate Comm\u2019n, 87 N.C. App. 637, 639, 362 S.E.2d 294, 296 (1987) (review is limited to errors preserved through entire process), cert. denied, 321 N.C. 746, 365 S.E.2d 296 (1988). \u201cWhere it is alleged [that] the agency\u2019s [findings, inferences, conclusions or] decision [are] not supported by substantial evidence or are arbitrary and capricious,\u201d then the agency\u2019s decision is reviewed pursuant to the whole record test. Ansco & Assocs., 114 N.C. App. at 716, 443 S.E.2d at 92. This test requires that the reviewing court \u201cexamine all competent evidence in the record, including that which detracts from the agency\u2019s decision ... to determine if the agency\u2019s decision was supported by substantial evidence.\u201d Id. \u201c \u2018Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d Watson, 87 N.C. App. at 639, 362 S.E.2d at 296 (quoting Lackey v. North Carolina Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982)). All other errors raised pursuant to section 150B-51(b) require de novo review. See Ansco & Assocs., 114 N.C. App. at 716, 443 S.E.2d at 92.\nI\nA career State employee may be dismissed only for \u201cjust cause.\u201d N.C.G.S. \u00a7 126-35 (1993); Walker v. North Carolina Dept. of Human Resources, 100 N.C. App. 498, 504, 397 S.E.2d 350, 355 (1990), disc. rev. denied, 328 N.C. 98, 402 S.E.2d 430 (1991). Just cause may be supported by either unsatisfactory job performance or personal misconduct which is detrimental to State service. Amanini v. North Carolina Dept. of Human Resources, 114 N.C. App. 668, 679, 443 S.E.2d 114, 120 (1994). Unsatisfactory job performance is defined as \u201c[w]ork-related performance that fails to satisfactorily meet job requirements as specified in the relevant job description, work plan, or as directed by the management of the work unit or agency.\u201d N.C. Admin. Code tit. 25, r. 1J.0614Q) (Sept. 1995); Amanini, 114 N.C. App. at 678, 443 S.E.2d at 120 (administrative rules, promulgated pursuant to statutory authority, have effect of law). A conclusion that an employee has been dismissed for just cause based upon failure to satisfy \u201cjob requirements\u201d must be supported by findings that the \u201cjob requirements were reasonable , and if so, that the employee made no reasonable effort to meet them\u201d during his employment. See Walker, 100 N.C. App. at 604, 397 S.E.2d at 355 (emphasis in original).\nThe SPC found that the five day reporting deadline was reasonable. It further found that the plaintiff \u201cwas able to meet the [requirement] when he made an effort to do\u201d so but that no effort was made until after November 1990, some two months prior to his dismissal. These findings support the SPC\u2019s conclusion that plaintiff was dismissed for just cause.\nII\nThe plaintiff also argues that the SPC\u2019s conclusion that his discharge was procedurally correct is unsupported by the findings of fact. The procedure for dismissing a State employee requires:\n\u2022 Recommendation of dismissal by a supervisor.\n\u2022 Scheduling of a pre-dismissal conference.\n\u2022 Advance written notice to the employee of the time and location of the pre-dismissal conference and reason for the dismissal recommendation.\n\u2022 Pre-dismissal conference where recommendation for dismissal is reviewed with employee, including specific reasons for dismissal, and employee is given an opportunity to put forth information and reasons not to dismiss him.\n\u2022 Management review after the conference and consideration of employee\u2019s responses. If dismissal decision is reached, a dismissal letter containing the reason for dismissal, effective date of dismissal and appeal rights must be written.\nSee N.C. Admin. Code tit. 25, r. 1J.0613(4) (Sept. 1995). The purposes of the procedural requirements are to \u201cprevent the employer from summarily discharging an employee and then searching for justifiable reasons for the dismissal\u201d and to allow the employee to \u201ceffectively appeal his discharge.\u201d Leiphart v. North Carolina School of the Arts, 80 N.C. App. 339, 351, 342 S.E.2d 914, 922-23, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986).\nThe SPC made specific findings that plaintiff\u2019s dismissal was recommended, a pre-dismissal conference was scheduled and held and plaintiff attended the conference. Although there are no specific findings that the specific reasons for the dismissal were reviewed with plaintiff during the conference or that he was given an opportunity to respond to the allegations, there is uncontradicted evidence of this in the record. See Dockside Discotheque v. Board of Adjustment of Southern Pines, 115 N.C. App. 303, 308, 444 S.E.2d 451, 454 (failure to make findings not fatal where uncontradicted record evidence would support requisite findings), disc. rev. denied, 338 N.C. 309, 451 S.E.2d 634 (1994). There are, however, no findings, nor is there evidence, that plaintiff received advance written notice of the pre-dismissal conference. This is not fatal in the present case, because it is clear that the purposes of the pre-dismissal conference were met, the plaintiff attended the conference, providing the clear inference that he had notice of the conference, and plaintiff has not argued, nor put forth any evidence, that any failure to receive advance written notice prejudiced him in any way. Accordingly, the conclusion that plaintiffs dismissal was procedurally correct is supported by the findings and the record.\nIll\nPlaintiff argues that the finding that the reporting deadline was reasonable is not supported by substantial evidence. We disagree. Reasonable is defined as what is \u201c[f]air, proper, just, moderate [or] suitable under the circumstances.\u201d Black\u2019s Law Dictionary 1265 (6th ed. 1990). The purpose of the rule and whether it serves its purpose are appropriate considerations in evaluating its reasonableness.\nIn this case the rule was promulgated for the purpose of providing timely written reports' to district attorneys, to aid in prosecution, and to enhance the credibility of the testimony of SBI agents. The requirement that the dictation occur within five days of the activity serves the stated purpose. The rule also provided that for legitimate reasons, the five day requirement could be extended. This evidence is such that a reasonable mind might accept as adequate to support a determination that the deadline was reasonable under the circumstances.\nIV\nPlaintiff argues that his pre-dismissal conference did not meet the requirements of procedural due process.\nIt is not disputed that plaintiff had a property interest in his employment by the State which is protected by due process. Bishop v. North Carolina Dept. of Human Resources, 100 N.C. App. 175, 177, 394 S.E.2d 702, 703 (1990). To comply with due process requirements in dismissing a state employee, the agency must provide \u201coral or written notice of the charges against [the employee], an explanation of the employer\u2019s evidence, and an opportunity[, which is meaningful in time and in manner,] to present his side of the story.\u201d Id.\nIn this case, there were findings, which are supported by substantial evidence, that plaintiff was given both oral and written notice of the charges against him and that he knew that the evidence consisted of reviews of his reports over a period of approximately four years. There is undisputed evidence in the record that plaintiff was given an opportunity to respond to the allegations during the 16 January meeting and that plaintiff submitted a memo on 17 January suggesting ways that plaintiff could improve his performance in the future. Plaintiff never disputed that prior to October 1990 he did not maintain his records in accord with SBI policy or meet the reporting deadline. Thus, plaintiffs 16 January meeting with Morgan met due process requirements.\nV\nPlaintiff argues that the action of Justice in allowing House to resign and then rehiring House and allowing plaintiff to be dismissed denied him equal protection under the law.\nEqual protection guards citizens from being treated differently under the same law from others who are similarly situated. United States v. Falk, 479 F.2d 616, 618-19 (7th Cir. 1973); Walters v. Blair, 120 N.C. App. 398, 400, 462 S.E.2d 232, 233-34 (1995). Disparate treatment, which occurs when an employer treats one employee less favorably than others, and disparate impact, which is a discriminatory result from some employment practice both violate equal protection. North Carolina Dept. of Correction v. Hodge, 99 N.C. App. 602, 611, 394 S.E.2d 285, 290 (1990); Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 912 (4th Cir. 1989). Plaintiff argues that he was treated differently from House, thus raising the question of disparate treatment. See Hodge, 99 N.C. App. at 611, 394 S.E.2d at 290.\nThe undisputed evidence and findings of the SPC, however, reveal that both plaintiff and House were disciplined for not maintaining their files pursuant to SBI policy. Both plaintiff and House had pre-dismissal conferences and were given the option of resigning or being dismissed. Nothing in the evidence suggests that plaintiff was singled out by Morgan for dismissal or treated any differently than House. Plaintiff and House made different choices among the same that were provided to both. Furthermore, even assuming that plaintiff\u2019s argument raises the question of whether the practice of allowing he and House to choose between options resulted in House\u2019s being rehired and plaintiff not being rehired, there is no evidence that plaintiff has applied for a new position with Justice. Accordingly, the plaintiff\u2019s equal protection rights were not violated.\nVI\nThe plaintiff argues that it was improper for Justice to base his dismissal on warnings which were more than two years old. We disagree.\nAlthough an employee is entitled to receive disciplinary warnings prior to dismissal for unsatisfactory job performance, Jones v. Department of Human Resources, 300 N.C. 687, 691, 268 S.E.2d 500, 502 (1980); N.C. Admin. Code tit. 25, r. lJ.0605(b) (Oct. 1990) (amended Oct. 1995), there is no requirement that the warnings occur within some period of time prior to the dismissal. North Carolina Office of State Personnel, State Personnel Manual, \u00a7 9 at 8.2 (Feb. 1985) (amended Oct. 1995). Thus the SPC did not err in affirming the dismissal based on warnings that occurred two years prior to the actual dismissal, especially when the earlier violations, as here, related to the very reasons for which the employee was dismissed.\nWe have reviewed plaintiff\u2019s other assignments of error and overrule them.\nAffirmed.\nJudges MARTIN, Mark D., and McGEE concur.\n. Although denominated as a conclusion of law, we treat this conclusion as a finding of fact because its determination does not involve the application of legal principles. Coble v. Coble, 300 N.C. 708, 713, 268 S.E.2d 185, 189 (1980).\n. \u201cJust cause\u201d is a legal basis, set forth by statute, for the termination of a State employee, and requires the application of legal principles. Thus, its determination is a question of law. Coble v. Coble, 300 N.C. 708, 713, 268 S.E.2d 185, 189 (1980).\n. The determination of \u201creasonableness\u201d and \u201creasonable efforts\u201d does not require the application of legal principles and is therefore a question of fact. Coble, 300 N.C. at 713, 268 S.E.2d at 189.", "type": "majority", "author": "GREENE, Jupdge." } ], "attorneys": [ "Young Moore and Henderson, P.A., by John A. Michaels, for petitioner-appellant.", "Attorney General Michael F. Easley, by Special Deputy Attorney General John H. Watters, for respondent-appellee State." ], "corrections": "", "head_matter": "RICHARD L. GAINEY v. NORTH CAROLINA DEPARTMENT OF JUSTICE\nNo. 95-312\n(Filed 2 January 1996)\n1. Public Officers and Employees \u00a7 67 (NCI4th)\u2014 SBI agent\u2014 dismissal \u2014 just cause\nThere was just cause for the dismissal of an SBI agent where the agent was dismissed for not meeting reporting deadlines and the State Personnel Commission found that plaintiff was able to meet the requirement when he made an effort to do so, but that no effort was made until two months prior to his dismissal. These findings support the conclusion that plaintiff was dismissed for just cause.\nAm Jur 2d, Civil Service \u00a7 63.\nWhat constitutes unfair labor practice under state public employee relations acts. 9 ALR4th 20.\n2. Public Officers and Employees \u00a7 66 (NCI4th)\u2014 SBI agent\u2014 dismissal \u2014 procedure\nThe conclusion by the State Personnel Commission that plaintiff\u2019s dismissal was procedurally correct was supported by the findings where the SBI made specific findings that plaintiff\u2019s dismissal was recommended, a pre-dismissal conference was scheduled, plaintiff attended the conference, there is uncontra-dicted evidence in the record that the specific reasons for dismissal were reviewed with plaintiff during the conference and that he was given an opportunity to respond to the allegations, although there are no specific findings, and, although there are no findings and no evidence that plaintiff received advance written notice of the pre-dismissal conference, it is clear that the purposes of the conference were met in that plaintiff attended the conference, and plaintiff has not argued nor put forth evidence that any failure to receive written notice prejudiced him in any way.\nAm Jur 2d, Civil Service \u00a7\u00a7 52 et seq.\nWhat constitutes unfair labor practice under state public employee relations acts. 9 ALR4th 20.\n3. Public Officers and Employees \u00a7 67 (NCI4th)\u2014 SBI agent\u2014 dismissal \u2014 failure to meet reporting deadline \u2014 deadline reasonable\nThere was evidence in an action by an SBI agent dismissed for failing to meet reporting deadlines that the deadlines were reasonable where the rule was promulgated for the purpose of providing timely written reports to district attorneys, to aid in prosecution, and to enhance the credibility of the testimony of SBI agents, and the rule provides that the five-day requirement could be extended for legitimate reasons.\nAm jur 2d, Civil Service \u00a7 63.\n4. Public Officers and Employees \u00a7 66 (NCI4th)\u2014 SBI agent\u2014 dismissal \u2014 due process\nA dismissed SBI agent\u2019s pre-dismissal conference met the requirements of procedural due process where there were findings supported by substantial evidence that plaintiff was given both oral and written notice of the charges against him, and that he knew that the evidence consisted of reviews of his reports over a period of approximately four years; that plaintiff was given an opportunity to respond to the allegations and that plaintiff submitted a memo suggesting ways he could improve his performance in the future; and plaintiff never disputed that he did not maintain his records in accord with SBI policy or meet the reporting deadline.\nAm Jur 2d, Civil Service \u00a7\u00a7 52 et seq.\n5. Public Officers and Employees \u00a7 66 (NCI4th)\u2014 SBI agents \u2014 dismissal\u2014one rehired \u2014 equal protection\nThere was no violation of equal protection where plaintiff was dismissed as an SBI agent for not meeting reporting deadlines, while another agent who had not met the deadlines resigned and was rehired, but both agents had been given the option of resigning and re-applying and plaintiff chose not to resign. Nothing in the record suggests that plaintiff was singled out for dismissal or treated differently than the other agent. Furthermore, there is no evidence that plaintiff has re-applied.\nAm Jur 2d, Civil Service \u00a7\u00a7 52 et seq.\n6. Public Officers and Employees \u00a7 66 (NCI4th)\u2014 SBI agent\u2014 dismissal \u2014 warnings two years old\nIt was not improper for the North Carolina Department of Justice to dismiss plaintiff SBI agent based on warnings which were two years old. There is no requirement that the warnings occur within some period of time prior to the dismissal. Moreover, the violations here related to the very reasons for which the employee was dismissed.\nAm Jur 2d, Civil Service \u00a7\u00a7 52 et seq.\nAppeal by petitioner from judgment filed 27 October 1994 in Wake County Superior Court by Judge E. Lynn Johnson. Heard in the Court of Appeals 5 December 1995.\nYoung Moore and Henderson, P.A., by John A. Michaels, for petitioner-appellant.\nAttorney General Michael F. Easley, by Special Deputy Attorney General John H. Watters, for respondent-appellee State." }, "file_name": "0253-01", "first_page_order": 287, "last_page_order": 297 }