{ "id": 11868692, "name": "REBECCA BEAUCHESNE, Petitioner v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent", "name_abbreviation": "Beauchesne v. University of North Carolina at Chapel Hill", "decision_date": "1997-03-04", "docket_number": "No. COA95-914", "first_page": "457", "last_page": "470", "citations": [ { "type": "official", "cite": "125 N.C. App. 457" } ], "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": "466 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "287-88" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 444", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8525390 ], "year": 1993, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0689-01" ] }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "pin_cites": [ { "page": "410" } ], "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. 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App. 475", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527900 ], "year": 1991, "pin_cites": [ { "page": "478" } ], "opinion_index": 1, "case_paths": [ "/nc-app/101/0475-01" ] }, { "cite": "443 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "91-92" } ], "opinion_index": 1 }, { "cite": "114 N.C. App. 711", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8525390 ], "year": 1993, "pin_cites": [ { "page": "691" } ], "opinion_index": 1, "case_paths": [ "/nc-app/108/0689-01" ] } ], "analysis": { "cardinality": 1234, "char_count": 31545, "ocr_confidence": 0.754, "pagerank": { "raw": 1.484260741521082e-07, "percentile": 0.6617484262596005 }, "sha256": "39c54deb15f0963ea56403e6fed1a7ff78244561b90a08467c470e3a9601867e", "simhash": "1:1fecd5ef652e2c5e", "word_count": 5033 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GREENE concurring in the result.", "Judge MARTIN, Mark D., concurs." ], "parties": [ "REBECCA BEAUCHESNE, Petitioner v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent" ], "opinions": [ { "text": "JOHN, Judge.\nPetitioner Rebecca Beauchesne argues the trial court erred by affirming the State Personnel Commission\u2019s [SPC] decision that she was not unfairly denied leave without pay and that she could not pursue an appeal based on her application for shared leave. We conclude petitioner\u2019s contentions are unavailing.\nPetitioner was employed by the Ackland Art Museum (the museum) at the University of North Carolina at Chapel Hill (the University) from 9 September 1987 until she was terminated 29 May 1992. At the time of her discharge, petitioner\u2019s position, classified Secretary IV, was the only secretarial position in the museum. Petitioner was responsible for seventy-five percent of the correspondence processed by the museum, serving in addition as receptionist and telephone operator. Her duties also included managing the museum payroll, circulating mail, and filing.\nPetitioner left work early on 13 April 1992 due to a migraine headache and was subsequently hospitalized. Petitioner informed her employer that she would be unable to return to work for the remainder of the week. In letters to the museum dated 22 April and 28 April 1992, Dr. Xaver Hertle (Dr. Hertle) explained that petitioner had been hospitalized and that he was unsure when she would be able to return to work. Dr. Hertle\u2019s 28 April letter requested that petitioner be considered for shared leave, a process by which an employee might utilize accumulated leave voluntarily donated by another employee, see N.C. Admin. Code tit. 25, r. IE. 1301 et seq. (effective 1 May 1990), and included petitioner\u2019s application for such leave. Petitioner\u2019s 6 May letter to museum director Dr. Charles Millard (director Millard) also referred to her request for shared leave. However, director Millard neither affixed his signature in the designated space on the request form, nor forwarded it for approval to the University\u2019s shared leave coordinator in the Department of Human Resources.\nBefore receiving Dr. Hertle\u2019s 28 April letter, director Millard sent petitioner correspondence dated 30 April 1992, indicating she had exhausted her available sick and vacation leave and in fact was 42 hours overdrawn on allotted leave time. In this letter, director Millard stated the museum had processed the paperwork to place petitioner on leave without pay retroactive to 6 April 1992, pending a final decision concerning her position at the museum.\nIn an 8 May letter to petitioner, director Millard reported he would be unable to grant additional unpaid leave, citing the importance of petitioner\u2019s position to the museum, the inadequacy of temporary help, and budget constraints. He further indicated she must either return to work full time by 18 May 1992 or submit alternative proposals for accommodating the museum\u2019s needs as well as her own.\nOn 13 May 1992, Dr. Hertle wrote director Millard that petitioner was unable to return to work for the foreseeable future. Dr. Hertle requested that petitioner be placed on short term disability, and that director Millard forward the necessary forms. Director Millard replied 18 May 1992, indicating he had received no alternative proposals from petitioner concerning accommodation of the museum\u2019s needs, but extending the deadline for such proposals to 25 May. Director Millard also provided petitioner with the appropriate contact to apply for short term medical disability. See N.C.G.S. \u00a7 135-100 el seq. (1995). Petitioner\u2019s application for short term disability of one year beginning 13 June 1992 was approved following her termination and was subsequently extended for an additional year.\nPetitioner\u2019s 21 May reply to director Millard contained no alternative proposal. In a letter dated 28 May 1992, director Millard notified petitioner she would be separated effective 29 May 1992 due to \u201cunavailability when leave is exhausted.\u201d\nPetitioner appealed through the grievance process of the University, her discharge ultimately being upheld by University Chancellor Paul Hardin (Hardin). Hardin nonetheless recommended that petitioner\u2019s shared leave application be processed, and that she be allowed an extension of time to receive donated leave. Petitioner testified she eventually obtained donated leave satisfying all but thirty-two hours of her shared leave request.\nPetitioner filed a request for a contested case hearing before the Office of Administrative Hearings (OAH) on 16 December 1992. She alleged the University had \u201cacted erroneously; arbitrarily or capriciously; failed to act as required by law or rule; and/or failed to use proper procedure.\u201d The matter was heard 21 June 1993 before Administrative Law Judge Brenda B. Becton (the ALJ), who rendered a recommended decision in petitioner\u2019s favor 1 October 1993. In making her decision, the AU analyzed petitioner\u2019s termination under the factors set forth in N.C. Admin. Code tit. 25, r. 1E.1104 (November 1990) (25 NCAC IE. 1104).\nHowever, in a 15 August 1994 decision containing its own findings of fact and conclusions of law, the SPC upheld Hardin\u2019s action. The SPC concluded as a matter of law that petitioner\u2019s application for leave without pay was subject to review under N.C. Admin. Code tit. 25, r. 1D.0519 (November 1989) (25 NCAC 1D.0519), and that substantial evidence supported her discharge thereunder. With respect to petitioner\u2019s request for voluntary shared leave, the SPC concluded:\nThe State Personnel Act does not provide a right to challenge the denial of such leave. Therefore, the State Personnel Commission has no jurisdiction over this issue.\nOn 15 September 1994, petitioner sought judicial review in the trial court. The matter was heard 27 March 1995 and, \u201c[a]fter reviewing the whole record,\u201d the court affirmed the decision of the SPC in an order filed 17 April 1995. Petitioner appeals.\nPetitioner first argues the SPC failed to address whether the University, in denying her leave without pay, considered factors such as petitioner\u2019s needs, the likelihood of her returning to duty, and the ability of the University to reinstate her to a position of like status and pay upon her return. See 25 NCAC 1E.1104. She further contends the SPC\u2019s findings of fact were not supported by substantial evidence, and that its failure to adopt the AU\u2019s recommended findings was arbitrary and capricious. Petitioner\u2019s contentions cannot be sustained.\nJudicial review of an administrative decision is governed by the North Carolina Administrative Procedure Act (the APA). N.C.G.S. \u00a7 150B-1 et seq. (1995). Under the APA, the court reviewing a final agency decision may affirm the agency, remand for further proceedings, or it may reverse or modify the decision\nif 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.\nG.S. \u00a7 150B-51(b).\nOn appeal from the trial court to this Court, our task is twofold: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly. Haynes v. N.C. Dept. of Human Resources, 121 N.C. App. 513, 515, 470 S.E.2d 56, 57 (1996); Gray v. Orange County Health Dept., 119 N.C. App. 62, 73, 457 S.E.2d 892, 900, disc. review denied, 341 N.C. 649, 462 S.E.2d 511 (1995); In re Appeal of Harper, 118 N.C. App. 698, 701, 456 S.E.2d 878, 880, disc. review denied, 340 N.C. 567, 460 S.E.2d 317 (1995); Friends of Hatteras Island v. Coastal Resources Comm., 117 N.C. App. 556, 566-67, 452 S.E.2d 337, 344 (1995). However, we need consider only \u201cthose grounds for reversal or modification argued by the petitioner before the superior court, and properly assigned as error on appeal to this Court.\u201d Professional Food Services Mgmt. v. N.C. Dept. of Admin., 109 N.C. App. 265, 268, 426 S.E.2d 447, 449 (1993).\nPetitioner\u2019s argument the SPC erroneously failed to address the factors set out in 25 NCAC IE.1104 in approving her termination is tantamount to assertion of an error of law. See Amanini, 114 N.C. App. at 678, 443 S.E.2d at 120 (\u201crules, regulations and policies promulgated by the [SPC under statutory authority] have the force and effect of law,\u201d and erroneous interpretation thereof by agency constitutes an error of law). Accordingly, our de novo review of this contention is required. See In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993). De novo review compels a court to consider a question anew, as if not considered or decided below. Friends of Hatteras Island, 117 N.C. App. at 567, 452 S.E.2d at 344.\nThe SPC determined petitioner was properly terminated on grounds of \u201cunavailability\u201d pursuant to 25 NCAC 1D.0519. Relevant portions of the regulation state:\n.0519 UNAVAILABILITY WHEN LEAVE IS EXHAUSTED\n(a) An employee may be separated on the basis of unavailability when the employee becomes or remains unavailable for work after all applicable leave credits and benefits have been exhausted and agency management does not grant a leave without pay for reasons deemed sufficient by the agency. Such reasons include, but are not limited to, lack of suitable temporary assistance, criticality of the position, budgetary constraints, etc. Such a separation is an involuntary separation, and not a disciplinary dismissal....\n(b) Prior to separation, the employing agency shall meet with or at least notify the employee in writing, of the proposed separation, the efforts undertaken to avoid separation and why the efforts were unsuccessful. The employee shall have the opportunity in this meeting or in writing to propose alternative methods of accommodation. If the proposed accommodations are not possible, the agency must notify the employee of that fact and the proposed date of separation. . . .\n(c) Involuntary separation pursuant to this Rule may be grieved or appealed. The employing agency must also give the employee a letter of separation stating the specific reasons for the separation and setting forth the employee\u2019s right of appeal. The burden of proof on the agency in the event of a grievance is not just cause as that term exists in G.S. 126-35. Rather, the agency\u2019s burden is to prove that the employee was unavailable and that the agency considered the employee\u2019s proposed accommodations for his unavailability and was unable to make the proposed accommodations or other reasonable accommodations.\nPetitioner maintains director Millard, when reviewing her application for unpaid leave, should have considered the factors listed in 25 NCAC 1E.1104 in addition to those set out in subsection (a) above. 25 NCAC IE. 1104 reads as follows:\n.1104 AGENCY RESPONSIBILITY\nThe decision to grant leave without pay is an administrative one for which the agency head must assume full responsibility. Factors to consider are needs of the employee requesting leave, workload, need for filling employee\u2019s job, chances of employee returning to duty, and the obligation of the agency to reinstate employee to a position of like status and pay. It is the responsibility of the agency to administer leave without pay in a manner that is equitable to all of its employees. Reinstatement to the same position or one of like seniority, status and pay must be made upon the employee\u2019s return to work unless other arrangements are agreed to in writing. If it is necessary to fill a position which is vacant by leave without pay, the position may be filled by a temporary or time-limited permanent appointment, whichever is appropriate.\nPetitioner misapprehends the purport of the two regulations.\nThe foregoing sections governing unpaid leave apply in different situations. 25 NCAC 1D.0519 is contained in that portion of Title 25 labelled \u201cSECTION .0500 \u2014 SEPARATION,\u201d which also includes regulations dealing with resignation and retirement. Statutory authority for its enactment is derived specifically from N.C.G.S. \u00a7 126-4(7a) (1993), which provides that \u201cthe State Personnel Commission shall establish policies and rules governing . . . [t]he separation of employees,\u201d and N.C.G.S. \u00a7 126-35 (1993), which dictates procedures to be used in disciplinary actions against state employees.\nBy contrast, 25 NCAC 1E.1104 is situated in the segment of Title 25 denominated \u201cSECTION .1100 \u2014 OTHER LEAVES WITHOUT PAY;\u201d leave under this section may be granted for \u201ceducational purposes, vacation, or for any other reasons deemed justified by the agency head and the State Personnel Director,\u201d 25 NCAC IE. 1101. Statutory authority for 25 NCAC 1E.1104 is listed as being derived from N.C.G.S. \u00a7 126-4, the section setting forth powers and duties of the SPC, as a whole.\n25 NCAC ID.0519 covers circumstances wherein an employee is presently absent from work, has no leave time to cover the absence, and is therefore subject to separation. On the other hand, 25 NCAC IE. 1104 governs requests for unpaid leave at some future date, regardless of whether the employee has available leave time. In the former situation, because the employee is immediately absent from work, there may be a need for swift agency action; 25 NCAC 1D.0519 thus allows an agency to deny leave without pay \u201cfor reasons deemed sufficient by the agency.\u201d By contrast, 25 NCAC 1E.1104 requires that certain factors be considered by the agency in deciding whether to grant leave without pay, such as the \u201cneeds of the employee\u201d and the \u201cobligation [i.e., ability] of the agency to reinstate employee to a position of like status and pay\u201d when he or she returns. Obviously, consideration of such factors is more easily accomplished when the agency has advance notice of the employee\u2019s desire for leave time.\nUnder the circumstances sub judice, we conclude the SPC committed no error of law in determining 25 NCAC ID.0519 to be applicable to its review of petitioner\u2019s termination upon denial of her application for unpaid leave, and that consideration of the factors set out in 25 NCAC IE. 1104 was neither necessary nor appropriate.\nNotwithstanding, petitioner points to the requirement of 25 NCAC lD.0519(b) that the agency consider alternative proposals to separation put forward by the employee. Petitioner insists her application for unpaid leave qualified as an alternative proposal which was not properly considered by director Millard. However, when 25 NCAC ID.0519(a) and (b) are read together, it is evident the accommodations anticipated in the latter section do not include leave without pay, but rather such alternatives as reduction in hours from full to part-time, or alteration of work schedule to make the employee available to perform critical work. Indeed, inclusion of unpaid leave as an accommodation under 25 NCAC lD.0519(b) would render the discussion of unpaid leave in 25 NCAC lD.0519(a) redundant. When possible, a regulation is to be construed to give all parts meaning. Cf. Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670 (1969) (statutory provisions dealing with same subject matter should be construed to give meaning to each provision). Petitioner\u2019s contention that her request for unpaid leave constituted a proposed accommodation is therefore unfounded.\nRegarding petitioner\u2019s claim that the SPC\u2019s decision was not supported by substantial evidence and was arbitrary or capricious, the \u201cwhole record\u201d test must be employed. See Friends of Hatteras Island, 117 N.C. App. at 567, 452 S.E.2d at 344. In applying the \u201cwhole record\u201d test, the reviewing court must examine all competent evidence, including that which contradicts the agency\u2019s findings, to determine if the agency decision is possessed of a rational basis in the evidence. Henderson v. N.C. Dept. of Human Resources, 91 N.C. App. 527, 530-31, 372 S.E.2d 887, 889-90 (1988). However,\nthe \u201cwhole record\u201d test does not allow the reviewing court to replace the [agency\u2019s] judgment as between two reasonable conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.\nThompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977). Further, the court may not \u201cdisturb an agency\u2019s assess-merit of the credibility of the witnesses and the weight and sufficiency\u201d to be given the evidence. Teague v. Western Carolina University, 108 N.C. App. 689, 692, 424 S.E.2d 684, 686, disc. review denied, 333 N.C. 466, 427 S.E.2d 627 (1993).\nAs to the \u201carbitrary or capricious\u201d standard, this Court has observed that meeting the required showing is a difficult task. See Lewis v. N.C. Dept. of Human Resources, 92 N.C. App. 737, 740, 375 S.E.2d 712, 714 (1989). Under this measure, the reviewing court may not overturn decisions within an agency\u2019s discretion \u201cwhen that discretion is exercised in good faith and in accordance with the law.\u201d Id. Nonetheless, agency decisions may properly be characterized as \u201carbitrary or capricious\u201d if they are\n\u201cpatently in bad faith,\u201d or \u201cwhimsical\u201d in the sense that \u201cthey indicate a lack of fair and careful consideration\u201d or \u201cfail to indicate \u2018any course of reasoning and the exercise of judgment\u2019. ...\u201d\nId. (citations omitted).\nThe trial court\u2019s order indicates it employed the \u201cwhole record\u201d test in determining whether the SPC\u2019s decision was supported by substantial evidence or was arbitrary or capricious, and petitioner does not contend otherwise. The trial court having exercised the appropriate scope of review concerning these issues, we turn to an examination of the \u201cwhole record\u201d in light of petitioner\u2019s assignments of error to determine if the record sustains the court\u2019s ruling affirming the SPC. See Friends of Hatteras Island, 117 N.C. App. at 566-67, 452 S.E.2d at 344.\nReview of the \u201cwhole record\u201d reveals substantial evidence to support the SPC\u2019s findings that petitioner was properly terminated under applicable provisions of 25 NCAC ID.0519. Petitioner became unavailable for work upon falling ill 13 April 1992 without sick or vacation leave. She presented no evidence as to when, if ever, she might be able to return to work. In the meantime, her position as the only secretary in the museum was not adequately filled by part-time employees, resulting in considerable disruption. Moreover, petitioner failed to respond to director Millard\u2019s request to provide a proposal regarding how her needs could be accommodated with those of the museum. Such evidence, taken as a whole, supports the SPC\u2019s determination that director Millard properly evaluated and subsequently denied petitioner\u2019s request for leave without pay under 25 NCAC 1D.0519.\nIndeed, petitioner in her appellate brief tracks the factors set out in the regulation by asserting that\nher job was critical to the University and that her absence would cause a hardship on the smooth running of the Ackland Art Museum. The record reflects that she was a good employee and that in her absence things tended to fall apart. Employees could not get their work out, improper information was given to customers calling in, routine phone calls were handled improperly, payroll could not be handled properly, mail was lost and papers were misfiled. As the only secretary in the department, her position was vital, and temporary help was certainly not as good as having Petitioner on the job.\nMoreover, we reiterate that notwithstanding petitioner\u2019s failure to submit a proposed accommodation, the museum attempted to accommodate her absence by hiring temporary help. Substantial evidence in the record reveals this solution did not meet the needs of the museum.\nThe trial court therefore correctly determined petitioner failed to demonstrate that the SPC\u2019s challenged findings were \u201cunsupported by substantial evidence ... in view of the entire record as submitted.\u201d In addition, the SPC\u2019s decision may not fairly be characterized as \u201cpatently in bad faith\u201d or failing \u201cto indicate . . . \u2018the exercise of judgment,\u2019 \u201d Lewis, 92 N.C. App. at 740, 375 S.E.2d at 714, and the trial court thus did not err in upholding the SPC\u2019s ruling as neither \u201carbitrary [n]or capricious.\u201d\nII.\nWe turn next to petitioner\u2019s argument asserting failure to process her application for shared leave in a timely manner. The record indicates petitioner\u2019s request for shared leave accompanied Dr. Hertle\u2019s 28 April letter to director Millard, who neglected either to sign the request or to forward it for approval to the University shared leave coordinator. In his testimony, director Millard conceded he was unfamiliar with details of the University\u2019s shared leave policies, and that the Department of Human Resources had previously indicated petitioner\u2019s application was not handled properly.\nThe University responds that even if petitioner\u2019s shared leave application is accurately described as having been processed in a tardy fashion, the SPC correctly concluded it had no jurisdiction over the decision regarding shared leave and that it accordingly could not consider any failure to act on petitioner\u2019s application. The SPC\u2019s Conclusion of Law #7 stated that:\nThe [University] had the authority to review the merits of the voluntary shared leave request and approve or disapprove such a request. There is no obligation for an agency to grant an employee the opportunity for voluntary shared leave. The State Personnel Act does not provide a right to challenge the denial of such leave. Therefore, the State Personnel Commission has no jurisdiction over this issue.\nPetitioner contends that denial of the prompt opportunity to assemble shared leave constituted a contested case under the jurisdiction of the SPC. As petitioner is asserting the SPC committed an \u201cerror of law\" in its determination of lack of jurisdiction, our de novo review is again required. See McCrary, 112 N.C. App. at 165, 435 S.E.2d at 363. Based on the discussion which follows, we hold there is no right of appeal regarding processing of an employee\u2019s shared leave application.\nInitially, we observe that\n[t]here is no inherent right of appeal from an administrative decision to either the OAH or the courts. \u201cNo appeal lies from an order or decision of an administrative agency of the State or from judgments of special statutory tribunals whose proceedings are not according to the course of common law, unless the right is granted by statute.\u201d\nEmpire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569, 586, 447 S.E.2d 768, 778 (1994) (emphasis added) (quoting In re Assessment of Sales Tax, 259 N.C. 589, 592, 131 S.E.2d 441, 444 (1963)). The University is expressly exempted from the administrative hearings provisions of the APA, N.C.G.S. \u00a7 150B-l(f); accordingly, petitioner may be entitled to an OAH hearing, and subsequent review by the SPC, only if otherwise statutorily provided. Nailing v. UNC-CH, 117 N.C. App. 318, 324, 451 S.E.2d 351, 355 (1994), disc. review denied, 339 N.C. 614, 454 S.E.2d 255 (1995).\nThe University properly maintains the controlling statute is N.C.G.S. \u00a7 126-37(a) (1993), see Batten v. N.C. Dept. of Correction, 326 N.C. 338, 343, 389 S.E.2d 35, 38 (1990), overruled on other grounds, Empire Power, 337 N.C. at 584, 447 S.E.2d at 777, the relevant section of which provides:\nAppeals involving a disciplinary action, alleged discrimination, and any other contested case arising under this Chapter shall be conducted in the Office of Administrative Hearings as provided in Article 3 of Chapter 150B .... The State Personnel Commission shall make a final decision in these cases as provided in G.S. 150B-36.\nThe University further contends petitioner\u2019s claim does not fall within the purview of G.S. \u00a7 126-37(a), thereby depriving OAH and the SPC of jurisdiction over her grievance. We agree.\nThe University\u2019s failure to process petitioner\u2019s application for shared leave in a timely manner did not involve a disciplinary action, and petitioner has proffered no allegations of discrimination with regards to treatment of her application for shared leave. In addition, we have reviewed the State Personnel Act and have found no provision indicating that agency action on a request for shared leave gives rise to a contested case. We therefore conclude the SPC had no jurisdiction to consider petitioner\u2019s appeal on this issue.\nIn sum, petitioner\u2019s request for unpaid leave was properly considered by application of the factors set forth in 25 NCAC lD.0519(a). Further, substantial evidence in the record supports her involuntary separation in consideration of these factors, and the decision to terminate petitioner may not properly be characterized as arbitrary and capricious. Finally, failure to act on petitioner\u2019s application for shared leave in a timely manner did not give rise to a contested case under the State Personnel Act. The trial court thus did not err in affirming the decision of the SPC.\nAffirmed.\nJudge GREENE concurring in the result.\nJudge MARTIN, Mark D., concurs.\n. The concurrence herein highlights the divergence in opinions of this Court regarding our role on appeal of matters first decided in an administrative proceeding. The problem received detailed discussion in Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674-76, 443 S.E.2d 114, 118-19 (1994), and further in Willoughby v. Bd. of Trustees of State Employees Rel. Sys., 121 N.C. App. 444, 446-47, 466 S.E.2d 285, 287-88 (1996).\n. N.C.G.S. \u00a7 126-34.1 (effective 1 June 1995) now specifies with particularity those \u201cpersonnel actions or issues\u201d which may constitute the basis for \u201ca contested case\u201d under the State Personnel Act. However, the amended statute is inapplicable to the instant appeal.", "type": "majority", "author": "JOHN, Judge." }, { "text": "Judge GREENE\nconcurring in the result:\nI agree with the result reached by the majority. I do not agree that the majority has applied the correct standard of review. The majority states the standard of review for this Court: \u201c[0]ur task is twofold: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d I believe this Court\u2019s standard of review is the same as that of the superior court. Dockery v. N.C. Dep\u2019t of Human Resources, 120 N.C. App. 827, 829, 463 S.E.2d 580, 582 (1995); Wilkie v. N.C. Wildlife Resources Comm\u2019n, 118 N.C. App. 475, 482, 455 S.E.2d 871, 876 (1995); Fain v. State Residence Comm. of UNC, 117 N.C. App. 541, 543, 451 S.E.2d 663, 665, aff\u2019d, 342 N.C. 402, 464 S.E.2d 43 (1995); Brooks v. Ansco & Assocs., 114 N.C. App. 711, 715-16, 443 S.E.2d 89, 91-92 (1994); Teague v. Western Carolina University, 108 N.C. App. 689, 691, 424 S.E.2d 684, 686, disc. rev. denied, 333 N.C. 466, 427 S.E.2d 627 (1993); Jarrett v. N.C. Dep\u2019t of Cultural Resources, 101 N.C. App. 475, 478, 400 S.E.2d 66, 68 (1991). In other words, this Court\u2019s duty is to review the decision of the administrative agency (not the order of the superior court) in accordance with section 150B-51. Cf. Concrete Co. v. Bd. of Comm\u2019rs, 299 N.C. 620, 627, 265 S.E.2d 379, 383, reh\u2019g denied, 300 N.C. 562, 270 S.E.2d 106 (1980) (all appellate courts are bound by the same standards of review). Indeed the majority in this case reviewed the \u201cwhole record\u201d of the administrative agency and determined that there was \u201csubstantial evidence to support the SPC\u2019s findings that petitioner was properly terminated.\u201d\nI acknowledge that there are two lines of cases in this Court with respect to this Court\u2019s standard of review of cases from the Superior Court when that court has reviewed a decision of an administrative agency. Our Supreme Court, however, has held that the Court of Appeals must exercise the same standard of review as that exercised by the superior court when the review relates to an administrative agency decision. See Brooks, Comm\u2019r of Labor v. Grading Co., 303 N.C. 573, 579-81, 281 S.E.2d 24, 28-29 (1981); cf. Concrete Co., 299 N.C. at 626-27, 265 S.E.2d at 382-83 (Court of Appeals must exercise same standard of review as the superior court when reviewing zoning decisions of town board).", "type": "concurrence", "author": "Judge GREENE" } ], "attorneys": [ "North State Legal Services, Inc., by Garlene McNulty, for petitioner-appellant.", "Attorney General Michael F. Easley, by Associate Attorney General M. A. Kelly Chambers and Assistant Attorney General Anne J. Brown, for defendant-appellee." ], "corrections": "", "head_matter": "REBECCA BEAUCHESNE, Petitioner v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent\nNo. COA95-914\n(Filed 4 March 1997)\n1. Public Officers and Employees \u00a7 53 (NCI4th)\u2014 exhaustion of leave time \u2014 dismissal\u2014applicable administrative code\nIn an action arising from the dismissal of an employee who was unable to return to work after she had exhausted her leave time, the State Personnel Commission committed no error of law in determining 25 NCAC 1D.0519 to be applicable, and in determining that consideration of the factors set out in 25 NCAC IE. 1104 was neither necessary nor appropriate because 25 NCAC 1D.0519 covers circumstances wherein an employee is presently absent from work, has no leave time to cover the absence, and is therefore subject to separation. 25 NCAC IE. 1104 governs requests for unpaid leave at some futur\u00e9 date, regardless of whether the employee has available leave time.\nAm Jur 2d, Job Discrimination \u00a7 1067; Wrongful Discharge \u00a7 190.\n2. Public Officers and Employees \u00a7 53 (NCI4th)\u2014 exhaustion of leave \u2014 application for leave without pay \u2014 not an alternative proposal\nIn an action arising from petitioner\u2019s discharge from a secretarial position at the Ackland Museum at the University of North Carolina at Chapel Hill after exhausting her sick and vacation leave, her application for unpaid leave did not qualify as an alternative proposal under 25 NCAC lD.0519(b) because it is evident that the accommodations anticipated in that provision do not include leave without pay, but rather such alternatives as reduction in hours from full to part-time, or alteration of the work schedule to make the employee available to perform critical work.\nAm Jur 2d, Job Discrimination \u00a7 1067; Wrongful Discharge \u00a7 190.\n3. Public Officers and Employees \u00a7 53 (NCI4th)\u2014 leave exhausted \u2014 employee terminated \u2014 State Personnel Commission review \u2014 whole record test\nThe trial court did not err in an action arising from petitioner\u2019s discharge as a secretary for the Ackland Museum at the University of North Carolina at Chapel Hill by upholding the State Personnel Commission\u2019s ruling as neither arbitrary nor capricious where a review of the whole record revealed substantial evidence to support the Commission findings that petitioner was properly terminated under applicable provisions of 25 NCAC 1D.0519 and petitioner presented no evidence of when, if ever, she would return to work.\nAm Jur 2d, Administrative Law \u00a7\u00a7 529-532.\n4. Public Officers and Employees \u00a7 53 (NCI4th)\u2014 shared leave application \u2014 failure to process \u2014 no agency action\u2014 not a contested case\nThe State Personnel Commission properly ruled that petitioner did not have a right of appeal regarding the failure to process in a timely manner a shared leave application. The failure to process petitioner\u2019s application did not involve a disciplinary action, petitioner has proffered no allegations of discrimination, and there is no provision in the State Personnel Act indicating that agency action on a request for shared leave gives rise to a contested case.\nAm Jur 2d, Administrative Law \u00a7\u00a7 498, 499.\nJudge Greene concurring in the result.\nAppeal by petitioner from order entered 17 April 1995 by Judge Osmond Smith in Alamance County Superior Court. Heard in the Court of Appeals 19 April 1996.\nNorth State Legal Services, Inc., by Garlene McNulty, for petitioner-appellant.\nAttorney General Michael F. Easley, by Associate Attorney General M. A. Kelly Chambers and Assistant Attorney General Anne J. Brown, for defendant-appellee." }, "file_name": "0457-01", "first_page_order": 495, "last_page_order": 508 }