{
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  "name": "SYDNEY CHERYL SUTTON, Petitioner v. NORTH CAROLINA DEPARTMENT OF LABOR, Respondent",
  "name_abbreviation": "Sutton v. North Carolina Department of Labor",
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    "judges": [
      "Judges JOHN and HUNTER concur."
    ],
    "parties": [
      "SYDNEY CHERYL SUTTON, Petitioner v. NORTH CAROLINA DEPARTMENT OF LABOR, Respondent"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nThe North Carolina Department of Labor (NCDOL) appeals from the Superior Court\u2019s reversal and remand of the State Personnel Commission\u2019s (SPC) order determining, inter alia, that Sidney Cheryl Sutton (Plaintiff) was not discriminated against based on her sex when she was not promoted to the position of Safety Compliance Officer I (SCO-I).\nPlaintiff, a female State employee of NCDOL, applied for a promotion to one of five SCO-I positions available in April of 1995. Plaintiff was denied the promotion, and all five positions were filled by male applicants. Plaintiff alleges she was discriminated against and denied the promotion based on her sex, and was retaliated against because of her allegations of sexual harassment against a former supervisor.\nOn 2 November 1995, Plaintiff filed a Petition for a Contested Case Hearing in the Office of Administrative Hearings, and a Notice of Contested Case and Assignment was issued on 14 November 1995. Plaintiff\u2019s case came before Administrative Law Judge Meg Scott Phipps (ALJ), who, on 4 February 1997, issued a Recommended Decision determining that Plaintiff \u201cshould be placed in the first available [SCO-I] position. She should also receive back pay and front pay, if necessary, as well as attorney\u2019s fees.\u201d\nThis matter then was heard before the SPC on 10 April 1997. In declining to accept the AU\u2019s Recommended Decision, the SPC determined that Plaintiff \u201cwas not discriminated against based on her sex when she was not promoted to [SCO-I]\u201d and \u201c[the] five successful candidates that were hired had better qualifications for the position.\u201d The SPC also found Plaintiff \u201cwas not retaliated against because of her allegations of sexual harassment.\u201d\nOn 22 July 1997, Plaintiff filed a Petition for Judicial Review in the Superior Court of Wake County, Judge Robert L. Farmer (Judge Farmer) presiding, requesting that the SPC\u2019s Final Decision be reversed, and the Recommended Decision of the AU be adopted. The petition also alleged that the SPC\u2019s Final Decision was \u201caffected by [an] error of law, [was] arbitrary and capricious, and [was] not supported by substantial evidence in the record.\u201d Judge Farmer entered an order on 8 January 1998 simply stating, \u201cUpon consideration of the arguments presented and the record in this matter, it is, ORDERED, that the Final Decision of the [SPC] is hereby REVERSED, and this action is REMANDED to the [SPC] for further proceedings.\u201d Judge Farmer did not state his specific reasons for reversal or the issues to be resolved on remand. NCDOL filed notice of appeal to this Court on 30 January 1998.\nThe dispositive issue is whether Judge Farmer\u2019s order is sufficient to allow this Court to conduct the appropriate standard of review.\n\u201cThe proper standard for the superior court\u2019s judicial review [of an administrative agency\u2019s decision] depends upon the particular issues presented on appeal.\u201d ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997). If the petitioner asserts the agency\u2019s decision was not supported by competent evidence or was arbitrary and capricious, the superior court must apply the \u201cwhole record\u201d test. Id. This test requires the review of all competent evidence to determine whether the agency\u2019s decision was supported by substantial evidence. Id. When a petitioner alleges an error of law in the agency\u2019s decision, the superior court must conduct a \u201cde novo\u201d review, considering the matter anew, and freely substituting its own judgment for the agency\u2019s judgment. Dorsey v. UNC-Wilmington, 122 N.C. App. 58, 62, 468 S.E.2d 557, 559, cert. denied, 344 N.C. 629, 477 S.E.2d 37 (1996). This Court reviews a superior court\u2019s order regarding an agency decision for any errors of law. ACT-UP, 345 N.C. at 706, 483 S.E.2d at 392. This requires \u201ca twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d Id.\nThe trial court, when sitting as an appellate court to review an administrative agency\u2019s decision, must set forth sufficient information in its order to reveal the scope of review utilized and the application of that review. It is not necessary, however, that it \u201cmake findings of fact and enter a judgment thereon in the same manner as the court would be when acting in its role as trial court.\u201d Shepherd v. Consolidated Judicial Retirement System, 89 N.C. App. 560, 562, 366 S.E.2d 604, 605 (1988).\nIn this case, the superior court\u2019s order reversing and remanding the SPC\u2019s decision is completely silent as to both the scope of review utilized and its application. We, therefore, are unable to determine whether the review was appropriate and properly conducted. Accordingly, we vacate the order and remand the case to the superior court for the entry of a new order consistent with this opinion.\nVacated and remanded.\nJudges JOHN and HUNTER concur.\n. We note that Judge Farmer has retired since the entry of this order. In the event Judge Farmer is not available for the entry of a new order, as required by this opinion, the Petition for Judicial Review must be reheard before another superior court judge and a new order entered at the conclusion of that hearing.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Patton Boggs, L.L.P., by James S. Schenck, TV and Judith K. Guibert, for petitioner-appellee.",
      "Attorney General Michael F. Easley, by Special Deputy Attorney General Ralf F. Haskell and Assistant Attorney General Daniel D. Addison, for the respondent-appellant."
    ],
    "corrections": "",
    "head_matter": "SYDNEY CHERYL SUTTON, Petitioner v. NORTH CAROLINA DEPARTMENT OF LABOR, Respondent\nNo. COA98-539\n(Filed 16 February 1999)\nAdministrative Law\u2014 judicial review \u2014 order\u2014inadequate for appellate review\nA superior court order reversing and remanding a State Personnel Commission decision was remanded where the decision was completely silent as to both the scope of review utilized and its application.\nAppeal by respondent from order dated 8 January 1998 by Judge Robert L. Farmer in Wake County Superior Court. Heard in the Court of Appeals 26 January 1999.\nPatton Boggs, L.L.P., by James S. Schenck, TV and Judith K. Guibert, for petitioner-appellee.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Ralf F. Haskell and Assistant Attorney General Daniel D. Addison, for the respondent-appellant."
  },
  "file_name": "0387-01",
  "first_page_order": 421,
  "last_page_order": 423
}
