{ "id": 9249883, "name": "DONNA PITTMAN, Petitioner v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent", "name_abbreviation": "Pittman v. North Carolina Department of Health & Human Services", "decision_date": "2002-12-31", "docket_number": "No. COA01-1285", "first_page": "268", "last_page": "282", "citations": [ { "type": "official", "cite": "155 N.C. App. 268" } ], "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": "479 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "276", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 66", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11865185 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "71", "parenthetical": "emphasis added" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0066-01" ] }, { "cite": "427 S.E.2d 627", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "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", "year": 1993, "pin_cites": [ { "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": "692" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0689-01" ] }, { "cite": "481 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "691", "parenthetical": "quoting 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)" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11868692 ], "year": 1997, "pin_cites": [ { "page": "465-66", "parenthetical": "quoting 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)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0457-01" ] }, { "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": "533 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "528-29", "parenthetical": "agency failed to delineate whether it applied de novo or whole record review to particular issue" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496549 ], "year": 2000, "pin_cites": [ { "page": "274", "parenthetical": "agency failed to delineate whether it applied de novo or whole record review to particular issue" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0269-01" ] }, { "cite": "479 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "125 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11865676 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/125/0127-01" ] }, { "cite": "521 S.E.2d 730", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "734", "parenthetical": "\"respondent's behavior in leaving his post without authorization and failing to remain alert while on duty falls squarely within the category of unacceptable personal conduct\"" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242057 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0587-01" ] }, { "cite": "567 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "821" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250281 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0400-01" ] }, { "cite": "563 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "\"SPC properly required the petitioners to prove the absence of substantial evidence of just cause for their termination\"" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 882", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9133241 ], "year": 2002, "pin_cites": [ { "parenthetical": "\"SPC properly required the petitioners to prove the absence of substantial evidence of just cause for their termination\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0882-01" ] }, { "cite": "570 S.E.2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "925", "parenthetical": "\"The fact that [the] notice was given simultaneously' with the disciplinary action in this case is not a violation of N.C. G. S. \u00a7 126-35.\"" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 595", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250931 ], "year": 2002, "pin_cites": [ { "page": "604", "parenthetical": "\"The fact that [the] notice was given simultaneously' with the disciplinary action in this case is not a violation of N.C. G. S. \u00a7 126-35.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0595-01" ] }, { "cite": "274 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "258" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2677304 ], "year": 1981, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0389-01" ] }, { "cite": "470 U.S. 532", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299646 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "546, 547-48" }, { "page": "506-07" } ], "opinion_index": 0, "case_paths": [ "/us/470/0532-01" ] }, { "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": "349 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "342 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "921" }, { "page": "922-23" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523825 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "348-49" }, { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0339-01" ] }, { "cite": "516 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132292 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0411-01" ] }, { "cite": "507 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "277" }, { "page": "278", "parenthetical": "citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 547-48, 84 L. Ed. 2d 494, 506-07 (1985)" }, { "page": "280" }, { "page": "281-82" } ], "opinion_index": 0 }, { "cite": "349 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571708 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "321" }, { "page": "322", "parenthetical": "citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 547-48, 84 L. Ed. 2d 494, 506-07 (1985)" }, { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0315-01" ] }, { "cite": "468 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "816", "parenthetical": "\"When reviewing an agency decision for constitutional or procedural errors, this Court applies de novo review.\"" }, { "page": "816", "parenthetical": "quoting Loudermill, id." } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 682", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919720 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "686", "parenthetical": "\"When reviewing an agency decision for constitutional or procedural errors, this Court applies de novo review.\"" }, { "page": "686", "parenthetical": "quoting Loudermill, id." } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0682-01" ] }, { "cite": "546 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "181" }, { "page": "181-82" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435233 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "473-74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0470-01" ] }, { "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": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0070-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "118-19" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "year": 1994, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "opinion_index": 1 } ], "analysis": { "cardinality": 1229, "char_count": 33555, "ocr_confidence": 0.768, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.3033279160290812 }, "sha256": "9a5c56ea42a3442315a43227ca878f35cd77472753ad5d3af87e627311c6f10e", "simhash": "1:426cc48b643a2d46", "word_count": 5163 }, "last_updated": "2023-07-14T20:08:10.559314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES concurs.", "Judge WALKER dissents." ], "parties": [ "DONNA PITTMAN, Petitioner v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent" ], "opinions": [ { "text": "BIGGS, Judge.\nPetitioner (Donna Pittman) appeals from an order of the trial court affirming the State Personnel Commission\u2019s decision to uphold her termination by respondent, North Carolina Department of Health and Human Services (hereinafter referred to as NCDHHS). We affirm the trial court.\nPetitioner was employed by the North Carolina Special Care Center (NCSCC) from 1994 to 1998, as a Health Care Technician (HCT). The NCSCC, operated by respondent, is a 208 bed long-term care nursing facility for residents suffering from mental illness, Alzheimer\u2019s disease, senile dementia, and other psychological disorders, as well as unrelated medical or physical problems. NCSCC accepts patients who cannot be cared for elsewhere; their residents typically are unable to bathe, feed, or dress themselves, and cannot make decisions on their own. As an HCT, petitioner was responsible for the feeding, bathing, and general care of these residents.\nIn September, 1998, a new HCT expressed concerns about \u201cshort-cuts\u201d taken by some of the other HCT\u2019s on the sixth floor, where petitioner worked. Respondent\u2019s supervisory staff observed that the sixth floor distribution of meals took far less time than on other halls, and undertook an investigation. They interviewed HCTs, observed the care and feeding of residents on the sixth floor, and inspected the charts and records kept for sixth floor residents. During this investigation, several HCTs reported having seen petitioner discard the residents\u2019 evening snacks without offering them to the residents, while other reports indicated that petitioner had put a resident to bed without completing his bathing and shaving; had given another resident both his meal and also the meal intended for his roommate; and had allowed difficult residents to eat only sweets for supper. In early November, 1998, the assistant director of nursing met with petitioner to discuss respondent\u2019s concerns. Petitioner denied throwing out residents\u2019 food, distributing meals improperly, or failing to bathe patients in her care. She offered explanations for some of the alleged incidents, but the residents\u2019 charts were inconsistent with petitioner\u2019s explanations.\nOn 4 December 1998, NCSCC held a pre-dismissal conference with petitioner, and discussed with her the allegations of the other HCTs. Petitioner admitted substituting foods on occasion, but denied ever throwing out food or drink, except on rare occasions when an item had spoiled. She was dismissed the same day.\nPetitioner appealed her dismissal, and was granted a hearing before a NCDHHS officer in February, 1999. The hearing officer concurred with the decision to terminate her. Petitioner was then granted a contested case hearing, held before an Administrative Law Judge (AU) on 10 August 1999. Although the record suggests that the ALJ filed a decision favorable to petitioner on 15 August 1999, the decision was not made a part of the record. Respondent appealed, and the matter was heard by the State Personnel Commission (SPC) on 27 April 1999. The SPC issued a decision on 16 May 2000, reversing the ALJ\u2019s recommendation, and reinstating petitioner\u2019s dismissal. Petitioner sought judicial review in superior court, and on 13 July 2001, the court issued an order affirming the SPC\u2019s decision. Petitioner appeals from this order.\nStandard of Review\nPetitioner\u2019s appeal from the final decision of the SPC to the trial court is governed by N.C.G.S. \u00a7 150B-51(b) (2001). The statute authorizes the court to reverse or modify the agency\u2019s decision, or adopt the administrative law judge\u2019s decision if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\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, capricious, or an abuse of discretion.\nOn appeal, this Court must determine (1) whether the trial court applied the appropriate standard of review and, if so, (2) whether the court did so properly. Amanini v. N.C. Dep\u2019t of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994). The issues presented dictate the appropriate standard of review to be applied. \u201cWhere the petitioner alleges that the agency decision was either unsupported by the evidence, or arbitrary and capricious, the superior court applies the whole record test to determine whether the agency decision was supported by substantial evidence contained in the entire r\u00e9cord. Where the petitioner alleges that the agency decision was based on an error of law, the reviewing court must examine the record de novo, as though the issue had not yet been considered by the agency.\u201d Id.\nIn applying the whole record test, \u201c [substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Comr. of Insurance v. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977). \u201cIf substantial evidence supports an agency\u2019s decision after the entire record has been reviewed, the decision must be upheld.\u201d Blalock v. N.C. Dep\u2019t of Health and Human Servs., 143 N.C. App. 470, 473-74, 546 S.E.2d 177, 181 (2001).\nI.\nPetitioner argues first that the trial court erred by concluding that the dismissal letter of 8 December 1998 (1) sufficiently provided petitioner with notice of the reasons for her dismissal, and (2) did not violate either petitioner\u2019s right to due process guaranteed by the U.S. Constitution, or the requirements of N.C.G.S. \u00a7 126-35. We disagree with both contentions.\nPetitioner contends that the dismissal letter she received, informing her of the NCSCC's decision to terminate petitioner for \u201cviolation of our Abuse, Neglect, and Exploitation Policy,\u201d was constitutionally deficient. The trial court applied de novo review to this question, which we conclude is the correct standard of review. Owen v. UNC-G Physical Plant, 121 N.C. App. 682, 686, 468 S.E.2d 813, 816 (1996) (\u201cWhen reviewing an agency decision for constitutional or procedural errors, this Court applies de novo review.\u201d).\nWe next consider whether the trial court correctly applied de novo review to the issues concerning the dismissal letter. Petitioner is a career State employee. \u201cThe North Carolina General Assembly created, by enactment of the State Personnel Act, a constitutionally protected property interest in the continued employment of career State employees.\u201d Peace v. Employment Sec. Com\u2019n of North Carolina, 349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998). Petitioner\u2019s right to due process of law, \u201cguaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, \u00a7 \u00a7 19, 23, and 27 of the North Carolina Constitution[,]\u201d State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), applies to employment termination \u2022 procedures. Leiphart v. North Carolina School of the Arts, 80 N.C. App. 339, 348-49, 342 S.E.2d 914, 921, cert. denied, 349 S.E.2d 862, 318 N.C. 507 (1986).\nAlthough \u201cthe exact nature and mechanism of the required procedure will vary based upon the unique circumstances surrounding the controversy,\u201d \u201c[t]he fundamental premise of procedural due process protection is notice and the opportunity to be heard.\u201d Peace v. Employment Sec. Com\u2019n of North Carolina, 349 N.C. 315, 322, 507 S.E.2d 272, 278 (1998) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 547-48, 84 L. Ed. 2d 494, 506-07 (1985)). An employee\u2019s property interest in his or her employment \u201cis sufficiently protected by \u2018a pretermination opportunity to respond, coupled with post-termination administrative procedures[,]\u2019 and \u2018the minimal protection of fundamental fairness established by federal due process\u2019 \u201d is satisfied \u201cif the employee receives \u2018oral or written notice of the charges against him, an explanation of the employer\u2019s evidence, and an opportunity to present his side of the story.\u2019 \u201d Owen v. UNC-G Physical Plant, 121 N.C. App. 682, 686, 468 S.E.2d 813, 816 (1996) (quoting Loudermill, id.).\nThe dismissal letter which petitioner received is just one feature of a statutory scheme, outlined in N.C.G.S. \u00a7 Chapter 126, which provides an employee with notice and opportunity to be heard prior to termination, as well as the opportunity to appeal a termination decision. The North Carolina Supreme Court previously has held that the statutory procedure \u201cfully comports with the constitutional procedural due process requirements mandated by the Fourteenth Amendment, and no additional safeguards are needed to avoid erroneous deprivation.\u201d Peace at 327, 507 S.E.2d at 280.\nNonetheless, petitioner contends that this letter is \u201cunconstitutionally vague\u201d because it \u201ccontains no details as to time, place, events, or people involved.\u201d We disagree. The letter included the following:\n... [HCTs] have witnessed you pouring nourishments out prior to offering them to the Residents. Irene Moore, Julian Mack and Geishala Norfleet... have seen you pour [bedtime] nourishments down the sink in the kitchen and the Resident\u2019s room. Ms. Norfleet. . . [saw] you open nourishments and pour half of it out and then throw the remainder in the trash without offering them to the Resident. Ms. Moore has seen you pour nourishments down the kitchen sink and down sinks in the Resident\u2019s rooms prior to offering them[, and] indicated that . . . the self-feeders were the [only] ones that received the snack. Julian Mack has seen you pour nourishments down the sink without offering them to the Resident.... Mr. Mack ... [saw] you feeding only dessert to some [Residents] that are \u201cdifficult\u201d to feed. Ms. Moore observed you on one occasion feeding Resident # 11-58-87 a supper tray that belonged to Resident # 95-66-94. Ms. Moore has also observed Resident # 14-60-63 returned to bed by 3:30 p.m. - 3:35 p.m. in his gown with an unshaven face on his shower day when you were assigned to him.\nThe letter, comprising more than two pages, informs petitioner that the primary \u201cact or omission\u201d that led to her termination was petitioner\u2019s failure to provide residents the food and drink ordered for them, by (1) pouring bedtime snacks down the drain, rather than distributing them to residents, (2) switching dinner plates between residents with specific dietary needs, (3) feeding certain residents only dessert, and (4) substituting snacks without authorization. The dismissal letter specified individual co-workers who had observed this behavior, and identified the residents involved. The letter informed petitioner that her record keeping was inaccurate; that she had been observed to neglect hygiene care of at least one resident, identified in the letter; and listed specific NCSCC nursing and training classes petitioner had attended. The letter also summarized petitioner\u2019s prior responses to respondent\u2019s concerns, consisting of denials, claims that she was unaware of policies, and an assertion that witnesses to her actions were motivated by racial bias. We conclude that the letter sufficiently informed petitioner of the reasons for her dismissal to enable her to prepare for the contested case hearing. The letter also advised petitioner of her appeal rights, steering her to the statutory procedures that guard against erroneous termination of an employee:\nThe above practices can no longer be tolerated. As a permanent employee, you have the right to appeal this decision. Such an appeal must be submitted to Personnel, in writing on the enclosed Department of Human Resources form # 0660 within (15) calendar days of your receipt of this letter. A copy of the DHR directive #33 is also enclosed. Should you have any questions concerning appeal rights, please contact Ms. Shirley Howard, Human Resources Manager at [phone number].\nIt would appear that petitioner understood her right to appeal the decision; she requested and received a contested case hearing, a hearing before the SPC, a superior court review, and the present appeal.\nPetitioner also argues that the dismissal letter was constitutionally deficient because it allegedly contained inaccuracies and falsehoods. However, where \u201cpetitioner asserts that testimony by the agency\u2019s witnesses was inconsistent, [and that] the agency\u2019s witnesses were biased and delayed reporting the alleged misconduct, ... it is for the agency to decide the credibility of witnesses and conflicts in the evidence.\u201d Blalock v. Department of Health and Human Services, 143 N.C. App. 470, 546 S.E.2d 177, 181-82 (2001).\nFinally, petitioner argues that the dismissal letter violated N.C.G.S. \u00a7 126-35, because she received it at the same time that she was dismissed. Under the statute, \u201cthe employee shall, before the [disciplinary] action is taken, be furnished with a statement in writing setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employee\u2019s appeal rights.\u201d \u201cThe purpose of the statute is to notify the employee of the reasons for the disciplinary action and to advise him of his rights to appeal the disciplinary action.\u201d Employment Sec. Commission of North Carolina v. Wells, 50 N.C. App. 389, 392, 274 S.E.2d 256, 258 (1981). This is intended to \u201cprevent an employer from summarily discharging an employee and then searching for justifiable reasons for the dismissal.\u201d Leiphart v. North Carolina School of the Arts, 80 N.C. App. 339, 351, 342 S.E.2d 914, 922-23 (1986). See Kea v. Department of Health and Human Services, 153 N.C. App. 595, 604, 570 S.E.2d 919, 925, (2002) (\u201cThe fact that [the] notice was given simultaneously' with the disciplinary action in this case is not a violation of N.C. G. S. \u00a7 126-35.\u201d).\nIn the instant case, petitioner had both a pretermination conference before receiving the dismissal letter, and a post-termination contested case hearing after receipt of the letter. We conclude that the dismissal letter was neither constitutionally deficient, nor in violation of N.C.G.S. \u00a7 126-35, because of being given to petitioner simultaneously with her dismissal. Accordingly, this assignment of error is overruled.\nH.\nPetitioner argues next that the trial court erred in affirming the SPC\u2019s determination that there was just cause to terminate petitioner\u2019s employment for unacceptable personal conduct. She contends that: (1) the Commission\u2019s findings, that petitioner committed the acts for which she was terminated, were not supported by substantial evidence; (2) there was insufficient evidence that petitioner violated known or written work rules, and; (3) the acts for which petitioner was terminated, even if proven, constituted unsatisfactory job performance rather than unacceptable personal conduct. We disagree.\nTermination of career State employees is governed by N.C.G.S. \u00a7 126-35 (2001), which provides in part that a career State employee may not be \u201cdischarged, suspended, or demoted for disciplinary reasons, except for just cause.\u201d N.C.G.S. \u00a7 126- 35(a). The statute also provides that \u201c[t]he State Personnel Commission may adopt, subject to approval of the Governor, rales that define just cause.\u201d Accordingly, SPC has drafted a regulation stating that:\nThere are two bases for the discipline or dismissal of employees under the statutory standard of \u2018just cause\u2019 as set out in G.S. 126-35. These two bases are:\n(1) Discipline or dismissal imposed on the basis of unsatisfactory job performance, including grossly inefficient job performance.\n(2) Discipline or dismissal imposed on the basis of unacceptable personal conduct.\n25 NCAC 1J.0604 JUST CAUSE FOR DISCIPLINARY ACTION. In the present case, petitioner was dismissed for \u2018unacceptable personal conduct,\u2019 defined in the N.C. Administrative Code in relevant part as follows:\n(i) Unacceptable Personal Conduct is:\n(1) conduct for which no reasonable person should expect to receive prior warning; or\n(4) the willful violation of known or written work rules[.]\n25 NCAC 1J.0614(i)(1) and (4). \u201cAn employee challenging his or her termination for just cause has the burden of proving that the agency\u2019s decision was improper.\u201d Peace v. Employment Sec. Comm\u2019n of North Carolina, 349 N.C. 315, 328, 507 S.E.2d 272, 281-82 (1998). See also Best v. Department of Health and Human Services, 149 N.C. App. 882, 563 S.E.2d 573 (2002) (\u201cSPC properly required the petitioners to prove the absence of substantial evidence of just cause for their termination\u201d).\nA trial court\u2019s conclusion that just cause existed to dismiss petitioner is \u201can issue of law, which we review de novo.\u201d Steeves v. Scotland County Bd. of Health, 152 N.C. App. 400, 406, 567 S.E.2d 817, 821 (2002). Thus, in the case sub judice, the trial court properly concluded \u201cthe issue[] raised by the Petitioner, that. . . Respondent did not have just cause to dismiss her for improper personal conduct, . . . require[s] a de novo review by this Court.\u201d However, the SPC\u2019s findings supporting its conclusion must be based upon substantial evidence, N.C. Dept. of Correction v. McNeely, 135 N.C. App. 587, 521 S.E.2d 730 (1999), and petitioner\u2019s contention that the Commission\u2019s decision was not supported by sufficient evidence required the trial court to apply the \u201cwhole record\u201d test. Homoly v. North Carolina State Bd. of Dental Examiners, 125 N.C. App. 127, 479 S.E.2d 215 (1997).\nAlthough the trial court did not expressly state that it applied the whole record standard of review in the present case, it stated that its order was based upon \u201ca review of the papers, pleadings and other matters filed in this action, and upon review of the briefs submitted by each party.\u201d Even assuming that the trial court failed to apply whole record review to the issue of whether substantial evidence supported the Commission\u2019s order, on the facts of this case \u201cwe conclude [that] remand in the case sub judice is unnecessary.\u201d Sun Suites Holdings, LLC v. Board of Aldermen of Town of Garner, 139 N.C. App. 269, 274, 533 S.E.2d 525, 528-29 (2000) (agency failed to delineate whether it applied de novo or whole record review to particular issue).\nIn her assignments of error, petitioner alleged that the trial court\u2019s findings of fact numbers 5, 8, and 12-17 were not supported by substantial evidence. The challenged findings of fact essentially summarize witness testimony from the hearing and, we conclude, do so accurately. However, in her brief, petitioner argues more generally that the evidence was insufficient to allow the SPC to conclude that she had committed the acts for which she was terminated. We disagree.\nPetitioner was terminated for neglect of residents, in violation of respondent\u2019s \u2018Abuse, Neglect, and Exploitation\u2019 policy, and specifically for throwing out food instead of feeding it to the residents. The record evidence includes the following:\n1. Testimony by HCT Moore, that she had personally observed petitioner feeding a clinically overweight resident both his supper and also that intended for his roommate, a clinically underweight resident; opening fresh nourishments and then pouring them out in the kitchen sink, without ever offering them to the residents; and discarding other evening nourishments in resident Allen\u2019s room, without offering them to the residents.\n2. Testimony by HCT Mack, that he had heard petitioner \u2018pop open\u2019 fresh cans of the evening drink, and then saw her pouring them down the sink in resident Lindsey\u2019s room.\n3. Testimony by nursing director Batts that respondent had interviewed petitioner\u2019s co-workers and reviewed patient charts, and other records during their investigation; that petitioner\u2019s statements to her supervisor were inconsistent with her deposition testimony; and that intentionally withholding nourishment from residents was considered \u2018neglect\u2019 by respondent.\n4. Testimony by dietician Leake that for certain residents, it was medically important that they receive food as prescribed for them.\n5. Testimony of assistant nursing director Register, that when the HCTs were interviewed, petitioner was the only HCT identified as discarding residents\u2019 food; that petitioner had admitted substituting food on occasion; and that petitioner had been counseled on previous occasions for inappropriate or suggestive behavior with residents, and for falsifying her time sheet.\nPetitioner challenges the witnesses\u2019 testimony. She argues that the HCT witnesses were biased against her; that their testimony lacked details such as the exact date on which petitioner poured out food; that their observations were subject to innocent interpretations; and that the HCTs had an insufficient opportunity to make the observations to which they testified. However, the \u201cwhole record 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.\u201d Thompson v. Wake County Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977). \u201cFurther, the court may not \u2018disturb an agency\u2019s assessment of the credibility of the witnesses and the weight and sufficiency\u2019 to be given the evidence.\u201d Beauchesne v. University of North Carolina at Chapel Hill, 125 N.C. App. 457, 465-66, 481 S.E.2d 685, 691 (1997) (quoting 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)). We conclude that the testimony amply supported the SPC\u2019s findings that petitioner had committed the acts for which she was terminated. This assignment of error is overruled.\nWe next consider petitioner\u2019s contention that there was insufficient evidence that she violated known or written work rules. This argument is meritless. Petitioner was dismissed for violation of respondent\u2019s policies on neglect of residents. The dismissal letter states that:\nAccording to our Residents Right[s] Policy # 12-10 (Abuse, Neglect and Exploitation) located in the Administrative Manual: The ... neglect... of Residents will subject the employee to disciplinary action. Neglect is defined as the failure to provide care or services, necessary to maintain the mental health, physical health and well being of the Resident. Any committed or omitted act resulting in inadequate or improper care or treatment of a Resident.\nPetitioner belabors the issue of whether she was notified when respondent\u2019s feeding policy changed from requiring HCTs to offer residents nourishments two times versus three times before discarding the food as refused by the resident. However, petitioner was not fired for technical violation of respondent\u2019s policies, such as offering residents food twice instead of three times. Rather, witnesses testified that they personally observed petitioner discarding fresh snacks or nourishments by throwing them out or pouring them down the sink, without ever offering them to the residents. Petitioner does not argue, and we discern no reasonable possibility, that she could be unaware that simply throwing out food was a violation of known work rules. This assignment of error is overruled.\nFinally, we address petitioner\u2019s argument that the acts for which she was terminated, if proven, constitute unsatisfactory job performance, rather than unacceptable personal conduct.\nN.C.G.S. \u00a7 126-4, \u201cPowers and duties of State Personnel Commission,\u201d directs that \u201c[s]ubject to the approval of the Governor, the State Personnel Commission shall establish policies and rules governing each of the following: ... (7a) The separation of employees.\u201d Accordingly, the SPC has drafted 25 NCAC II .2301(b) (2002), which provides that \u201c[t]he basis for any disciplinary action taken in accordance with this policy falls into one of the two following categories: (1) Discipline imposed on the basis of job performance; [or] (2) Discipline imposed on the basis of personal conduct.\u201d Personal misconduct includes, inter alia, \u201cconduct for which no reasonable person should expect to receive prior warning\u201d and the \u201cwillful violation of known or written work rules.\u201d 25 NCAC II .2301(b) explains: \u201cThe Job Performance category is intended to be used in addressing performance-related inadequacies for which a reasonable person would expect to be notified of and allowed an opportunity to improve. Personal Conduct discipline is intended to be imposed for those actions for which no reasonable person could, or should, expect to receive prior warnings.\u201d Fuqua v. Rockingham County Bd. of Social Services, 125 N.C. App. 66, 71, 479 S.E.2d 273, 276 (1997) (emphasis added).\nWe have previously concluded that substantial evidence supported the SPC\u2019s conclusion that \u201cpetitioner had willfully violated known or written work rules\u201d by discarding nourishments that she was directed to feed residents. However, our determination of whether petitioner\u2019s conduct constitutes unacceptable personal conduct requires more than a mechanical application of 25 NCAC lJ.0614(i)(4) (\u201cUnacceptable Personal Conduct is . . . (4) the willful violation of known or written work rules\u201d). This Court previously has held that a mere \u201ctechnical\u201d violation of a work rule will not necessarily bring an employee\u2019s conduct within the statutory definition of unacceptable personal conduct. Steeves, 152 N.C. App. 400, 567 S.E.2d 817 (inadvertent violation of administrative requirement did not rise to the level of unacceptable personal conduct). Several considerations have been identified by this Court as relevant to our determination of this issue, including: (1) whether the violation was willful or unintentional, (2) whether the conduct pertained to the primary function of the agency, or to an ancillary administrative rule, (3) whether the \u2018disruption of work or safety of persons or property\u2019 was implicated by the conduct, and (4) whether the petitioner\u2019s conduct would likely cause any detriment to the agency. Thus, while the unwitting violation of a pre-audit requirement by the director of a county agency is not unacceptable personal conduct, see Steeves, id., a county agency director\u2019s intentional evasion of state laws governing purchasing and contract bids is sufficient to uphold the SPC\u2019s termination of petitioner for unacceptable personal conduct. Fuqua, 125 N.C. App. at 74, 479 S.E.2d at 278 (this Court \u201cmust affirm the trial court\u2019s determination\u201d if the \u201cBoard\u2019s dismissal of petitioner was supported by substantial evidence in the record and not arbitrary or capricious, or erroneous as a matter of law.\u201d). Similarly, where evidence showed that a prison guard left his post to smoke, read a novel, or sleep, the possibility of danger to persons or property renders his conduct unacceptable, and is sufficient to uphold the SPC\u2019s finding of just cause for termination. McNeely, 135 N.C. App. at 593, 521 S.E.2d at 734 (\u201crespondent\u2019s behavior in leaving his post without authorization and failing to remain alert while on duty falls squarely within the category of unacceptable personal conduct\u201d).\nIn the present case, petitioner was terminated primarily for multiple instances of throwing out nourishments intended for the residents in her care. We conclude that such behavior \u201cfalls squarely within the category of unacceptable personal conduct.\u201d Id. Her conduct was not a technical violation of an administrative regulation, but the willful failure to carry out one of the basic functions of her position. Further, evidence was presented that withholding or exchanging food could be detrimental to the health of certain residents. Most residents of NCSCC were completely dependent upon the HCTs \u2014 unable to leave the facility, incapable of obtaining other food, and in most cases unable even to articulate their needs to another HCT. Petitioner\u2019s conduct in intentionally discarding bedtime snacks to complete the evening rounds more quickly meets respondent\u2019s definition of neglect, and her intentional indifference to the effect of this on residents\u2019 health and quality of life constitutes both \u201cconduct for which no reasonable person should expect to receive prior warning,\u201d as well as \u201cwillful violation of known or written work rules.\u201d\nWe conclude that the SPC\u2019s conclusion, that there was just cause to terminate petitioner based on evidence that petitioner engaged in unacceptable personal conduct, was supported by substantial evidence in the record. For the reasons discussed above, we hold that the trial court did not err in affirming the SPC\u2019s order which upheld respondent\u2019s termination of petitioner\u2019s employment. The trial court\u2019s order is Affirmed.\nChief Judge EAGLES concurs.\nJudge WALKER dissents.", "type": "majority", "author": "BIGGS, Judge." }, { "text": "WALKER, Judge,\ndissenting.\nI respectfully dissent from the majority opinion affirming the order of the trial court.\nThis matter was heard by an able and experienced administrative law judge (ALJ), who made extensive findings and conclusions and recommended that petitioner not be terminated for unacceptable personal conduct pursuant to N.C. Gen. Stat. \u00a7 126-35 (2001), but instead be given a written warning for unsatisfactory performance. The State Personnel Commission rejected the ALJ\u2019s recommended decision with two members dissenting.\nAfter careful review of the record, I agree with the findings and conclusions of the ALJ. The evidence raises no more than a permissible inference that petitioner engaged in the conduct for which she was dismissed.", "type": "dissent", "author": "WALKER, Judge," } ], "attorneys": [ "Mast, Schulz, Mast, Mills & Stem, P.A., by David F. Mills, for petitioner-appellant.", "Attorney General Roy Cooper, by Assistant Attorney General Thomas M. Woodward, for the State." ], "corrections": "", "head_matter": "DONNA PITTMAN, Petitioner v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent\nNo. COA01-1285\n(Filed 31 December 2002)\n1. Administrative Law \u2014 standard of review \u2014 constitutional question \u2014 de novo\nThe trial court correctly applied the de novo standard of review to the constitutional sufficiency of a dismissal letter received by a health care technician employed by respondent.\n2. Public Officers and Employees \u2014 state employee \u2014 dismissal letter \u2014 not unconstitutionally vague\nA letter dismissing a state employee was not unconstitutionally vague where it comprised more than two pages, gave petitioner sufficient reasons for her dismissal to enable preparation for a contested case hearing, and advised petitioner of her appeal rights.\n3. Administrative Law \u2014 state employee dismissal letter\u2014 alleged inaccuracies \u2014 no constitutional deficiency\nA letter dismissing a state employee was not constitutionally deficient where the employee alleged that it contained inaccuracies and falsehoods. The agency decides the credibility of witnesses and conflicts in the evidence.\n4. Public Officers and Employees \u2014 state employee \u2014 dismissal letter \u2014 received at time of dismissal\nA letter dismissing a state employee was neither constitutionally deficient nor in violation of statutory requirements where petitioner received it at the same time she was dismissed. The purpose of the statute is to notify employees of the reasons for disciplinary actions and to advise them of their rights of appeal; in this case, petitioner had a pre-termination conference before receiving the letter and a post-termination conference after receiving it.\n5. Administrative Law \u2014 standard of review \u2014 not stated \u2014 no remand\nRemand of the dismissal of a state employee was unnecessary where the trial court did not state that it was applying the whole record standard of review to the question of whether there was substantial evidence to support the State Personnel Commission\u2019s decision, but the court did state that its order was based upon a review of the papers, pleadings, briefs, and other matters filed and submitted'in the action.\n6. Administrative Law \u2014 whole record test \u2014 conflicting evidence\nThere was substantial evidence to support the State Personnel Commission\u2019s findings that a heath care technician had committed the acts for which she was terminated. The whole record test does not allow the reviewing court to replace the agency\u2019s judgment between two reasonably conflicting views.\n7. Public Officers and Employees \u2014 dismissal of state employee \u2014 violation of work rules \u2014 knowledge of rules\nThere was sufficient evidence that a dismissed state health care technician violated known or written work rules where she pointed to a change in respondent\u2019s feeding policy, but there is no reasonable possibility that she would be unaware that acts such as throwing out food without offering it to residents violated the rules.\n8. Public Officers and Employees \u2014 termination of state employee \u2014 sufficiency of evidence\nThere was substantial evidence to support the State Personnel Commission\u2019s conclusion that there was just cause to terminate a health care technician at a long-term care nursing facility for unacceptable personal conduct where there were multiple instances of petitioner throwing out nourishments intended for residents in her care. This was a willful failure to carry out one of the basic functions of her position rather than a technical violation of an administrative regulation, and her intentional indifference to the effect on the residents\u2019 health and quality of life constitutes conduct for which no reasonable person should expect to receive a prior warning.\nJudge Walker dissenting.\nAppeal by petitioner from order entered 13 July 2001 by Judge Knox V. Jenkins, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 10 June 2002.\nMast, Schulz, Mast, Mills & Stem, P.A., by David F. Mills, for petitioner-appellant.\nAttorney General Roy Cooper, by Assistant Attorney General Thomas M. Woodward, for the State." }, "file_name": "0268-01", "first_page_order": 298, "last_page_order": 312 }