{ "id": 8320142, "name": "MARSHA A. EARLY, Petitioner v. COUNTY OF DURHAM DEPARTMENT OF SOCIAL SERVICES, Respondent", "name_abbreviation": "Early v. County of Durham Department of Social Services", "decision_date": "2005-08-16", "docket_number": "No. COA04-35", "first_page": "344", "last_page": "366", "citations": [ { "type": "official", "cite": "172 N.C. App. 344" } ], "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": "598 S.E.2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631397, 12631398, 12631399 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/598/0136-03", "/se2d/598/0136-01", "/se2d/598/0136-02" ] }, { "cite": "358 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631402, 12631347, 12631397, 12631366 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/598/0138-01", "/se2d/597/0133-01", "/se2d/598/0136-03", "/se2d/597/0767-01" ] }, { "cite": "589 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "747" }, { "page": "747" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. 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Bd. of Comm'rs, 274 N.C. 343, 346, 163 S.E.2d 387, 390 (1968)" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 550", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435629 ], "year": 2001, "pin_cites": [ { "page": "553", "parenthetical": "quoting Harris v. Bd. of Comm'rs, 274 N.C. 343, 346, 163 S.E.2d 387, 390 (1968)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0550-01" ] }, { "cite": "610 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "361", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "year": 2005, "pin_cites": [ { "page": "402", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0400-01" ] }, { "cite": "451 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519209, 2520269, 2519598, 2518574, 2519998 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0309-05", "/nc/338/0309-02", "/nc/338/0309-03", "/nc/338/0309-01", "/nc/338/0309-04" ] }, { "cite": "432 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526373 ], "year": 1993, "pin_cites": [ { "page": "737" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0730-01" ] }, { "cite": "446 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12137315 ], "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0590-01" ] }, { "cite": "559 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "665" } ], "opinion_index": 0 }, { "cite": "355 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220028 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0269-01" ] }, { "cite": "552 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "268", "parenthetical": "Greene, J., dissenting" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 388", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11357914 ], "year": 2001, "pin_cites": [ { "page": "392", "parenthetical": "Greene, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0388-01" ] }, { "cite": "79 N.C. L. Rev. 1571", "category": "journals:journal", "reporter": "N.C. L. Rev.", "opinion_index": 0 }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2004, "pin_cites": [ { "page": "896" }, { "page": "894" }, { "page": "895" }, { "page": "895", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "898", "parenthetical": "internal quotation marks omitted" }, { "page": "898" }, { "page": "898" }, { "page": "898" }, { "page": "898" } ], "opinion_index": 0 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "662" }, { "page": "659" }, { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2003, "pin_cites": [ { "page": "(bl)" }, { "page": "(b2)" }, { "page": "(c)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "560 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "398", "parenthetical": "holding that agency did not comply with \u00a7 150B-23(f) when it specified that the petitioner had 30 days to file a contested case petition with OAH pursuant to N.C. Gen. Stat. \u00a7 130A-24, but gave an incorrect address for OAH" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 374", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9128126 ], "year": 2002, "pin_cites": [ { "page": "379", "parenthetical": "holding that agency did not comply with \u00a7 150B-23(f) when it specified that the petitioner had 30 days to file a contested case petition with OAH pursuant to N.C. Gen. Stat. \u00a7 130A-24, but gave an incorrect address for OAH" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0374-01" ] }, { "cite": "122 S. Ct. 48", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 2001, "opinion_index": 0 }, { "cite": "151 L. Ed. 2d 18", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "534 U.S. 818", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9112130, 9112067, 9112326, 9112262, 9112233, 9112361, 9112075, 9112041, 9112204, 9112110, 9112178, 9112155, 9112091 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/534/0818-06", "/us/534/0818-02", "/us/534/0818-12", "/us/534/0818-11", "/us/534/0818-10", "/us/534/0818-13", "/us/534/0818-03", "/us/534/0818-01", "/us/534/0818-09", "/us/534/0818-05", "/us/534/0818-08", "/us/534/0818-07", "/us/534/0818-04" ] }, { "cite": "241 F.3d 374", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11137136 ], "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/f3d/241/0374-01" ] }, { "cite": "547 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 376", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135664, 135633, 135575, 135577, 135838 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0376-03", "/nc/353/0376-01", "/nc/353/0376-04", "/nc/353/0376-02", "/nc/353/0376-05" ] }, { "cite": "538 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "625", "parenthetical": "\"The 30-day limitation period of N.C. Gen. Stat. \u00a7 126-38 does not begin to run until notice is provided in accordance with these requirements [of N.C. Gen. Stat. \u00a7 150B-23(f)].\"" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 771", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135521 ], "year": 2000, "pin_cites": [ { "page": "774", "parenthetical": "\"The 30-day limitation period of N.C. Gen. Stat. \u00a7 126-38 does not begin to run until notice is provided in accordance with these requirements [of N.C. Gen. Stat. \u00a7 150B-23(f)].\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0771-01" ] }, { "cite": "350 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "85-86" } ], "opinion_index": 0 }, { "cite": "318 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4734194 ], "year": 1986, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0577-01" ] }, { "cite": "454 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556193, 2559269, 2556240, 2556593, 2558195 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0614-05", "/nc/339/0614-02", "/nc/339/0614-01", "/nc/339/0614-03", "/nc/339/0614-04" ] }, { "cite": "451 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "355", "parenthetical": "holding that a failure to comply with the 30-day deadline set out in N.C. Gen. Stat. \u00a7 126-38 deprives OAH, and thus this Court, of subject matter jurisdiction" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525281 ], "year": 1994, "pin_cites": [ { "page": "324-25", "parenthetical": "holding that a failure to comply with the 30-day deadline set out in N.C. Gen. Stat. \u00a7 126-38 deprives OAH, and thus this Court, of subject matter jurisdiction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0318-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-38", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2003, "opinion_index": 0 }, { "cite": "552 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 209", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138471 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0209-01" ] }, { "cite": "541 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "753" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439337 ], "year": 2001, "pin_cites": [ { "page": "5" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0001-01" ] }, { "cite": "571 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "688" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248913 ], "year": 2002, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0071-01" ] }, { "cite": "462 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793220, 793188, 793196, 793104, 793244 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0649-03", "/nc/341/0649-04", "/nc/341/0649-01", "/nc/341/0649-05", "/nc/341/0649-02" ] }, { "cite": "457 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 62", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913588 ], "year": 1995, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0062-01" ] }, { "cite": "479 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "276", "parenthetical": "discussing when warnings are not required prior to termination for cause" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 66", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11865185 ], "year": 1997, "pin_cites": [ { "page": "71", "parenthetical": "discussing when warnings are not required prior to termination for cause" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0066-01" ] }, { "cite": "573 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511398, 1511220, 1511410, 1511374 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0444-02", "/nc/356/0444-01", "/nc/356/0444-03", "/nc/356/0444-04" ] }, { "cite": "567 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "821-22" }, { "page": "822" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. 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Stat.", "weight": 11, "year": 2003, "pin_cites": [ { "page": "(a)(2)" }, { "page": "(c)" }, { "page": "(c)(l)" }, { "page": "(a)(2)" }, { "page": "(a)(2)" }, { "page": "(a)(2)" }, { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 12, "year": 2003, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(d)" }, { "page": "(d)" }, { "page": "(d)" }, { "page": "97" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1538, "char_count": 53185, "ocr_confidence": 0.755, "pagerank": { "raw": 5.098009419941138e-07, "percentile": 0.9382328853921599 }, "sha256": "09e9eadbce4511f10dea38898b44dfa43f1c94f0fc8b331d57f1998f4c7b1932", "simhash": "1:dbfc3e46d5be1512", "word_count": 8728 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and LEVINSON concur." ], "parties": [ "MARSHA A. EARLY, Petitioner v. COUNTY OF DURHAM DEPARTMENT OF SOCIAL SERVICES, Respondent" ], "opinions": [ { "text": "GEER, Judge.\nRespondent Durham County Department of Social Services (\u201cDSS\u201d), appeals from the decision of the trial court upon a petition for judicial review, holding that DSS terminated the employment of petitioner Marsha A. Early without just cause. DSS argues on appeal: (1) that Early was not entitled to file a contested case alleging a lack of just cause, (2) that Early\u2019s contested case petition was not timely filed, (3) that this Court should order further proceedings on the just cause claim, and (4) that, in any event, a local governmental employee is not entitled to recover back pay or attorneys\u2019 fees. We hold that the trial court had subject matter jurisdiction over Early\u2019s just cause claim and that the contested case was timely. Further, we hold that the issue of just cause has been fully litigated and determined and DSS has offered no justification for additional proceedings or for reversal of the trial court\u2019s conclusion that DSS lacked just cause for terminating Early\u2019s employment. Finally, because Early prevailed below, we hold that the trial court could properly decide to award her back pay and attorneys\u2019 fees. Accordingly, we affirm.\nFacts\nMarsha Early began work on 3 January 2000 as a Child Support Agent II in the Establishment Unit of the DSS Child Support Department. Her immediate supervisor was Laurie Hasty, who in turn reported to Jerome Brown, the Program Manager. Approximately three months after she began work, on 4 April 2000, Early underwent emergency surgery. Early and her husband called Hasty, notified her why Early would not be reporting to work, and requested leave without pay (\u201cLWOP\u201d) for the time necessary to recover from the surgery. On 6 April 2000, Early submitted the required paperwork to Hasty. On 17 April 2000, DSS approved LWOP for the period 4 April 2000 through 4 May 2000. Subsequently, Early requested and was granted an extension until 22 May 2000. She received additional time off through 29 May 2000 because of the death of her father.\nOn 4 August 2000, Early was involved in a car accident on her way to work. On 17 October 2000, a doctor advised Early that she required back surgery and that she would need approximately eight to twelve weeks to recover from the surgery. Early testified that her doctor gave her the choice of having the surgery on the following day, 18 October 2000, or at a later date of Early\u2019s choosing. Early telephoned Hasty, told her of the doctor\u2019s diagnosis, and asked Hasty if she would grant Early leave so that she could have the surgery the next day. Hasty replied, \u201cno problem.\u201d Based on Hasty\u2019s response, Early elected to have the surgery on 18 October 2000. Early testified that she would not have chosen to have the surgery then if Hasty had not verbally approved the leave request.\nOn the morning of 18 October 2000, Hasty faxed the appropriate LWOP forms to Early\u2019s doctor. Early underwent her surgery on the same day. On 19 October 2000, Early\u2019s doctor completed the LWOP forms and Early\u2019s husband faxed the forms to three different fax numbers provided by Hasty. On the forms, the doctor indicated that it would be necessary for Early to be absent from work for approximately eight to twelve weeks. On 23 October 2000, Early\u2019s husband also hand-delivered the completed forms to Hasty. DSS did not indicate to Early or her husband any problem with the leave request. Based on her doctor\u2019s projection, Early anticipated returning to work on 17 January 2001.\nIn a pleading filed with the Office of Administrative Hearings, DSS stated: \u201cAlthough [DSS] initially granted [Early\u2019s] LWOP through January 17, [Early\u2019s] absence was creating a hardship on the unit such that it was not in the best interest of [DSS] for [Early] to remain on LWOP.\u201d Approximately one to two weeks after Early\u2019s communications with Hasty, Hasty met with Brown to discuss the potential impact of Early\u2019s absence. Hasty told Brown that her unit could only handle Early\u2019s caseload through 13 December 2000 without there being a hardship on her unit. Brown and Hasty then recommended to DSS\u2019 director, Daniel C. Hudgins, that Early\u2019s LWOP extend only until 13 December 2000.\nAccordingly, on 14 November 2000, Hudgins mailed Early a letter stating that her LWOP would last only until 13 December 2000. Specifically, the letter stated: \u201cYou are on Leave Without Pay due to a medical condition effective October 19, 2000. . . . Since you are not eligible for Family Medical Leave, you will be expected to return to work full-time no later than December 13, 2000. You must bring a Fitness for Duty Statement from your medical doctor indicating that you are able to work with no limitations.\u201d The letter did not state what would happen if Early was unable to obtain a \u201cFitness for Duty Statement\u201d from her doctor indicating no work limitations as of 13 December 2000.\nEarly waited to reply to the letter until after her post-operation appointment with her doctor in early December. At that doctor\u2019s visit, Early\u2019s doctor recommended that she not return to work on 13 December 2000 in order to ensure that her spinal alignment remained intact. The doctor faxed a letter to DSS indicating that Early was still under his care and would be able to return to work on 29 January 2001, but that, after that date, she would have two restrictions lasting for an additional four weeks: (1) no prolonged bending, stooping, standing, or sitting, and (2) no lifting of more than 10 pounds.\nOn 13 December 2000, Early called Hasty at work and left a message on her voice mail, stating that she was calling to see if Hasty had received the doctor\u2019s letter. Hasty returned Early\u2019s call that day, confirmed that she had received the doctor\u2019s fax, and stated that she was placing it in Early\u2019s personnel file. During the course of this conversation with plaintiff, Hasty made no comment suggesting that plaintiff had exhausted her LWOP or that her employment was at risk.\nNevertheless, on the same day, 13 December 2000, Director Hudgins mailed Early a letter notifying her:\nThis is a follow-up letter to inform you that your employment with the County of Durham is terminated effective December 13, 2000.\nUnless an extension has been approved, any employee who fails to report to work at the expiration of a leave of absence, shall be considered Absent Without Leave (AWOL) and will be separated from the County without notice.\nHudgins also attached a copy of the appeals process at DSS.\nIn accordance with that process, Early submitted a grievance to her immediate supervisor, Hasty, within 15 days of receiving her termination letter. On 22 December 2000, Hasty responded: \u201cLeave without pay is granted only with the approval of the Department Head and supervisor and is based on the needs of the agency such as workload, need to fill the employee\u2019s job, etc. These factors were used in determining that we could only grant your leave without pay request until December 13, 2000.\u201d Within five days, Early then appealed to Hudgins. Hudgins responded in a letter dated 4 January 2001.\nOn 19 February 2001, Early filed a contested case petition with the State Office of Administrative Hearings (\u201cOAH\u201d), alleging (1) that she was dismissed without just cause contrary to N.C. Gen. Stat. \u00a7 126-35(a) (2003) and (2) that she was discriminated against based on her gender, age, and handicapping condition. An administrative law judge (\u201cALJ\u201d) denied DSS\u2019 motion to dismiss the petition as untimely after finding that DSS had failed to follow the required procedures outlined in N.C. Gen. Stat. \u00a7 150B-23(f) (2003) regarding notification of appeal rights.\nFollowing a two-day hearing, the AU rendered an opinion containing 73 findings of fact. Based on those findings, the AU (1) dismissed Early\u2019s just cause claim for lack of subject matter jurisdiction on the ground that Early lacked sufficient months of service to assert a claim for just cause and (2) concluded that Early had failed to meet her burden of proving intentional discrimination based on gender, age, or handicapping condition. She, therefore, recommended that DSS\u2019 decision to discharge Early from employment be affirmed.\nOn 4 February 2002, the State Personnel Commission issued an \u201cAmended Recommendation for Decision to Local Appointing Authority.\u201d The Commission adopted the AU\u2019s 73 findings of fact in their entirety with the addition of one sentence relating to Early\u2019s just cause claim: \u201cHowever, there is no statutory requirement in Chapter 126 that County employees subject to the provision of Chapter 126 work a certain amount of time before becoming entitled to appeal a termination under Chapter 126.\u201d\nBased on the findings, the Commission reached the same conclusion as the AU that Early had failed to prove discrimination based on gender, age, or handicapping condition. With respect to the just cause claim, however, the Commission concluded:\nPetitioner was entitled to bring a just cause claim. Based on Petitioner\u2019s supervisor\u2019s statement to her \u201cno problem\u201d when she discussed having the surgery with her on October 17, 2000, it is clear that Petitioner reasonably expected to be able to take sufficient leave to complete the recuperation process from the surgery. Respondent did not have just cause to terminate her employment for failing to return to work on December 13, 2000.\nThe Commission, therefore, recommended that DSS adopt the AU\u2019s decision regarding Early\u2019s claims of discrimination, but that DSS conclude \u201cthat there is jurisdiction for Petitioner\u2019s just cause claim and that Respondent\u2019s disciplinary action with regard to the Petitioner\u2019s employment be reversed for lack of just cause . . . .\u201d\nThe Commission further recommended that DSS reinstate Early to her former position or a comparable position with back pay and back benefits. In the event that DSS did reinstate Early, the Commission ordered that Early could petition for attorneys\u2019 fees, \u201cwhich shall be awarded in any amount to be determined by the Commission upon receipt and consideration of a Petition for Attorneys Fees and the required documentation.\u201d\nOn 18 April 2002, DSS issued its opinion, signed by Hudgins, stating that \u201c[t]he Respondent does not adopt the entire recommendation of the Office of State Personnel. . . .\u201d DSS specifically rejected only one sentence in the Commission\u2019s 73 findings of fact: the sentence that the Commission had added to the ALJ\u2019s findings of fact, stating that there was no months-of-service prerequisite to appealing a termination under the State Personnel Act. DSS concluded that OAH lacked subject matter jurisdiction to hear Early\u2019s just cause claim, but that, even if jurisdiction existed, DSS had just cause to terminate Early. In support of its decision, DSS stated that it was relying' upon five specified findings of fact of the AU, which it then set forth. DSS did not mention the remaining findings of fact of the AU and the State Personnel Commission. DSS made a \u201cfinal decision\u201d that:\nThe Petitioner failed to meet her burden with regards to the following:\n(i) that the Respondent discriminated against her;\n(ii) that the Court had jurisdiction to consider her dismissal for just cause;\n(iii) that Respondent lacked just cause for her dismissal.\nDSS, therefore, affirmed the decision to discharge Early from employment.\nOn 29 May 2002, Early filed a petition for judicial review in Wake County Superior Court. On 11 July 2002, Judge Evelyn Werth Hill filed an order, concluding that the reasons given by DSS for not adopting the entire recommendation of the Commission were without merit; that Early\u2019s discharge was not supported by substantial evidence; that her discharge was arbitrary, capricious, and an abuse of discretion; that DSS did not have just cause to terminate Early\u2019s employment; and that OAH had subject matter jurisdiction to hear Early\u2019s just cause claim. Judge Hill ordered DSS to reinstate Early into her former position or a comparable position and awarded her back pay and benefits and attorneys\u2019 fees. DSS appeals to this Court.\nSubject Matter Jurisdiction\nOn appeal, DSS contends that the trial court and this Court lack subject matter jurisdiction for two reasons: (1) Early was not entitled to file a contested case based on a lack of just cause, and (2) Early did not timely file her contested case. We disagree as to each contention.\nA. Local Government Employees and Just Cause\nThe State Personnel Act (\u201cthe SPA\u201d), Chapter 126 of the North Carolina General Statutes, describes in detail the procedures that state and certain local government employees may use to appeal personnel decisions. N.C. Gen. Stat. \u00a7 126-5 (2003) specifies the employees to whom the SPA applies:\n(a) The provisions of this Chapter shall apply to:\n(1) All State employees not herein exempt, and\n(2) All employees of the following local entities:\na. Area mental health, developmental disabilities, and substance abuse authorities.\nb. Local social services departments.\nc. County health departments and district health departments.\nd. Local emergency management agencies that receive federal grant-in-aid funds.\n(Emphasis added.)\nEarly, being an employee of DSS, a local social services department, falls under \u00a7 126-5(a)(2)(b) and, therefore, \u201c[t]he provisions of\u2019 the SPA \u2014 Chapter 126 \u2014 apply to her. DSS contends nonetheless that those provisions of the SPA that allow an employee to file a contested case alleging that his or her termination of employment lacked just cause should not apply to Early. Specifically, N.C. Gen. Stat. \u00a7 126-34.1 (2003) provides:\n(a) A State employee or former State employee may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes only as to the following personnel actions or issues:\n(1) Dismissal, demotion, or suspension without pay based upon an alleged violation of G.S. 126-35, if the employee is a career State employee.\nN.C. Gen. Stat. \u00a7 126-35(a) in turn provides: \u201cNo career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.\u201d\nDSS does not dispute that N.C. Gen. Stat. \u00a7 126-35(a) applies to the local employees specified in N.C. Gen. Stat. \u00a7 126-5(a)(2) even though \u00a7 126-35(a) refers only to State employees or former State employees. It argues, however, that in order for \u00a7 126-34.1(a)(l) to apply to a local employee, that employee must meet the same months-of-service requirement that any state employee must meet in order to become a \u201ccareer State employee.\u201d The SPA defines a \u201ccareer State employee\u201d as \u201ca State employee who: (1) [i]s in a permanent position appointment; and (2) [h]as been continuously employed by the State of North Carolina in a position subject to the State Personnel Act for the immediate 24 preceding months.\u201d N.C. Gen. Stat. \u00a7 126-1.1 (2003). DSS argues that since plaintiff has worked for DSS for less than 24 months, she is not entitled to the benefit of N.C. Gen. Stat. \u00a7\u00a7 126-34.1(a) and 126-35.\nDSS\u2019 argument, however, overlooks N.C. Gen. Stat. \u00a7 126-5\u2019s provisions regarding the scope of the SPA\u2019s coverage. As indicated above, with respect to State employees, \u00a7 126-5(a)(l) specifies that the provisions of Chapter 126 apply to \u201c[a]ll State employees not herein exempt.\u201d N.C. Gen. Stat. \u00a7\u00a7 126-5(c), (cl), (c2), (c3), (c7), and (c8) then specifically exempt certain categories of State employees from coverage under various portions of the SPA. In other words, \u00a7 126-5 specifies certain classes of State employees and identifies what portions of the SPA, if any, apply with respect to each class. N.C. Gen. Stat. \u00a7 126-5(c)(l) specifically exempts \u201c[a] State employee who is not a career State employee as defined by this Chapter\u201d from the SPA, with the exception of \u201cthe policies, rules, and plans\u201d established by the State Personnel Commission pursuant to N.C. Gen. Stat. \u00a7\u00a7 126-4(l)-(6) (2003) and 126-7 (2003) and with the exception of \u201cthe provisions of Articles 6 and 7 of this Chapter,\u201d relating to equal opportunity for employment and compensation and the privacy of state employee personnel records. N.C. Gen. Stat. \u00a7 126-35, the just cause provision, falls within Article 8 \u2014 an Article not included within the list of those portions of the SPA applicable to non-career State employees.\nBy contrast, N.C. Gen. Stat. \u00a7 126-5(a)(2) asserts that the provisions of the SPA \u201cshall apply to . . . (2) All employees of the following local entities,\u201d including local social services departments. It does not include any qualification of the \u201c[a]ll employees\u201d language comparable to the \u201cnot herein exempt\u201d limiting language used for State employees. Further, none of the exemptions set out in N.C. Gen. Stat. \u00a7 126-5 refer to any local government employees. We are, therefore, left with the statute\u2019s specification that \u201c[t]he provisions of this Chapter [126] shall apply to . . . [a]ll employees of the following local entities\u201d without any express limitation. The language of \u00a7 126-5(a)(2) is straightforward in subjecting all employees of certain types of local entities to the provisions of the SPA. The language of the statute, moreover, does not suggest that these local employees are state employees, but only that the .provisions of the SPA apply to them as well as to state employees.\nDSS appears to be arguing that this Court should craft what amounts to a new sub-categorization of local government employees included in N.C. Gen. Stat. \u00a7 126-5(a)(2)\u2019s list based on the categorization of State employees in N.C. Gen. Stat. \u00a7 126-1.1. According to DSS\u2019 proposal, the class of local employees in N.C. Gen. Stat. \u00a7 126-5(a)(2) would be subdivided into \u201ccareer local employees\u201d and \u201cnon-career local employees,\u201d in the same way that State employees are categorized. The selection by the General Assembly of 24 months as the necessary length of service to be a career employee required the weighing of policy considerations involving State government needs and State employee interests. We have identified no expression of intent by the General Assembly to differentiate among local government employees in the same manner that it chose to differentiate among State employees. Nor may this Court engage in pol-icymaking, as defendant requests, and, on our initiative, decide that it would be appropriate to superimpose this structure on local government employees.\nWe note that the Office of State Personnel, in its regulations, has not adopted such an approach. Instead, the applicable regulations divide local employees into the following categories: permanent, probationary, trainee, time-limited, temporary, pre-vocational student, or emergency employees. 25 N.C. Admin. Code 11.2002 (2005). The regulations then provide, with respect to local government employees, that \u201c[a]ny employee, regardless of occupation, position, or profession may be warned, demoted, suspended or dismissed by the appointing authority. Such actions may be taken against employees with permanent status, as defined in 25 NCAC 11.2002[c], only for just cause.\u201d 25 N.C. Admin. Code 11.2301(a) (2005). \u201cA permanent appointment is an appointment to a permanently established position when the incumbent is expected to be retained on a permanent basis.\u201d 25 N.C. Admin. Code 11.2002(c).\nIn short, under the Office of State Personnel regulations, the applicability of the just cause requirement to local government employees is determined by the permanency of employment and not by months of service. This Court has previously looked to these regulations for assistance in construing the SPA, including N.C. Gen. Stat. \u00a7 126-35. See, e.g., Steeves v. Scotland County Bd. of Health, 152 N.C. App. 400, 406-08, 567 S.E.2d 817, 821-22 (construing the phrase \u201cjust cause\u201d), disc. review denied, 356 N.C. 444, 573 S.E.2d 157 (2002); Fuqua v. Rockingham County Bd. of Soc. Servs., 125 N.C. App. 66, 71, 479 S.E.2d 273, 276 (1997) (discussing when warnings are not required prior to termination for cause).\nFurther, this Court has also held broadly: \u201cLocal government employees . . . are subject to the State Personnel Act. As such, they cannot be \u2018discharged, suspended, or demoted for disciplinary reasons, except for just cause.\u2019 G.S. \u00a7 126-35.\u201d Gray v. Orange County Health Dep\u2019t, 119 N.C. App. 62, 75, 457 S.E.2d 892, 901, disc. review denied, 341 N.C. 649, 462 S.E.2d 511 (1995). Despite repeated decisions applying N.C. Gen. Stat. \u00a7 126-35 to local government employees falling within N.C. Gen. Stat. \u00a7 126-5(a)(2), this Court has never suggested that a local government employee must have been employed for a particular period of time before N.C. Gen. Stat. \u00a7 126-35 becomes applicable. See, e.g., Leeks v. Cumberland County Mental Health, 154 N.C. App. 71, 76, 571 S.E.2d 684, 688 (2002); Steeves, 152 N.C. App. at 408, 567 S.E.2d at 822; Souther v. New River Area Mental Health, 142 N.C. App. 1, 5, 541 S.E.2d 750, 753, aff\u2019d per curiam, 354 N.C. 209, 552 S.E.2d 162 (2001).\nIn the absence of any indication of a contrary intent by the General Assembly and in light of the language of the statute, the applicable administrative regulations, and this Court\u2019s prior decisions, we are compelled to reject DSS\u2019 request that we apply the substance of N.C. Gen. Stat. \u00a7 126-1.1 to local government employees. Accordingly, we overrule DSS\u2019 first assignment of error, in which it contends that N.C. Gen. Stat. \u00a7 126-35 does not apply to this plaintiff.\nB. The Timeliness of Earlv\u2019s Contested Case Petition\nDSS also argues on appeal that the ALJ committed error in twice denying DSS\u2019 motion to dismiss Early\u2019s contested case petition as untimely. Under N.C. Gen. Stat. \u00a7 126-38 (2003), an employee must file her petition with the Office of Administrative Hearings \u201cno later than 30 days after receipt of notice of the decision or action which triggers the right of appeal.\u201d DSS did not, however, base its final decision on any untimeliness; nor did it argue this issue before the trial court.\nNevertheless, the timeliness issue is properly before us because it goes to the question of our subject matter jurisdiction. See Nailing v. UNC-CH, 117 N.C. App. 318, 324-25, 451 S.E.2d 351, 355 (1994) (holding that a failure to comply with the 30-day deadline set out in N.C. Gen. Stat. \u00a7 126-38 deprives OAH, and thus this Court, of subject matter jurisdiction), disc. review denied, 339 N.C. 614, 454 S.E.2d 255 (1995). \u201cThe question of subject matter jurisdiction may be raised at any time.\u201d Lemmerman v. A. T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85-86 (1986).\nDSS argues that Early received Director Hudgins\u2019 letter dated 4 January 2001 on 8 January 2001 and, therefore, was required to file her contested case by 8 February 2001. Early actually filed her contested case petition with OAH on 19 February 2001. Thus, DSS argues, she filed 11 days late, and OAH did not have subject matter jurisdiction to hear her contested case.\nDSS was, however, required to comply with N.C. Gen. Stat. \u00a7 150B-23(f) when notifying Early of its final decision. That provision of the Administrative Procedure Act specifies that the time limitation for filing a contested case does not begin to run until notice is given of the final decision. It specifies that \u201c[t]he notice shall be in writing, and shall set forth the agency action, and shall inform the persons of the right, the procedure, and the time limit to file a contested case petition.\u201d Id. If the employer does not comply with the requirements for notice set out in N.C. Gen. Stat. \u00a7 150B-23(f), then a motion to dismiss a contested case petition as untimely is properly denied. Jordan v. N.C. Dep\u2019t of Transp., 140 N.C. App. 771, 774, 538 S.E.2d 623, 625 (2000) (\u201cThe 30-day limitation period of N.C. Gen. Stat. \u00a7 126-38 does not begin to run until notice is provided in accordance with these requirements [of N.C. Gen. Stat. \u00a7 150B-23(f)].\u201d), disc. review denied, 353 N.C. 376, 547 S.E.2d 412 (2001).\nThe 4 January 2001 letter does not meet the requirements of N.C. Gen. Stat. \u00a7 150B-23(f). First, it did not set forth the agency action. It simply recited as \u201caccurate and relevant to the present situation\u201d general information regarding leave policies provided to Early, the fact that she was \u201cexpected to return to work full time no later than December 13, 2000\u201d with no work restrictions, and the factors considered in determining that LWOP could be granted through 13 December 2000. Nothing in the letter explicitly stated an outcome regarding Early\u2019s appeal of her termination or even mentioned that Early was terminated. The letter closed with:\nI sincerely hope that you will experience a full recovery from your medical condition and will be able to resume your activities soon. For your information, I am enclosing another copy of the two documents referenced in #1 and #2 above [regarding LWOP policies].\nIn short, the letter simply reiterated facts that Hudgins believed pertinent without reaching any conclusions and expressed sympathy for plaintiffs medical condition. The letter did not finally resolve the grievance by stating that Early\u2019s dismissal was being upheld, but rather could be read as leaving open the possibility for further negotiation. This vagueness, while perhaps an understandable human response in delivering the bad news of a harsh result, cannot be reconciled with the requirements of N.C. Gen. Stat. \u00a7 150B-23(f).\nAs the Fourth Circuit held in construing N.C. Gen. Stat. \u00a7 150B-230Q:\nTo satisfy these requirements, the written notice must communicate that the agency has acted and that this action is one that triggers the right to file ... a contested case petition. . . . Unless the [agency does] this, [petitioners,] who will often have already engaged in lengthy negotiations with the [agency], will likely (and understandably) conclude that [the agency] is simply stating its present bargaining posture, which is open to further negotiation and does not trigger any limitations period.\nCM v. Bd. of Educ. of Henderson County, 241 F.3d 374, 386 (4th Cir.), cert. denied, 534 U.S. 818, 151 L. Ed. 2d 18, 122 S. Ct. 48 (2001). A petitioner \u201ccannot be expected to divine that such correspondence communicates conclusive agency action, . . . which triggers a short limitations period to pursue such a challenge.\u201d Id. We agree and accordingly hold that the 4 January 2001 letter did not constitute sufficient \u201cnotice of the decision or action which triggers the right of appeal\u201d for purposes of N.C. Gen. Stat. \u00a7 126-38.\nFurther, that letter did not inform Early \u201cof the right, the procedure, and the time limit to file a contested case petition.\u201d While DSS contends that it provided this information in its first 13 December 2000 letter, N.C. Gen. Stat. \u00a7 150B-23(f) requires that it be contained in the decision triggering the running of the 30-day time limit. If we were to adopt DSS\u2019 position, we would, in effect, be holding that an employer need only notify an employee at some point during her employment of her appeal rights in order to comply with N.C. Gen. Stat. \u00a7 150B-23(f). That is not, however, what the statute provides.\nIn any event, the material attached to the 13 December 2000 letter stated only that \u201c[i]f the results are not satisfactory [after the internal grievance procedure], the employee may then appeal to the State Personnel Commission within 30 days.\u201d While this statement provided notice of the right to further review and the time limit, it cannot be considered by any stretch to be notification of \u201cthe procedure\u201d to file a contested case petition. Compare Gray v. N.C. Dep\u2019t of Env\u2019t, Health & Natural Res., 149 N.C. App. 374, 379, 560 S.E.2d 394, 398 (2002) (holding that agency did not comply with \u00a7 150B-23(f) when it specified that the petitioner had 30 days to file a contested case petition with OAH pursuant to N.C. Gen. Stat. \u00a7 130A-24, but gave an incorrect address for OAH).\nIn sum, DSS failed to provide Early with the notice required under N.C. Gen. Stat. \u00a7 150B-23(f). Accordingly, the ALJ properly denied DSS\u2019 motion to dismiss. Both OAH and this Court have subject matter jurisdiction over Early\u2019s claims.\nJust Cause\nA. Standard of Review\nDSS asks us to examine two conclusions reached by the trial court: (1) that DSS did not have just cause to terminate plaintiff\u2019s employment and (2) that plaintiff was entitled to back pay and attorneys\u2019 fees. N.C. Gen. Stat. \u00a7 126-37(bl) (2003) provides:\nIn appeals involving local government employees subject to [the SPA],... the decision of the State Personnel Commission shall be advisory to the local appointing authority. . : . The local appointing authority shall, within 90 days of receipt of the advisory decision of the State Personnel Commission, issue a written, final decision either accepting, rejecting, or modifying the decision of the State Personnel Commission. If the local appointing authority rejects or modifies the advisory decision, the local appointing authority must state the specific reasons why it did not adopt the advisory decision.\nThe local appointing authority\u2019s final decision is then \u201csubject to judicial review pursuant to Article 4 of Chapter 150B of the General Statutes.\u201d N.C. Gen. Stat. \u00a7 126-37(b2) (2003).\nArticle 4 of Chapter 150B is entitled \u201cJudicial Review\u201d and N.C. Gen. Stat. \u00a7 150B-51 (2003), within that Article, sets forth the \u201c[s]cope and standard of review\u201d:\n(a) In reviewing a final decision in a contested case in which an administrative law judge made a recommended decision and the State Personnel Commission made an advisory decision in accordance with G.S. 126-37(bl), the court shall make two initial determinations. First, the court shall determine whether the applicable appointing authority heard new evidence after receiving the recommended decision. . . . Second, if the applicable appointing authority did not adopt the recommended decision, the court shall determine whether the applicable appointing authority\u2019s decision states the specific reasons why the applicable appointing authority did not adopt the recommended decision.. . .\n(b) ... [I]n reviewing a final decision, the court may affirm the decision of the agency or remand the case to the agency or to the administrative law judge for further proceedings. It may also 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 admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or\n(6) Arbitrary, capricious, or an abuse of discretion.\nAs our Supreme Court recently observed, \u201c[w]hen the trial court exercises judicial review over an agency\u2019s final decision, it acts in the capacity of an appellate court.\u201d N.C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 662, 599 S.E.2d 888, 896 (2004).\nThe trial court below correctly first addressed the inquiries in N.C. Gen. Stat. \u00a7 150B-51(a). The court found and the record reflects that DSS did not hear any new evidence in reaching its final decision. Likewise, we agree with the trial court that DSS\u2019 final decision states the specific reasons why it did not adopt the State Personnel Commission\u2019s recommended decision.\nWith respect to the grounds for reversal or modification in N.C. Gen. Stat. \u00a7 150B-51(b), Carroll observes that subsections (b)(l)-(4) involve \u201c \u2018law-based\u2019 inquiries,\u201d whereas the grounds listed in subsections (b)(5) and (6) involve \u201c \u2018fact-based\u2019 inquiries.\u201d Carroll, 358 N.C. at 659, 599 S.E.2d at 894 (quoting Charles E. Daye, Powers of Administrative Law Judges, Agencies, and Courts: An Analytical and Empirical Assessment, 79 N.C. L. Rev. 1571, 1592 n.79 (2001)). As such, appellate inquiries under N.C. Gen. Stat. \u00a7 150B-51(b)(l)-(4) receive de novo review and inquiries under N.C. Gen. Stat. \u00a7 150B-51 (b)(5) and (6) receive review under the \u201cwhole record test.\u201d Id. at 659-60, 599 S.E.2d at 895.\nCarroll explains each of these separate standards of review in greater detail:\nUnder the de novo standard of review, the trial court considers the matter anew and freely substitutes its own judgment for the agency\u2019s. When the trial court applies the whole record test, however, it may not substitute its judgment for the agency\u2019s as between two conflicting views, even though it could reasonably have reached a different result had it reviewed the matter de novo. Rather, a court must examine all the record evidence \u2014 -that which detracts from the agency\u2019s findings and conclusions as well as that which tends to support them\u2014 to determine whether there is substantial evidence to justify the agency\u2019s decision. Substantial evidence is relevant evidence a reasonable mind might accept as adequate to support a conclusion.\nId. at 660, 599 S.E.2d at 895 (internal citations and quotation marks omitted).\nB. The Just Cause Determination\nIn arguing that the trial court erred in concluding that it lacked just cause to terminate Early, DSS first contends that the trial court applied the wrong standard of review. Specifically, DSS contends that Judge Hill erred by addressing both de novo review and the whole record test. Carroll, however, confirms that such a dual standard of review is appropriate when considering the question whether an employee was fired for just cause.\nOur Supreme Court held in Carroll that \u201c[determining whether a public employer had just cause to discipline its employee requires two separate inquiries: first, whether the employee engaged in the conduct the employer alleges, and second, whether that conduct constitutes just cause for [the disciplinary action taken.]\u201d 358 N.C. at 665, 599 S.E.2d at 898 (internal quotation marks omitted). The first half of the inquiry, Carroll instructs us, is a question of fact to be examined under the whole record test. Id. at 665-66, 599 S.E.2d at 898. The second half, by contrast, is a question of law to be examined de novo. Id. The trial court, therefore, was correct to apply both tests.\nEven if the trial court\u2019s order could be viewed as not applying Carroll\u2019s precise analysis, reversal is not necessarily required or appropriate. Id. at 665, 599 S.E.2d at 898. According to Carroll, the task for this Court is simply to \u201c \u2018address[] the dispositive issue(s) before the agency and the superior court\u2019 and determin[e] how the trial court should have decided the case upon application of the appropriate standards of review.\u201d Id. at 664-65, 599 S.E.2d at 898 (quoting Capital Outdoor, Inc. v. Guilford County Bd. of Adjustment, 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene, J., dissenting), adopted per curiam by 355 N.C. 269, 559 S.E.2d 547 (2002)). We need not remand for reconsideration if we can \u201creasonably determine from the record whether the petitioner\u2019s asserted grounds for challenging the agency\u2019s final decision warrant reversal or modification of that decision under the applicable provisions of N.C.G.S. \u00a7 150B-51(b).\u201d Id. at 665, 599 S.E.2d at 898.\nDSS next argues that the trial court should not have rendered a decision on the issue whether Early was terminated for just cause because the ALJ dismissed the claim rather than addressing it on the merits. DSS requests: \u201c[I]f this Court concludes that there is jurisdiction to hear this case, this matter should be remanded back to the OAH for the receipt of evidence and the preparation of findings of fact[], conclusions of law and a recommended decision on the issue of whether there was just cause to terminate the Petitioner.\u201d\nContrary to DSS\u2019 contention, the trial court not only appropriately considered the issue of just cause; it was, in fact, required to do so. The decision being reviewed by the trial court was not the ALJ\u2019s decision, but rather DSS\u2019 final decision. DSS specifically decided that \u201ceven if the Office of Administrative Hearings had subject matter jurisdiction to hear Petitioner\u2019s just cause claim, there was just cause to terminate Petitioner.\u201d DSS then recited the five findings of fact of the State Personnel Commission upon which it relied in support of this conclusion. In a section of the decision entitled \u201cFinal Decision,\u201d DSS stated \u201c[t]he Petitioner failed to meet her burden with regards to the following: . . . (iii) that Respondent lacked just cause for her dismissal.\u201d Since Early specifically challenged this determination in its petition for judicial review, the issue was squarely before the trial court.\nFurther, there is no need to remand for a new evidentiary hearing, additional findings of fact and conclusions of law, or a recommended decision. DSS does not argue that it was in any way prevented from fully litigating the issue of just cause before the ALJ and does not explain why additional evidence is necessary. Moreover, the State Personnel Commission disagreed with the AU on the jurisdictional question and, therefore, actually made findings of fact and conclusions of law regarding just cause. It then submitted an advisory opinion to DSS on that issue. The State Personnel Commission was not, of course, bound by the ALJ\u2019s findings or conclusions:\n\u201cIt is well established that an agency has the ability to reject the recommended decision of an administrative law judge. . . . Even though the administrative law judge ha[s] already made findings of fact and conclusions of law, the Personnel Commission ha[s] the ability to make its own findings of fact and conclusions of law if it cho[oses] to do so.\u201d\nEury v. N.C. Employment Sec. Comm\u2019n, 115 N.C. App. 590, 597, 446 S.E.2d 383, 388 (quoting Davis v. N.C. Dep\u2019t of Human Res., 110 N.C. App. 730, 737, 432 S.E.2d 132, 136 (1993)), appeal dismissed and disc. review denied, 338 N.C. 309, 451 S.E.2d 635 (1994). Here, the State Personnel Commission adopted the AU\u2019s findings of fact and reiterated them as its own, but then concluded that those facts did not establish just cause \u2014 an issue that was a question of law, as Carroll indicates. The trial court then agreed with the State Personnel Commission\u2019s analysis.\nAs Early points out, nowhere in its brief on appeal does DSS present any argument that the trial court erred in deciding as a matter of law that the conduct set forth in the State Personnel Commission\u2019s findings of fact did not amount to just cause or that those findings of fact \u2014 which have not been specifically rejected by DSS at any time \u2014 were incorrect. Further, DSS does not attempt to defend its own determination regarding whether just cause existed by explaining to the Court why the findings of fact upon which it relied were sufficient to establish just cause. While DSS contended in oral argument that it had just cause, we are precluded from addressing this issue since its brief contained no such argument. See N.C.R. App. P. 28(a) (\u201cReview is limited to questions so presented in the several briefs. Questions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party\u2019s brief, are deemed abandoned.\u201d).\nDSS does, in requesting a remand to OAH, state generally in its brief that \u201c[t]here was conflicting evidence on the issue of just cause.\u201d DSS, however, had the opportunity in its final decision to resolve any conflict in the evidence by rejecting the State Personnel Commission\u2019s findings of fact and making its own findings based on the record. It chose not to do so and instead relied, in support of its determination that Early\u2019s dismissal was supported by just cause, on only five findings of fact of the State Personnel Commission. Four of those findings relate only to the fact that Early was notified that she was fired and that her termination was then upheld through the appeal process, while the fifth relates to a meeting that occurred within DSS one to two weeks after Early\u2019s surgery and does not address (1) what DSS told Early, (2) whether Early reasonably believed that her request for leave had been granted, or (3) DSS\u2019 acknowledgment before OAH that the leave had originally been granted through 17 January 2001.\nDSS does not make any argument on appeal that these findings of fact establish just cause. DSS\u2019 brief, in fact, cites no authority suggesting that it had just cause to terminate Early or that it should be given an opportunity to supplement its existing findings of fact. Under Rule 28(b)(6) of the Rules of Appellate Procedure, \u201c[assignments of error... in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d\nWhile it might be tempting to address the question whether DSS had just cause to terminate Early, our Supreme Court has recently held: \u201cIt is not the role of the appellate courts, however, to create an appeal for an appellant. As this case illustrates, the Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.\u201d Viar v. N.C. Dep\u2019t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (per curiam). We, therefore, uphold the trial court\u2019s reversal of DSS\u2019 decision that it possessed just cause to terminate Early.\nC. Back Pav and Attorneys\u2019 Fees\nDSS\u2019 final assignment of error pertains to the trial court\u2019s award of back pay and attorneys\u2019 fees. In addition to reiterating its contention that a local government employee is not entitled to challenge her termination based on a lack of just cause, an argument rejected above, DSS also contends \u201cthat it was never the intention of the legislature to award back pay and attorney\u2019s fees to local DSS employees.\u201d DSS further argues: \u201c[The] AU and the [State Personnel] Commission render advisory opinions. Neither they, nor Superior Court Judges have the authority to award back pay and attorney fees to local government employees pursuant to N.C.G.S. Chapter 126 or the North Carolina Administrative Code.\u201d\nAs DSS notes, any decision by the State Personnel Commission regarding back pay and attorneys\u2019 fees was advisory with respect to DSS. The trial court was required to review DSS\u2019 decision to reject that recommendation under N.C. Gen. Stat. \u00a7 150B-51. While DSS presents arguments regarding the Commission\u2019s lack of authority to require a \u201clocal appointing authority\u201d to pay back pay or attorneys\u2019 fees, it does not cite any authority for its contention that the \u201cthe state cannot order when the County should compensate an employee for back pay and/or attorney fees.\u201d To the contrary, our courts have long held that \u201ccounties [] make up the state and are, literally, the state itself. . . . Simply stated, \u2018[c]ounties are creatures of the General Assembly and constituent parts of the State government.\u2019 \u201d Archer v. Rockingham County, 144 N.C. App. 550, 553, 548 S.E.2d 788, 790 (2001) (quoting Harris v. Bd. of Comm\u2019rs, 274 N.C. 343, 346, 163 S.E.2d 387, 390 (1968)), disc. review denied, 355 N.C. 210, 559 S.E.2d 796 (2002). The General Assembly may, therefore, decide when a county may be sued and when it may be required to pay back pay and attorneys\u2019 fees.\nWith respect to back pay, N.C. Gen. Stat. \u00a7 126-37 provides the best indication whether the General Assembly intended for employees of \u201clocal appointing authorities]\u201d to be treated like State employees and be able to seek back pay upon prevailing in a claim under the SPA. Subsection (c) of that statute states:\nIf the local appointing authority is other than a board of county commissioners, the local appointing authority must give the county notice of the appeal taken pursuant to subsection (a) of this section. Notice must be given to the county manager or the chairman of the board of county commissioners by certified mail within 15 days of the receipt of the notice of appeal. The county may intervene in the appeal within 30 days of receipt of the notice. If the action is appealed to superior court the county may intervene in the superior court proceeding even if it has not intervened in the administrative proceeding. The decision of the superior court shall be binding on the county even if the county does not intervene.\nN.C. Gen. Stat. \u00a7 126-37(c) (emphasis added). A major reason that a county would need to be informed and to have the opportunity to intervene is if a monetary award could be entered that would be paid from the county\u2019s coffers. There would also be little need for the provision making the superior court\u2019s decision binding on the county in the absence of the possibility of a monetary award.\nIndeed, this Court has held that a county is an aggrieved party under the Administrative Procedure Act for purposes of appealing to superior court an award of back wages and attorneys\u2019 fees. In re Appeal of Brunswick County, 81 N.C. App. 391, 396, 344 S.E.2d 584, 587 (1986). Similarly, in Lincoln County Dep\u2019t of Soc. Servs. v. Hovis, 150 N.C. App. 697, 701, 564 S.E.2d 619, 621-22 (2002), this Court affirmed an ALJ\u2019s award of back pay and attorneys\u2019 fees against a Department of Social Services as a sanction for failure to comply with procedural requirements under N.C. Gen. Stat. \u00a7 150B-36(c)(3).\nBecause DSS presents no other argument as to why local government employees found to have been wrongfully discharged should not have the traditional back pay remedy available to them like other employees covered by the SPA, we hold that the trial court properly considered whether DSS\u2019 decision to reject the State Personnel Commission\u2019s recommendation of back pay should be reversed. See 25 N.C. Admin. Code 1B.0421 (2005) (discussing the State Personnel Commission\u2019s ability to award back pay and setting out a method for calculating it). Further, DSS has not offered any argument why, under the facts of this case, Early should not receive back pay. Accordingly, we affirm the trial court\u2019s determination that Early should receive back pay.\nWith respect to attorneys\u2019 fees, DSS\u2019 contention that the trial court had no authority to award attorneys\u2019 fees disregards N.C. Gen. Stat. \u00a7 6-19.1 (2003). That statute provides:\nIn any civil action . . . brought by a party who is contesting State action pursuant to G.S. 150B-43 or any other appropriate provisions of law, unless the prevailing party is the State, the court may, in its discretion, allow the prevailing party to recover reasonable attorney\u2019s fees, including attorney\u2019s fees applicable to the administrative review portion of the case, in contested cases arising under Article 3 of Chapter 150B, to be taxed as court costs against the appropriate agency if:\n(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and\n(2) The court finds that there are no special circumstances that would make the award of attorney\u2019s fees unjust.\nId. This Court held in McIntyre v. Forsyth County Dep\u2019t of Soc. Servs., 162 N.C. App. 94, 96-97, 589 S.E.2d 745, 747, disc. review denied, 358 N.C. 377, 598 S.E.2d 136 (2004), that this statute authorizes a superior court to award fees to the employee of a county Department of Social Services who has prevailed under the SPA. McIntyre, therefore, establishes the trial court\u2019s authority in this case to award attorneys\u2019 fees.\nAffirmed.\nJudges HUNTER and LEVINSON concur.\n. Early has not pursued her discrimination claims.\n. The fact that N.C. Gen. Stat. \u00a7 126-5 specifies that \u201c[t]he provisions of this Chapter shall apply to\u201d the specified local government employees does not suggest that N.C. Gen. Stat. 126-1.1, defining the phrase \u201ccareer State employee,\u201d applies to local government employees. The latter statute provides a definition of a specified phrase rather than substantive rights or procedures. This definition applies \u201cunless the context clearly indicates otherwise.\u201d The definition set out in N.C. Gen. Stat. \u00a7 126-1.1 cannot be readily imposed on local government employees since it requires not only \u201ca permanent position appointment,\u201d \u00a7 126-1.1(a), but also that the employee have been \u201ccontinuously employed by the State of North Carolina\u201d for a specified period of time, \u00a7 126-1.1(b). Id.\n. Significantly, DSS acknowledged in its brief that \u201cSubchapter I of the North Carolina Administrative Code rules apply to local government employees.\u201d\n. We observe that DSS applied the incorrect burden of proof in its final decision. In 2000, 2000 N.C. Sess. Laws ch. 190 \u00a7 13, the General Assembly amended N.C. Gen. Stat. \u00a7 126-35(d) to provide that the burden of showing that an employee was discharged, suspended, or demoted for just cause rests with the employer. N.C. Gen. Stat. \u00a7 126-35(d). This amendment was applied to all contested cases commenced on or after 1 January 2001. 2000 N.C. Sess. Laws ch. 190 \u00a7 14. Since Early\u2019s contested case was filed 19 February 2001, the amended N.C. Gen. Stat. \u00a7 126-35(d) applied and DSS bore the burden of proving just cause.\n. Although McIntyre indicated that fees were not available in SPA cases for services rendered prior to judicial review, id. at 97, 589 S.E.2d at 747, N.C. Gen. Stat. \u00a7 6-19.1 was amended to permit such an award with respect to contested cases filed on or after 1 January 2001. 2000 N.C. Sess. Laws ch. 190 \u00a7\u00a7 1, 14. The trial court in this case was, therefore, authorized to award fees for representation during the administrative proceedings.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Patrice Walker for petitioner-appellee.", "County Attorney S. C. Kitchen, by Deputy County Attorney Lowell L. Siler, for respondent-appellant." ], "corrections": "", "head_matter": "MARSHA A. EARLY, Petitioner v. COUNTY OF DURHAM DEPARTMENT OF SOCIAL SERVICES, Respondent\nNo. COA04-35\n(Filed 16 August 2005)\n1. Public Officers and Employees\u2014 dismissal \u2014 just cause requirement \u2014 permanent employee\nThe applicability of the just cause requirement for termination to local government employees is determined by the permanency of employment and not by months of service. The language of N.C.G.S. \u00a7 126-5(a)(2) is straightforward in subjecting all employees of certain types of local entities to the provisions of the SPA.\n2. Public Officers and Employees\u2014 termination \u2014 contested case petition \u2014 timeliness\nDSS\u2019s motion to dismiss a terminated employee\u2019s contested case petition as untimely was properly denied because DSS did not provide the employee with the notice required by N.C.G.S. \u00a7 150B-23(f). The letter sent by DSS simply reiterated facts without reaching any conclusions, expressed sympathy for plaintiffs medical condition, and could be read as leaving open the possibility of further negotiation.\n3. Public Officers and Employees\u2014 dismissal \u2014 judicial review \u2014 standards\nThe decision of the State Personnel Commission is advisory to the local appointing authority in appeals involving local government employees subject to the State Personnel Act. The local appointing authority\u2019s final decision is subject to judicial review, with the trial court acting in the capacity of an appellate court. The trial court here correctly first addressed the inquiries in N.C.G.S. \u00a7 150B-51(a); as to grounds for reversal under N.C.G.S. \u00a7 150B-51(b), some appellate inquiries receive de novo review and some are under the whole record test.\n4. Administrative Law\u2014 dismissed DSS employee \u2014 standard of review \u2014 remand not required\nThe standard of review for a dismissed DSS employee involved both the whole record test and de novo review. However, even if the trial court did not apply the precise analysis required, the case need not be remanded if it can be reasonably determined from the record whether the dismissed employee\u2019s asserted grounds for challenging the agency\u2019s final decision warranted reversal.\n5. Public Officers and Employees\u2014 dismissal of DSS employee \u2014 final decision a DSS responsibility \u2014 just cause not raised on appeal\nThe trial court\u2019s reversal of a DSS decision finding just cause to terminate an employee was upheld. Although DSS argued that the matter should be remanded because the Administrative Law Judge dismissed the just cause claim for lack of jurisdiction rather than addressing it on the merits, the final decision was for DSS rather than the AU. Moreover, DSS did not argue on appeal that just cause was established by the findings on which it relied.\n6. Public Officers and Employees\u2014 dismissed DSS employee\u2014 back pay\nN.C.G.S. \u00a7 126-37 indicates that the General Assembly intended that employees of local appointing authorities be treated as State employees and be able to seek back pay upon prevailing in a claim under the State Personnel Act. The trial court\u2019s determination that a dismissed DSS employee should receive back pay was affirmed.\n7. Costs\u2014 attorney fees \u2014 dismissed local employee \u2014 authority to award\nA superior court is authorized by N.C.G.S. \u00a7 6-19.1 to award attorney fees to an employee of a county Department of Social Services who has prevailed under the State Personnel Act.\nAppeal by respondent from order entered 11 July 2003 by Judge Evelyn Werth Hill in Wake County Superior Court. Heard in the Court of Appeals 15 September 2004.\nPatrice Walker for petitioner-appellee.\nCounty Attorney S. C. Kitchen, by Deputy County Attorney Lowell L. Siler, for respondent-appellant." }, "file_name": "0344-01", "first_page_order": 374, "last_page_order": 396 }