{ "id": 8320720, "name": "NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY, Petitioner-Appellee v. SHARON F. GREENE, Respondent-Appellant", "name_abbreviation": "North Carolina Department of Crime Control & Public Safety v. Greene", "decision_date": "2005-08-16", "docket_number": "No. COA04-1261", "first_page": "530", "last_page": "540", "citations": [ { "type": "official", "cite": "172 N.C. App. 530" } ], "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": "509 U.S. 502", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 355912 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "515" }, { "page": "422" }, { "page": "519" }, { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/us/509/0502-01" ] }, { "cite": "206 F.3d 420", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11454254 ], "year": 2000, "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/f3d/206/0420-01" ] }, { "cite": "517 U.S. 308", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11744659 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "312-13" }, { "page": "438-39" } ], "opinion_index": 0, "case_paths": [ "/us/517/0308-01" ] }, { "cite": "80 F.3d 954", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7641145 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "959-60" }, { "page": "959-60" } ], "opinion_index": 0, "case_paths": [ "/f3d/80/0954-01" ] }, { "cite": "450 U.S. 248", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184064 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "253" }, { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/us/450/0248-01" ] }, { "cite": "301 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "82-83" }, { "page": "83" } ], "opinion_index": 0 }, { "cite": "308 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707236 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "136-37" }, { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0131-01" ] }, { "cite": "530 U.S. 133", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413371 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "142", "parenthetical": "applying the McDonnell Douglas framework to an age discrimination case" }, { "page": "116", "parenthetical": "applying the McDonnell Douglas framework to an age discrimination case" }, { "page": "142" }, { "page": "116" }, { "page": "143" }, { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/us/530/0133-01" ] }, { "cite": "411 U.S. 792", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10002 ], "weight": 6, "year": 1973, "pin_cites": [ { "page": "802" }, { "page": "678" }, { "page": "804" }, { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/us/411/0792-01" ] }, { "cite": "579 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491520, 491684, 491750, 491596, 491725, 491760, 491635, 491479 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0062-01", "/nc/357/0062-03", "/nc/357/0062-04", "/nc/357/0062-08", "/nc/357/0062-06", "/nc/357/0062-02", "/nc/357/0062-07", "/nc/357/0062-05" ] }, { "cite": "575 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "155 N.C. 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McCULLOUGH and LEVINSON concur." ], "parties": [ "NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY, Petitioner-Appellee v. SHARON F. GREENE, Respondent-Appellant" ], "opinions": [ { "text": "McGEE, Judge.\nSharon F. Greene (respondent) appeals from the trial court\u2019s order reversing an order of the State Personnel Commission (the SPC) and affirming the action of the North Carolina Department of Crime Control and Public Safety (petitioner) in declining to promote respondent to a Personnel Analyst I position.\nA Personnel Analyst II employee resigned from employment with petitioner in October 2002. Weldon Freeman (Freeman), petitioner\u2019s Personnel Director, posted the job opening as a Personnel Analyst I position. Respondent applied for the Personnel Analyst I position on 25 October 2002. Respondent was forty-six years old, had more than twenty years of experience in State government personnel administration, and was employed by petitioner as a Personnel Technician III/EEO Officer. In this role, respondent supervised two employees, including Shawnda Brown (Brown). Respondent had hired Brown to work for petitioner one year previously.\nBrown also applied for the Personnel Analyst I position. Brown was thirty-nine years old, had obtained a B.A. from the University of South Florida, and had approximately six and a half years of experience in various personnel administration positions. A third person also applied for the position.\nEach applicant was interviewed by a panel of three. The panel consisted of Freeman, Human Resources Partner Jerry McRae (McRae), and Director of Personnel Hanna Gilliam (Gilliam). Each interview lasted between thirty and forty-five minutes and each applicant was asked the same twenty questions. Gilliam asked the first seven questions, McRae asked the next nine questions, and Freeman asked the last four questions. At the conclusion of each interview, the applicant completed a ten-minute writing exercise. The selection criteria was based fifty percent on the interview, twenty-five percent on the writing exercise, and twenty-five percent on the applicant\u2019s work history.\nFollowing each interview, the- panel discussed the applicants\u2019 responses and writing exercises and gave each applicant a numerical score. Respondent received a score of thirty-one, the third applicant received a score of thirty-two, and Brown received a score of thirty-nine. Freeman sent an email announcement on 7 November 2002 stating that Brown was selected for the Personnel Analyst I position.\nCrystal Goodman (Goodman), a Human Resources Associate, received Brown\u2019s Personnel Action Clearance package for processing. Goodman told McRae that she questioned the package because she did not believe that Brown was qualified for the Personnel Analyst I position. McRae reviewed Brown\u2019s application and determined that Brown should be given credit for two years of relevant experience based on her previous employment in the personnel department of Sam\u2019s Club. McRae\u2019s supervisor, Nellie Riley, and State Personnel Director Thom Wright signed off on McRae\u2019s decision.\nRespondent filed a Petition for a Contested Case Hearing with the Office of Administrative Hearings on 21 November 2002. Respondent alleged that petitioner discriminated against her on the basis of her age when it selected Brown, a younger applicant, over respondent for the Personnel Analyst I position. A hearing was held on 29 August 2003 before an Administrative Law Judge (AU). The AU found that petitioner did discriminate against respondent because of respondent\u2019s age. The AU ordered that petitioner instate respondent to the Personnel Analyst II position; adjust respondent\u2019s employment record to reflect respondent as being a Personnel Analyst II as of 29 October 2002; remit all back pay, raises and other benefits respondent would have received; and pay respondent\u2019s reasonable attorney\u2019s fees. The SPC adopted, in total, the AU\u2019s decision and remedies. Petitioner filed a Petition for Judicial Review of the administrative decision of the SPC on 12 December 2003 with the trial court. The trial court reversed the final decision of the SPC. The trial court also affirmed the action of petitioner in declining to promote respondent to the Personnel Analyst I position.\nWe note at the outset that since respondent has failed to present an argument in her brief in support of assignment of error number eight, we deem it abandoned. N.C.R. App. P. 28(b)(6).\nI.\nRespondent first contends that the trial court erred when it failed to limit its application of the whole record test in determining whether the decision of the. SPC was supported by substantial competent evidence in view of the entire record and had a rational basis in the record. Under North Carolina\u2019s Administrative Procedure Act, a trial court may reverse or modify a SPC decision\nif 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 [N.C. Gen. Stat. \u00a7] 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.\nN.C. Gen. Stat. \u00a7 150B-51(b) (2003). Our Supreme Court has directed that the first four grounds for reversal or modification are \u201claw-based\u201d inquiries that receive de novo review. N.C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 659, 599 S.E.2d 888, 894 (2004). The last two grounds are \u201cfact-based\u201d inquiries and are reviewed under the whole record test. Id.\nAt the trial court, petitioner argued that the ALJ\u2019s findings of fact, as adopted by the SPC, were not supported by substantial evidence. Therefore, the trial court was to apply the whole record test when it reviewed the SPC\u2019s decision. N.C. Gen. Stat. \u00a7 150B-51(b)(5); see also King v. N.C. Environmental Mgmt. Comm., 112 N.C. App. 813, 816, 436 S.E.2d 865, 868 (1993).\nApplication of the whole record test \u201crequires the examination of all competent evidence to determine if the administrative agency\u2019s decision is supported by substantial evidence.\u201d Rector v. N.C. Sheriffs\u2019 Educ. and Training Standards Comm., 103 N.C. App. 527, 532, 406 S.E.2d 613, 616 (1991). Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 503, 397 S.E.2d 350, 354 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). The whole record test requires that the trial court take all evidence into account, includ-' ing the evidence that both supports and contradicts the agency\u2019s findings'. Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 344, 342 S.E.2d 914, 919, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). When the agency\u2019s findings of fact are not supported by substantial evidence, the trial court may make its own findings of fact that may be \u201cat variance with those of the agency.\u201d Scroggs v. N.C. Justice Standards Comm., 101 N.C. App. 699, 702-03, 400 S.E.2d 742, 745 (1991). \u201cHowever, the \u2018whole record\u2019 test is not a tool of judicial intrusion\u201d and a court is \u201cnot permitted to replace the agency\u2019s judgment with [its] own, even though [it] might rationally justify reaching a different conclusion.\u201d Floyd v. N.C. Dept. of Commerce, 99 N.C. App. 125, 129, 392 S.E.2d 660, 662, disc. review denied, 327 N.C. 482, 397 S.E.2d 217 (1990).\nIn her first two assignments of error, respondent argues that the trial court misapplied the whole record test when it determined whether the SPC\u2019s findings of fact were supported by substantial competent evidence. Respondent contends that the trial court erred by independently weighing the evidence of record and thus exceeded its role of determining whether the SPC\u2019s findings had a rational basis in the record. However, we determine that due to a violation of our Rules of Appellate Procedure, we cannot review this assignment of error.\nThis Court\u2019s review is \u201climited by properly presented assignments of error and exceptions.\u201d N.C. Dept. of Correction v. Hodge, 99 N.C. App. 602, 609, 394 S.E.2d 285, 289 (1990). Under N.C.R. App. P. 10(c)(1), \u201c[a]n assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.\u201d (emphasis added). Failure to comply with the Rules of Appellate Procedure subject an appeal to dismissal, since \u201c [i]t is not the role of the appellate courts ... to create an appeal for an appellant.\u201d Viar v. N.C. Dep\u2019t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005).\nIn the case before us, respondent\u2019s assignments of error are extremely broadsided. None of the assignments of error are followed by citations to the record or transcript. More importantly, none of the assignments of error specify which findings respondent challenges. As a result, we are unable to determine which findings of fact respondent specifically contends evidence misapplication of the whole record test. We are thus unable to address respondent\u2019s first two assignments of error.\nSimilarly, in assignment of error number four, respondent argues that \u201c[t]he trial court erred when it substituted its judgment for the special expertise of the [SPC] in determining whether [Brown] was \u2018qualified\u2019 for the position.\u201d This assignment of error is also not followed by any citation to the record or transcript, nor does it indicate which finding or findings respondent challenges. Several of the AU\u2019s and the trial court\u2019s findings of fact discuss Brown\u2019s qualifications for the position. We cannot determine which findings of fact respondent challenges and therefore cannot review this assignment of error.\nIn assignments of error numbers three and seven, respondent specifically cites the AU\u2019s finding of fact number 25 and the trial court\u2019s finding of fact number 38. Therefore, we are able to conduct a meaningful review of assignments of error numbers three and seven.\nIn those two assignments of error, respondent contends that the trial court erred when it replaced the ALJ\u2019s finding of fact number 25. The finding of fact stated that Freeman and McRae were not credible when they testified about Brown\u2019s qualifications and previous personnel experience:\n25. Based on the undersigned\u2019s observations of [Freeman] and... McRae, neither witness was credible when questioned about [Brown\u2019s] qualifications and the evidence that her clerical experience in the Sam\u2019s Club and Fayetteville personnel departments did not approach the minimal qualification requirements for even the Personnel Analyst I position.\nOn review, the trial court made the following finding of fact:\n38. Given that the interview panel had approximately seventy (70) years of combined experience in personnel functions and were serving or had served in top level personnel management positions, [the trial court] finds that the ALJ\u2019s Finding of Fact No. 25 relating to the \u201ccredibility\u201d of . . . Freeman and . . . McRae is not supported by the record as a whole.\nWe agree that the trial court erred in finding that the AU\u2019s determination of the witnesses\u2019 credibility was not supported by the record. \u201cThe credibility of the witnesses and the resolution of conflicts in their testimony is for the [agency], not a reviewing court[.]\u201d In re Wilkins, 294 N.C. 528, 549, 242 S.E.2d 829, 841 (1978); see also White v. N.C. Bd. of Examiners of Practicing Psychologists, 97 N.C. App. 144, 154, 388 S.E.2d 148, 154, disc. review denied, 326 N.C. 601, 393 S.E.2d 891 (1990). On review of an agency\u2019s decision, atrial court \u201cis prohibited from replacing the Agency\u2019s findings of fact with its own judgment of how credible, or incredible, the testimony appears to [the trial court] to be, so long as substantial evidence of those findings exist in the whole record.\u201d Little v. Board of Dental Examiners, 64 N.C. App. 67, 69, 306 S.E.2d 534, 536 (1983).\nIn this case, although the trial court impermissibly replaced the ALJ\u2019s judgment of the credibility of Freeman and McRae with its own, we find that this error was not prejudicial. The ALJ\u2019s finding of incredibility concerned the issue of whether Brown was qualified for the position. The finding had no bearing on the ultimate issue in the case: whether respondent was the victim of age discrimination. We find that the error did not affect the outcome of the case and overrule this assignment of error.\nII.\nIn assignments of error numbers five and six, respondent contends that the trial court erred when it substituted its judgment for that of the SPC and concluded as a matter of law that respondent had failed to establish a prima facie case of age discrimination. The trial court concluded that respondent had failed to establish & prima facie case of age discrimination because the age difference between respondent and Brown was not \u201csubstantial.\u201d\nRespondent first argues that the trial court erred in making conclusions of law in conflict with the ALJ\u2019s conclusion of law number seven, as adopted by the SPC. The ALJ\u2019s conclusion of law number seven stated that respondent established a prima facie case of age discrimination \u201cby proving: [1] she applied for and was qualified for a vacant position, [2] she was rejected, [3] she was over 40 years of age, [4] after she was rejected the employer filled the position with a younger employee below 40 years of age.\u201d Respondent argues that petitioner did not except to this conclusion of law at the trial court, and therefore waived review of the issue. We disagree. In its petition for judicial review, petitioner specifically excepts to many of the ALJ\u2019s conclusions of law, as adopted by the SPC, that support the conclusion that respondent had established a prima facie case of age discrimination. Furthermore, petitioner drafted recommended conclusions of law, which state: \u201c[Respondent] did not establish a \u00a1prima facie] case. . . . [Respondent] has failed to meet her burden of proving that she was denied the promotion to Personnel Analyst I on account of her age.\u201d We find that petitioner properly excepted to the conclusion of law and we may review this issue on appeal.\nRespondent argues that the trial court erred in concluding as a matter of law that respondent had not established aprima facie case of age discrimination. We apply de novo review to a trial court\u2019s conclusions of law. Campbell v. N.C. Dep\u2019t of Transp., 155 N.C. App. 652, 660, 575 S.E.2d 54, 60, disc. review denied, 357 N.C. 62, 579 S.E.2d 386 (2003).\nThe United States Supreme Court has established a scheme by which employees may prove discrimination in employment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668 (1973); see also Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 142, 147 L. Ed. 2d 105, 116 (2000) (applying the McDonnell Douglas framework to an age discrimination case); and Dept. of Correction v. Gibson, 308 N.C. 131, 136-37, 301 S.E.2d 78, 82-83 (1983). Under this framework, an employee must first establish a prima facie case of discrimination. Reeves, 530 U.S. at 142, 147 L. Ed. 2d at 116. Once an employee establishes a prima facie case of discrimination, the burden shifts to the employer to prove a legitimate, non-discriminatory basis for the employer\u2019s action. McDonnell Douglas, 411 U.S. at 802, 36 L. Ed. 2d at 678. If the employer succeeds, the burden shifts back to the employee to show that the employer\u2019s reason for the action is a mere pretext for discrimination. Id. at 804, 36 L. Ed. 2d at 679. However, \u201c \u2018[t]he ultimate burden of persuading the trier of fact that the [employer] intentionally discriminated against the [employee] remains at all times with the [employee].\u2019 \u201d Reeves, 530 U.S. at 143, 147 L. Ed. 2d at 117 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 215 (1981)); see also Gibson, 308 N.C. at 138, 301 S.E.2d at 83.\nAn employee can establish aprima facie case of age discrimination when the employee shows that (1) the employee is a member of the protected class, or over forty years old; (2) the employee applied or sought to apply for an open position with the employer; (3) the employee was qualified for the position; and (4) the employee \u201cwas rejected for the position under circumstances giving rise to an inference of unlawful discrimination.\u201d Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959-60 (4th Cir. 1996). An inference of unlawful discrimination arises when an employee is replaced by a \u201csubstantially younger\u201d worker. O\u2019Connor v. Consol. Coin Caterers, 517 U.S. 308, 312-13, 134 L. Ed. 2d 433, 438-39 (1996); Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 430 (4th Cir. 2000).\nIn the case before us, the trial court found that respondent failed to establish a prima facie case of discrimination because she failed to show that she \u201cwas rejected for the position under circumstances giving rise to an inference of unlawful discrimination.\u201d Evans, 80 F.3d at 959-60. The trial court found that Brown was not \u201csubstantially younger\u201d than respondent, and as such, an inference of age discrimination did not arise.\nThis Court has not established a bright-line rule for determining whether an applicant who was selected is \u201csubstantially younger\u201d than an employee who was not selected. We need not decide this issue today because even if respondent did establish a prima facie case of discrimination, petitioner has established a legitimate, nondiscriminatory reason for its action, and respondent has not shown that this reason was a pretext for discrimination.\nThe evidence before the SPC showed that, based on the interview and writing sample scores, respondent ranked lowest out of all of the applicants. All three panel members ranked the applicants similarly, and two of the panel members testified that based on these rankings, they considered Brown to be the best applicant for the Personnel Analyst I position. Freeman gave the following testimony at the hearing before the ALJ:\nQ. Okay. After the \u2014 taking you back, once again, to the interview panel, in addition to the rankings \u2014 the numerical rankings, did the \u2014 did you have some discussion with . . . [Gilliam] and .. . [McRae] about who they thought would make the best employee in that particular position?\nA. I think we ah agreed afterwards that, again, based on the selections, the interview questions, that [Brown] answered the questions most appropriately, very clear and concise. And [respondent], you know, she kind of rambled and, you know, avoided answering some of the questions directly.\nIn addition, McRae gave the following testimony:\nQ. How did you rate the applicants for those positions? Do you recall?\nA. I recall that [Brown] was rated higher than the other two, and the reason for that, based on my personnel experience \u2014 professional personnel experience, is that she seemed to have a much broader and diverse personnel background, and in a personnel analyst position, that is, the beginning of a professional level of human resource work and what you\u2019re looking for or at least what I\u2019m looking for is people that are able to use good judgment and discretion in interpreting and applying policies.\nThis testimony and the applicants\u2019 scores establish that petitioner had a legitimate, nondiscriminatory reason for its action. Under the McDonnell Douglas framework, the burden then shifts back to respondent to prove that this reason was a pretext for discrimination. In order to prove that a reason for an employer\u2019s action is a pretext for discrimination, an employee must prove \u201cboth that the reason was false, and that discrimination was the real reason.\u201d St. Mary\u2019s Honor Center v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 422 (1993). \u201cIt is not enough, in other words, to disbelieve the employer; the factfinder must believe the [employee\u2019s] explanation of intentional discrimination.\u201d Id. at 519, 125 L. Ed. 2d at 424.\nWe find that respondent has not established that petitioner\u2019s reason for its action was false. There is no evidence in the record that the reason was false or that the real reason for petitioner\u2019s action was to discriminate against respondent based on respondent\u2019s age.\nSince respondent has failed to show that the trial court erred in its application of the whole record test and has failed to meet her burden of proving age discrimination, we affirm the trial court\u2019s order.\nAffirmed.\nJudges. McCULLOUGH and LEVINSON concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Counsel Isaac T. Avery, III, for the State.", "Alan McSurely for respondent-appellant." ], "corrections": "", "head_matter": "NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY, Petitioner-Appellee v. SHARON F. GREENE, Respondent-Appellant\nNo. COA04-1261\n(Filed 16 August 2005)\n1. Administrative Law \u2014 judicial review \u2014 whole record test\nThe whole record test was to be applied by the trial court where a petitioner contesting a State hiring decision argued that the Administrative Law Judge\u2019s findings were not supported by substantial evidence. The whole record test requires that the trial court take all evidence into account, including the evidence which supports and evidence which contradicts the agency\u2019s findings. If the agency\u2019s findings are not supported by substantial evidence, the court may make its own, but the whole record test is not a tool of judicial intrusion.\n2. Appeal and Error\u2014 assignments of error \u2014 too broadsided\nAn assignment of error involving application of the whole record test and the court\u2019s substitution of its own judgment could not be reviewed where respondent\u2019s assignments of error were too broadsided. None were followed by citations to the record or transcript, none specified which findings were being challenged, and the Court of Appeals could not determine the findings respondent was challenging.\n3. Administrative Law\u2014 judicial review \u2014 improper determination of credibility \u2014 no prejudice\nThe improper substitution of the trial court\u2019s judgment about credibility for that of the Administrative Law Judge was not prejudicial where the finding had no bearing on the ultimate issue of whether respondent suffered age discrimination in not receiving a promotion at a state agency.\n4. Appeal and Error\u2014 preservation of issues \u2014 Administrative Law Judge\u2019s conclusion\nA state agency (petitioner) preserved appellate review of an Administrative Law Judge\u2019s conclusion that respondent established a prima facie case of age discrimination where it specifically excepted to many of the ALJ\u2019s conclusions, and, furthermore, drafted recommended conclusions of law that respondent had not made a prima facie case.\n5. Employer and Employee\u2014 age discrimination \u2014 nondiscrimination reason for hiring \u2014 \u201csubstantially younger\u201d not defined\nA state agency (petitioner) established a legitimate, nondiscriminatory reason for not promoting an employee (respondent), and respondent did not show that this reason was a pretext for age discrimination. Although the trial court found that an inference of age discrimination did not arise because the successful applicant was not substantially younger than respondent, the issue of whether the selected applicant is substantially younger was not decided in this appeal.\nAppeal by respondent from order entered 2 July 2004 by Judge Robert H. Hobgood in Superior Court, Wake County. Heard in the Court of Appeals 7 June 2005.\nAttorney General Roy Cooper, by Special Counsel Isaac T. Avery, III, for the State.\nAlan McSurely for respondent-appellant." }, "file_name": "0530-01", "first_page_order": 560, "last_page_order": 570 }