{ "id": 8379413, "name": "DOROTHY DAVIS, Petitioner-Appellant v. THE MACON COUNTY BOARD OF EDUCATION, Respondent-Appellee", "name_abbreviation": "Davis v. Macon County Board of Education", "decision_date": "2006-08-01", "docket_number": "No. COA05-1337s", "first_page": "646", "last_page": "659", "citations": [ { "type": "official", "cite": "178 N.C. App. 646" } ], "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": "615 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633276 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "413" }, { "page": "413" }, { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0408-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "525 S.E.2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "217" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241209 ], "year": 2000, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0618-01" ] }, { "cite": "459 S.E.2d 820", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "824" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 644", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916933 ], "year": 1995, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0644-01" ] }, { "cite": "593 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "769" }, { "page": "769" } ], "opinion_index": 0 }, { "cite": "358 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986024 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "199" }, { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0190-01" ] }, { "cite": "329 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724648, 4719920, 4726261, 4722874, 4721598 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0506-04", "/nc/313/0506-03", "/nc/313/0506-05", "/nc/313/0506-01", "/nc/313/0506-02" ] }, { "cite": "321 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1984, "pin_cites": [ { "page": "506" }, { "page": "506" }, { "page": "506" }, { "page": "506" }, { "page": "506-07" }, { "page": "506" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523740 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "52-53" }, { "page": "52" }, { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0048-01" ] }, { "cite": "365 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "708", "parenthetical": "quoting Abell v. Nash County Bd. of Education, 71 N.C. App. 48, 52-53, 321 S.E.2d 502, 506 (1984), disc. review denied, 313 N.C. 506, 329 S.E.2d 389 (1985)" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521375 ], "year": 1988, "pin_cites": [ { "page": "265", "parenthetical": "quoting Abell v. Nash County Bd. of Education, 71 N.C. App. 48, 52-53, 321 S.E.2d 502, 506 (1984), disc. review denied, 313 N.C. 506, 329 S.E.2d 389 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0262-01" ] }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 2004, "pin_cites": [ { "page": "893" }, { "page": "890" }, { "page": "894" }, { "page": "901" }, { "page": "902" } ], "opinion_index": 0 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "337 S.E.2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714861, 4717589, 4718136, 4718201, 4717178 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0183-03", "/nc/315/0183-05", "/nc/315/0183-02", "/nc/315/0183-04", "/nc/315/0183-01" ] }, { "cite": "334 S.E.2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527772 ], "year": 1985, "pin_cites": [ { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0649-01" ] }, { "cite": "231 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "292 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567415 ], "year": 1977, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0070-01" ] }, { "cite": "560 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "380" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 121", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125788 ], "year": 2002, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0121-01" ] }, { "cite": "511 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "341" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238269 ], "year": 1999, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0387-01" ] }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "17", "parenthetical": "quoting Sutton v. N.C. Dep't of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "year": 2002, "pin_cites": [ { "page": "13", "parenthetical": "quoting Sutton v. N.C. Dep't of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "559 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "781" } ], "opinion_index": 0 }, { "cite": "355 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220051 ], "year": 2002, "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0225-01" ] }, { "cite": "171 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8522542 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "270" }, { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0269-01" ] }, { "cite": "380 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "552" }, { "page": "552" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527544 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "543" }, { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0541-01" ] } ], "analysis": { "cardinality": 1053, "char_count": 30505, "ocr_confidence": 0.753, "pagerank": { "raw": 1.6048131488700922e-07, "percentile": 0.684469055917932 }, "sha256": "67f2350961c5e09dffade34b88c8f6c88ce715189535fcad45ce3651d2c1bfce", "simhash": "1:93eac8622587247e", "word_count": 4843 }, "last_updated": "2023-07-14T17:18:34.747306+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEELMAN concur." ], "parties": [ "DOROTHY DAVIS, Petitioner-Appellant v. THE MACON COUNTY BOARD OF EDUCATION, Respondent-Appellee" ], "opinions": [ { "text": "McGEE, Judge.\nThe Macon County Board of Education (the board) hired Dorothy Davis (petitioner) in August 2000 to teach high school English at Nantahala School. At the end of petitioner\u2019s fourth year of teaching, the principal of Nantahala School, Charles Baldwin (the principal), recommended to Superintendent of Macon County Schools Rodney Shotwell (the superintendent), that petitioner\u2019s contract not be renewed.\nThe superintendent conducted an investigation regarding the principal\u2019s recommendation not to renew petitioner\u2019s contract. The superintendent met with the principal and with petitioner, and reviewed notes provided by each of them. The record tends to show the following regarding the principal\u2019s recommendation that petitioner\u2019s contract not be renewed. In April 2003, at a Nantahala School festival, petitioner squirted the principal in the face with a water pistol and walked away. A student saw petitioner squirt the water pistol and stated: \u201cIf she can do it so can I.\u201d The student then squirted the principal in the face with a water pistol. This same student had squirted the principal with a water pistol the year before and had received a paddling. After the second incident during the April 2003 festival, the principal administered corporal punishment to the student in the presence of petitioner. The principal wrote in the Nantahala School discipline log that petitioner\u2019s actions \u201cdemeaned [him] in front of students, faculty and parents [,]\u201d and \u201cdegrade [d] [the] school\u2019s standing with . . . parents and community.\u201d\nThe record also shows that, during petitioner\u2019s fourth year of teaching at Nantahala School, she had requested to chaperone the junior/senior school trip. Petitioner\u2019s request was denied and she stated her \u201cfeelings were hurt that [she] was just ignored.\u201d According to the principal, petitioner admitted to him that she had complained to other teachers about having to cover classes for teachers who were chaperoning the trip. The principal told petitioner she was \u201cfostering a negative attitude in the faculty.\u201d The principal also told petitioner she had been given an opportunity to chaperone a school ski trip, but had failed to properly do so because she had driven her own vehicle rather than riding on the bus with the students. Petitioner stated: \u201cThis was probably wrong of me, but I have seen other chaperones do the same thing on other trips[.]\u201d Petitioner also said she asked the sponsoring teacher if she could drive her own vehicle and was told she could. The principal told petitioner she \u201cwas unprofessional because [she could] not ever admit [she] was wrong.\u201d The principal also told the superintendent that petitioner had raised her voice on several occasions during meetings with the principal.\nThe superintendent additionally reviewed two \u201cBelow Standard\u201d performance evaluations of petitioner in the areas of facilitating instruction and performing non-instructional duties. The superintendent interviewed four staff members at the school and asked each of them whether they believed \u201cthe principal [had] a personal bias against [petitioner].\u201d None of the staff members indicated that the principal was personally biased against petitioner. The superintendent provided a memorandum to the board in which the superintendent summarized his investigation and recommended that the board not renew petitioner\u2019s contract. The superintendent wrote the following:\nAfter careful consideration and review, I am not recommending tenure status for [petitioner], English teacher, Nantahala School. This decision is based upon my investigation that followed the principal\u2019s recommendation to non-renew.\nI have met with both [petitioner] and the principal on separate occasions to discuss each one\u2019s point of view. [Petitioner] did not know why the situation had progressed to the point that it is today. After speaking with [the principal] about [petitioner\u2019s] concerns, he expressed his interactions with [petitioner] over the past three years. On several occasions, the two of them had met in his office and the conference ended abruptly and with [petitioner\u2019s] voice being raised in the process. There was a water gun incident in which [petitioner] squirted the principal after being told not to do so. This was done in the presence of a student, who, in turn, felt he could do the same thing to [the principal].\nWhile this may seem to be an isolated case, [the principal] feels that [petitioner] may be a counter-productive force concerning the morale of the faculty at Nantahala School. It is imperative that the morale of the school be first priority. [Petitioner] openly complained [about] covering classes for other teachers and about not being a chaperone on the Junior/Senior trip. The final blow came during [petitioner\u2019s] summative evaluation meeting with [the principal]. During this meeting, [petitioner] was told that she was marked down with \u201cbelow standard\u201d in two areas. Rather than inquiring into why this occurred, she proceeded to tell [the principal] that she was going to talk with her attorney.\nThe superintendent presented this information to the board. The minutes of the closed session of the board\u2019s meeting state: \u201cThe Board discussed [the] Superintendentes]... recommendation to deny tenure to [petitioner]. The Superintendent reviewed [petitioner\u2019s] most recent evaluation with the Board . . ., which included two ratings below standard, and [the] Superintendent. . . read the attached memorandum ... to the Board.\u201d The board voted not to renew petitioner\u2019s contract.\nPetitioner filed an amended notice of appeal from the board\u2019s decision, alleging that the decision of the board \u201cviolated N.C.G.S. \u00a7 115C-325(m)(2) in that the decision was arbitrary and capricious or was based on personal considerations.\u201d The trial court conducted a hearing on 26 May 2005 and entered an order on 10 June 2005 upholding the board\u2019s decision. Petitioner filed a motion for reconsideration on 20 June 2005. In her motion, petitioner stated that at the hearing, the board \u201cclaimed it had a copy of the minutes from an April 2003 faculty meeting convened prior to the Spring Festival in which the ban on water pistols was announced \u2014 and that [petitioner had deliberately ignored that directive.\u201d However, petitioner contended this was false in an affidavit filed with her motion for reconsideration. In an order entered 5 July 2005, the trial court denied petitioner\u2019s motion for reconsideration. Petitioner appeals.\nWe note petitioner failed to cite in the record on appeal the record pages corresponding to each of her assignments of error. The board filed a motion with this Court to dismiss petitioner\u2019s appeal based on this violation of the North Carolina Rules of Appellate Procedure. Petitioner filed a written motion with this Court seeking leave to amend the record on appeal to correct the assignments of error. However, despite the Rules violation, we are able to determine the issues in this case. Since petitioner\u2019s Rules violation is not \u201cso egregious as to invoke dismissalf,]\u201d Symons Corp. v. Insurance Co. of North America, 94 N.C. App. 541, 543, 380 S.E.2d 550, 552 (1989), we elect to review the significant issues of this appeal pursuant to N.C.R. App. P. 2. See Symons, 94 N.C. App. at 543, 380 S.E.2d at 552.\nI.\nPetitioner first argues the trial court erred by (1) determining that it was required to apply the whole record test to its review of respondent\u2019s decision and (2) failing to review respondent\u2019s decision de novo. Petitioner states in her brief that she \u201cagrees that her claim that the decision was arbitrary and capricious should be reviewed under the \u2018whole record\u2019 test[.]\u201d However, petitioner contends the trial court should have applied de novo review to her argument that the board did not renew her contract for personal reasons. In its order filed 10 June 2005, the trial court found and concluded as follows:\nThe appropriate standard of review in this case is a review based upon the \u201cwhole record\u201d of Respondent\u2019s decision. A de novo standard of review is not applicable to any portion of [the trial court\u2019s] review of this appeal, according to Spry v. City of Winston-Salem/Forsyth County Board of Education, 105 N.C. App. 269, 412 S.E.2d 687 (1992), aff\u2019d 332 N.C. 661, 422 S.E.2d 575 and N.C. Gen. Stat. \u00a7 115C-44(b).\nN.C. Gen. Stat. \u00a7 115C-325(m)(2) (2005) provides that a school board, \u201cupon recommendation of the superintendent, may refuse to renew the contract of any probationary teacher . . . for any cause it deems sufficient: Provided, however, that the cause may not be arbitrary, capricious, discriminatory or for personal or political reasons.\u201d Pursuant to N.C. Gen. Stat. \u00a7 115C-325(n) (2005),\nany probationary teacher whose contract is not renewed under G.S. 115C-325(m)(2) shall have the right to appeal from the decision of the board to the superior court for the superior court district or set of districts as defined in G.S. 7A-41.1 in which the career employee is employed.\nOn appeal of a decision of a school board, a trial court sits as an appellate court and reviews the evidence presented to the school board. In re Alexander v. Cumberland Cty. Bd. of Educ., 171 N.C. App. 649, 653-54, 615 S.E.2d 408, 413 (2005). The proper standard of review depends upon the nature of the asserted error. Id. at 654, 615 S.E.2d at 413. N.C. Gen. Stat. \u00a7 150B-51(b) governs judicial review of school board actions, Farris v. Burke Cty. Bd. of Educ., 355 N.C. 225, 235, 559 S.E.2d 774, 781 (2002), and provides as follows:\nExcept as provided in subsection (c) of this section, in 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.\nN.C. Gen. Stat. \u00a7 150B-51(b) (2005). A de novo standard of review applies to asserted errors under subsections (1) through (4) of N.C.G.S. \u00a7 150B-51(b), while errors under subsections (5) and (6) of this statute are reviewed under the whole record test. In re Alexander, 171 N.C. App. at 654, 615 S.E.2d at 413.\n\u201cUnder a de novo review, the superior court \u2018considers] the matter anew[] and freely substitutes] its own judgment for the agency\u2019s judgment.\u2019 \u201d Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (quoting Sutton v. N.C. Dep\u2019t of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999)). Pursuant to the whole record test, the reviewing court examines all competent evidence to determine whether a school board\u2019s decision was based upon substantial evidence. Zimmerman v. Appalachian State Univ., 149 N.C. App. 121, 129, 560 S.E.2d 374, 380 (2002). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Comr. of Insurance v. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977). Pursuant to N.C. Gen. Stat. \u00a7 115C-44(b) (2005), \u201c[i]n all actions brought in any court against a local board of education, the order or action of the board shall be presumed to be correct and the burden of proof shall be on the complaining party to show the contrary.\u201d\nIn Spry v. Winston-Salem/Forsyth Bd. of Educ., 105 N.C. App. 269, 412 S.E.2d 687, aff\u2019d per curiam, 332 N.C. 661, 422 S.E.2d 575 (1992), the plaintiff, a probationary teacher whose contract was not renewed by the school board, sued the school board under prior law, which allowed the right to a jury trial in such cases. Id. at 272-73, 412 S.E.2d at 689. The plaintiff argued, pursuant to N.C.G.S. \u00a7 115C-325(m)(2), that the school board\u2019s decision not to renew her contract was arbitrary, capricious, or based upon personal considerations. Id. at 274, 412 S.E.2d at 690. Our Court held that the whole record test applied to the plaintiff\u2019s appeal. Id. at 272, 412 S.E.2d at 689.\nIn the present case, despite petitioner\u2019s contention, the trial court did not determine that whole record review was the only standard of review applicable to decisions of school boards. Rather, because of the nature of the asserted errors in the present case, the trial court correctly determined that the whole record test was the proper standard of review. Likewise, in its order on petitioner\u2019s Rule 59 and Rule 60 motions, from which petitioner also appealed, the trial court stated as follows:\nThis court did not conclude it could \u201conly\u201d review the case under the whole record standard, thereby disregarding and ignoring all other methods of review, as Petitioner contends; this court actually determined the specific nature of this controversy and then determined the whole record standard was the appropriate and proper standard of review for this particular case.\nMoreover, whole record review was the proper standard of review to apply to petitioner\u2019s claim that the board terminated her contract for personal reasons. Our Court has held that \u201c[i]ssues regarding the intent of the parties are issues of fact.\u201d Harris-Teeter Supermarkets v. Hampton, 76 N.C. App. 649, 652, 334 S.E.2d 81, 83, disc. review denied, 315 N.C. 183, 337 S.E.2d 857 (1985).\nIn N.C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004), a park ranger, Carroll, was demoted for, inter alia, having \u201cwillfully violated the Division Law Enforcement written guidelines on the use of emergency vehicles[.]\u201d Id. at 656, 599 S.E.2d at 893. Carroll filed a petition for a contested case hearing and an administrative law judge entered a recommended decision directing that Carroll be reinstated with back pay. Id. at 652, 599 S.E.2d at 890. The State Personnel Commission (SPC) adopted the recommended decision and ordered that Carroll be reinstated with back pay. Id. However, the trial court reversed the SPC and our Court affirmed. Id.\nIn Carroll, our Supreme Court noted that fact-intensive issues receive whole record review. Carroll, 358 N.C. at 659, 599 S.E.2d at 894. The Court addressed the issue of whether \u201cCarroll\u2019s alleged \u2018willful violation\u2019 of the Division\u2019s written guidelines for the use of emergency vehicles constituted \u2018just cause\u2019 for his demotion.\u201d Id. at 670, 599 S.E.2d at 901. One of the Division\u2019s guidelines permitted a law enforcement officer to \u201cuse emergency warning devices when the officer ha[d] a \u2018reasonable belief\u2019 that an emergency situation exist[ed].\u201d Id. at 671, 599 S.E.2d at 902. The SPC found as a fact that Carroll had a reasonable belief that an emergency situation existed and the SPC concluded that Carroll\u2019s conduct did not constitute a willful violation of work rules. Id. Our Supreme Court held as follows: \u201cThe trial court reviewed the SPC\u2019s findings regarding . . . Carroll\u2019s motivations for his conduct under the whole record test. Because . . . Carroll\u2019s subjective state of mind is manifestly a question of fact, this was the correct standard of review to apply.\u201d Id.\nIn the present case, petitioner argues that the board did not renew her contract because it harbored personal bias towards petitioner. In essence, petitioner argues that the intent behind the board\u2019s decision was personal. As in Carroll, because the board\u2019s motivation for its decision not to renew petitioner\u2019s contract was \u201cmanifestly a question of fact,\u201d the trial court properly engaged in whole record review of this issue. See Id. Therefore, the trial court did not err and we overrule petitioner\u2019s assignment of error.\nII.\nPetitioner next argues the trial court misapplied the whole record test with regard to petitioner\u2019s claim that the board\u2019s decision was arbitrary. Specifically, petitioner argues that, because of a factual inaccuracy in the superintendent\u2019s memorandum to the board, the trial court could not affirm the board\u2019s decision without \u201csubstituting its judgment for the Board\u2019s and deciding what the Board would have concluded if it had not received incorrect information.\u201d\n\u201cAn arbitrary or capricious reason is one \u2018without any. rational basis in the record, such that a decision made thereon amounts to an abuse of discretion.\u2019 \u201d Abell v. Nash County Bd. of Education, 89 N.C. App. 262, 265, 365 S.E.2d 706, 708 (1988) (quoting Abell v. Nash County Bd. of Education, 71 N.C. App. 48, 52-53, 321 S.E.2d 502, 506 (1984), disc. review denied, 313 N.C. 506, 329 S.E.2d 389 (1985)). \u201cA court applying the whole record test 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.\" Watkins v. N.C. State Bd. of Dental Exam\u2019rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004). \u201cOnly when there is no substantial evidence supporting administrative action should the court reverse an agency\u2019s ruling.\u201d Mendenhall v. N.C. Dept. of Human Resources, 119 N.C. App. 644, 650, 459 S.E.2d 820, 824 (1995).\nIn the present case, the trial court made the following unchallenged findings of fact:\n11. The Superintendent prepared a memorandum regarding his recommendation and provided that memorandum to [the board]. While it appears the memorandum contains an inaccurate reference (i.e., that before Petitioner squirted the principal with the squirt gun, she had been told not to), and may not include all information available, the preparation and presentation of the memorandum by itself does not render the Superintendent\u2019s recommendation or the ultimate decision arbitrary or capricious. This Court has duly considered the composition of the memorandum, and its use, and the arguments presented by counsel concerning the memorandum, in conducting the review of the [board\u2019s] decision.\n12. The Superintendent\u2019s memorandum, which is part of the administrative record of the [board\u2019s] decision, indicates reasons for the decision that are not arbitrary, capricious, based upon personal considerations or are otherwise improper reasons, as designated in \u00a7 115C-325(m)(2).\nThe trial court properly applied the whole record test to the evidence presented to the board. The trial court looked at all of the evidence and determined there was substantial evidence to support the board\u2019s determination, even without the inaccurate information. The trial court did not \u201csubstitute its judgment\u201d for that of the board. See Watkins, 358 N.C. at 199, 593 S.E.2d at 769. Accordingly, the trial court did not misapply the whole record standard of review and we overrule this assignment of error.\nIII.\nPetitioner also argues the trial court misapplied the whole record test by finding that the board conducted a sufficient inquiry into the substantive reasons for its decision not to renew petitioner\u2019s contract. In Abell, our Court recognized that \u201c[a] school board may refuse to renew a probationary teacher\u2019s contract upon recommendation of the superintendent. That recommendation is only advisory, however; ultimate responsibility rests with the board.\u201d Abell, 71 N.C. App. at 52, 321 S.E.2d at 506. Our Court interpreted N.C.G.S. \u00a7 115C-325(m)(2) \u201cto impose a duty on boards of education to determine the substantive bases for recommendations of non-renewal and to assure that non-renewal is not for a prohibited reason.\u201d Id. at 52, 321 S.E.2d at 506. Our Court held that \u201cthe advisory nature of the superintendent\u2019s recommendation to not rehire a non-tenured teacher places the responsibility on the Board to ascertain the rational basis for the recommendation before acting upon it.\u201d Id. at 53, 321 S.E.2d at 506. However, a school board need not \u201cmake exhaustive inquiries or formal findings of fact[.]\u201d Id. Rather, \u201cthe administrative record, be it the personnel file, board minutes or recommendation memoranda, should disclose the basis for the board\u2019s action.\u201d Id. at 53, 321 S.E.2d at 506-07.\nIn Spry, the board of education hired the plaintiff as a probationary teacher and assigned a support team to evaluate her teaching performance. Spry, 105 N.C. App. at 270, 412 S.E.2d at 687-88. The support team informed the plaintiff that her teaching performance was unacceptable. Id. at 270, 412 S.E.2d at 688. However, the plaintiff complained to the principal that she had personality conflicts with the members of her support team. Id. The principal visited the plaintiff\u2019s class and then recommended, through a member of the support team, that the school board not renew the plaintiff\u2019s contract. Id. at 270-71, 412 S.E.2d at 688. The superintendent conducted an investigation and recommended that the school board not renew the plaintiff\u2019s contract, and the school board voted for non-renewal of the plaintiff\u2019s contract. Id. at 271, 412 S.E.2d at 688.\nThe plaintiff filed an action against the board under the prior law, which allowed the right to a jury trial in such cases. Id. at 272-73, 412 S.E.2d at 689. The jury found that the school board failed to renew the plaintiff\u2019s contract for arbitrary, capricious and personal reasons and awarded damages to the plaintiff. Id. at 271, 412 S.E.2d at 688.\nThe school board argued on appeal that the trial court erred by denying its motions for summary judgment, directed verdict and judgment notwithstanding the verdict. Id. The plaintiff argued that the school board\u2019s decision not to renew her contract was for arbitrary, capricious or personal reasons. Id. at 274, 412 S.E.2d at 690. Specifically, the plaintiff alleged that the members of her support team were personally biased against her. Id. However, in making its decision not to renew the plaintiff\u2019s contract, the school board considered the following information:\n(1) a memo from the school superintendent recommending that the Board not renew [the] plaintiff\u2019s contract; (2) the superintendent\u2019s exhibits which included materials prepared by [the] plaintiff\u2019s principal and support team; and (3) [the] plaintiff\u2019s exhibits, which included letters of recommendation, her letter to Principal Benjamin Warren outlining her concerns about her support team, and several evaluation forms. At the hearing, the Board also heard [the] plaintiff, her attorney, and a local teachers\u2019 organization representative speak on [the] plaintiff\u2019s behalf before it made its decision.\nId. Our Court held that even if the plaintiffs allegations regarding her support team were true, the school board conducted a sufficient inquiry into the matter. Id. at 275, 412 S.E.2d at 690. Our Court also held that \u201cthe inquiry by the superintendent\u2019s office was sufficient to remove any taint that may have existed in the support team\u2019s evaluation.\u201d Id. Accordingly, our Court reversed the judgment of the trial court. Id. at 276, 412 S.E.2d at 691.\nIn the present case, the principal recommended that petitioner\u2019s contract not be renewed. The superintendent then conducted an investigation regarding the principal\u2019s recommendation. The superintendent met with the principal and with petitioner and reviewed notes provided by them. The superintendent also reviewed two \u201cBelow Standard\u201d performance evaluations of petitioner in the areas of facilitating instruction and performing non-instructional duties. The superintendent interviewed four staff members at the school and asked each of them whether they believed \u201cthe principal [had] a personal bias against [petitioner].\u201d None of the staff members indicated that the principal was personally biased against petitioner. The superintendent provided a memorandum to the board in which the superintendent summarized his investigation and recommended that the board not renew petitioner\u2019s contract. The superintendent presented this information to the board. The minutes of the closed session of the board\u2019s meeting state: \u201cThe Board discussed [the] Superin-tendentes] . . . recommendation to deny tenure to [petitioner]. The Superintendent reviewed [petitioner\u2019s] most recent evaluation with the Board . . ., which included two ratings below standard, and [the] Superintendent... read the attached memorandum ... to the Board.\u201d The board voted not to renew petitioner\u2019s contract.\nBased upon the board\u2019s inquiry, and pursuant to Abell, the board satisfied its duties \u201cto determine the substantive bases for recommendations of non-renewal and to assure that non-renewal [was] not for a prohibited reason.\u201d See Abell, 71 N.C. App. at 52, 321 S.E.2d at 506. The administrative record in the present case shows that petitioner\u2019s contract was not renewed because she threatened to be \u201ca counter-productive force concerning the morale of the faculty at Nantahala School[]\u201d based upon several instances of petitioner\u2019s conduct. Moreover, the inquiry conducted by the superintendent in the present case was similar to the inquiry conducted by the superintendent in Spry. As in Spry, the superintendent\u2019s investigation in the present case served to (1) provide non-arbitrary and non-personal reasons for petitioner\u2019s non-renewal and (2) \u201cremove any taint that may have existed in the [principal\u2019s] evaluation.\u201d See Spry, 105 N.C. App. at 275, 412 S.E.2d at 690. We overrule petitioner\u2019s assignment of error.\nIV.\nPetitioner argues the trial court abused its discretion by denying her motion for reconsideration. Specifically, petitioner assigned as error that \u201c[t]he [trial] court erred in denying the Motion for Reconsideration where the Motion showed that the Board . . . had presented false information to the [trial] [c]ourt at the May 26 hearing.\u201d\nWe review the denial of Rule 59 and Rule 60 motions for an abuse of discretion. Ollo v. Mills, 136 N.C. App. 618, 624, 525 S.E.2d 213, 217 (2000). \u201cA ruling committed to a trial court\u2019s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.\u201d White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).\nIn the present case, petitioner argued in her motion for reconsideration that the board deliberately misrepresented to the trial court that petitioner had been told not to squirt the principal with a squirt gun before she did so. In its order denying petitioner\u2019s motion, the trial court stated that\nthe [trial court] specifically addressed and considered this matter, and made reference to the situation in the Order entered after the May 26, 2005 hearing, recognizing that such information was evidently erroneous. Reference is made to Paragraph 11 of the [trial] court\u2019s June 2, 2005 Order. Having recognized and considered the inaccurate references in the [trial court\u2019s] earlier Order, no relief would be proper for the same reason, under Rules 59 or 60.\nOn appeal, petitioner argues \u201c[t]he [trial] court\u2019s rationale for declining to reconsider that issue, even with a showing of false statements by the school system to the [trial] court, reflects the [trial] court\u2019s misapplication of the whole record test in this case.\u201d However, we have already held that the trial court properly applied the whole record test to this issue. For the same reasons, we conclude the trial court did not abuse its discretion.\nPetitioner also attempts to argue in her brief that the trial court abused its discretion by failing to reconsider its ruling that the de novo standard of review did not apply to the trial court\u2019s review of petitioner\u2019s action. However, petitioner did not list this specific argument in her assignment of error and therefore we do not address this issue. See N.C.R. App. P. 10(a). This assignment of error is overruled.\nAffirmed.\nJudges ELMORE and STEELMAN concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Ferguson, Stein, Chambers, Gresham & Sumter, P.A., by S. Luke Largess, for petitioner-appellant.", "Fisher & Phillips, LLP, by Shannon Sumerell Spainhour and Mason G. Alexander, for respondent-appellee.", "Tharrington Smith, by Neal A. Ramee; and Allison B. Schafer, for the North Carolina School Boards Association, amicus curiae." ], "corrections": "", "head_matter": "DOROTHY DAVIS, Petitioner-Appellant v. THE MACON COUNTY BOARD OF EDUCATION, Respondent-Appellee\nNo. COA05-1337\n(Filed 1 August 2006)\n1. Appeal and Error\u2014 assignment of error \u2014 failure to cite record pages\nAn appeal was heard despite the failure to cite record pages corresponding with each assignment of error where the appellate court was able to determine the issues in the case.\n2. Administrative Law\u2014 appeal from school board \u2014 issue of fact \u2014 whole record review\nThe trial court correctly engaged in whole record review where a Board of Educations\u2019s motivation for not renewing a teacher\u2019s contract was manifestly a question of fact.\n3. Schools and Education\u2014 teacher\u2019s contract \u2014 not renewed \u2014 whole record review \u2014 evidence sufficient\nThe trial court did not misapply the. whole record standard of review in an appeal from the school board\u2019s decision not to renew a teacher\u2019s contract. The court looked at all of the evidence, determined that there was substantial evidence to support the board\u2019s determination, and did not substitute its judgment for that of the board.\n4. Schools and Education\u2014 teacher\u2019s contract not renewed\u2014 review of basis for recommendation\nA school board\u2019s inquiry satisfied its duty to determine the substantive basis for the superintendent\u2019s recommendation not to renew a teacher\u2019s contract and thus to deny her tenure and its duty to assure that the nonrenewal was not for a prohibited reason. The contract was not renewed because petitioner threatened to be a counter-productive force for morale at the school.\n5. Schools and Education\u2014 appeal of nonrenewal of teacher\u2019s contract \u2014 motion for reconsideration denied\nThe trial court did not abuse its discretion by not reconsidering a teacher\u2019s appeal of the decision not to renew her contract where the board had presented erroneous information. The whole record test was properly applied.\n6. Appeal and Error\u2014 preservation of issues \u2014 assignment of error \u2014 argument not included\nAn argument not listed in the assignment of error was not addressed.\nAppeal by petitioner from orders entered 10 June 2005 and 5 July 2005 by Judge James L. Baker, Jr. in Superior Court, Macon County. Heard in the Court of Appeals 11 May 2006.\nFerguson, Stein, Chambers, Gresham & Sumter, P.A., by S. Luke Largess, for petitioner-appellant.\nFisher & Phillips, LLP, by Shannon Sumerell Spainhour and Mason G. Alexander, for respondent-appellee.\nTharrington Smith, by Neal A. Ramee; and Allison B. Schafer, for the North Carolina School Boards Association, amicus curiae." }, "file_name": "0646-01", "first_page_order": 678, "last_page_order": 691 }