{ "id": 4156431, "name": "ALMA CHINITA TROTTER, Petitioner v. NC DEPARTMENT OF HEALTH & HUMAN SERVICES, PUBLIC HEALTH DEPT., Respondent", "name_abbreviation": "Trotter v. NC Department of Health & Human Services", "decision_date": "2008-04-15", "docket_number": "No. COA07-1035", "first_page": "655", "last_page": "668", "citations": [ { "type": "official", "cite": "189 N.C. App. 655" } ], "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": "616 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633596 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "600-01", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0594-01" ] }, { "cite": "618 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633852 ], "weight": 9, "year": 2005, "pin_cites": [ { "page": "287", "parenthetical": "internal citations omitted" }, { "page": "289" }, { "page": "287" }, { "page": "289" }, { "page": "287" }, { "page": "287" }, { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0280-01" ] }, { "cite": "635 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636797 ], "year": 2006, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/se2d/635/0463-01" ] }, { "cite": "633 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636457 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/633/0675-01" ] }, { "cite": "623 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634719 ], "weight": 2, "pin_cites": [ { "page": "633" }, { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0629-01" ] }, { "cite": "616 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633600 ], "year": 2005, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0622-01" ] }, { "cite": "110 L. Ed. 2d 651", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "496 U.S. 931", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12152225, 12152134, 12152362, 12152274, 12152182, 12152311 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/496/0931-03", "/us/496/0931-01", "/us/496/0931-06", "/us/496/0931-04", "/us/496/0931-02", "/us/496/0931-05" ] }, { "cite": "387 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "662" } ], "opinion_index": 0 }, { "cite": "326 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305891 ], "year": 1990, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0001-01" ] }, { "cite": "593 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "769", "parenthetical": "internal citations omitted" }, { "parenthetical": "internal citations omitted" }, { "page": "769" } ], "opinion_index": 0 }, { "cite": "358 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986024 ], "year": 2004, "pin_cites": [ { "page": "199", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0190-01" ] }, { "cite": "172 N.C. 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App.", "case_ids": [ 8352820 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "31", "parenthetical": "internal citations omitted" }, { "page": "31" }, { "page": "31" }, { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0022-01" ] }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "894", "parenthetical": "internal citations omitted" }, { "page": "895" } ], "opinion_index": 0 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "658", "parenthetical": "internal citations omitted" }, { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "179 N.C. App. 743", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8239299 ], "year": 2006, "pin_cites": [ { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0743-01" ] }, { "cite": "360 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789350, 3794987, 3791275, 3789520, 3791447, 3787453 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0531-05", "/nc/360/0531-01", "/nc/360/0531-02", "/nc/360/0531-04", "/nc/360/0531-03", "/nc/360/0531-06" ] }, { "cite": "175 N.C. App. 265", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351815 ], "weight": 2, "pin_cites": [ { "page": "270" }, { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0265-01" ] }, { "cite": "172 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320937 ], "year": 2005, "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0567-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "616 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633596 ], "year": 2005, "pin_cites": [ { "page": "601", "parenthetical": "quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 422, 113 S. Ct. 2742, 2752 (1993)" } ], "opinion_index": 1, "case_paths": [ "/se2d/616/0594-01" ] }, { "cite": "595 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "754", "parenthetical": "rejecting argument that superior qualifications necessarily establish pretext for discriminatory motive" } ], "opinion_index": 1 }, { "cite": "164 N.C. App. 233", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896766 ], "year": 2004, "pin_cites": [ { "page": "246", "parenthetical": "rejecting argument that superior qualifications necessarily establish pretext for discriminatory motive" } ], "opinion_index": 1, "case_paths": [ "/nc-app/164/0233-01" ] }, { "cite": "125 S. Ct. 49", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2004, "opinion_index": 1 }, { "cite": "160 L. Ed. 2d 18", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "opinion_index": 1 }, { "cite": "543 U.S. 813", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5871970, 5944035, 5869117, 5890088, 5940010, 3440042, 5982770, 5906835, 3438997, 5905269, 3433335, 5906713, 5889373 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/us/543/0813-06", "/us/543/0813-12", "/us/543/0813-05", "/us/543/0813-02", "/us/543/0813-01", "/us/543/0813-08", "/us/543/0813-11", "/us/543/0813-13", "/us/543/0813-04", "/us/543/0813-09", "/us/543/0813-07", "/us/543/0813-10", "/us/543/0813-03" ] }, { "cite": "355 F.3d 766", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9062746 ], "pin_cites": [ { "page": "788" } ], "opinion_index": 1, "case_paths": [ "/f3d/355/0766-01" ] }, { "cite": "605 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "477" } ], "opinion_index": 1 }, { "cite": "167 N.C. App. 165", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410936 ], "year": 2004, "pin_cites": [ { "page": "168" } ], "opinion_index": 1, "case_paths": [ "/nc-app/167/0165-01" ] }, { "cite": "306 S.E.2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "536" } ], "opinion_index": 1 }, { "cite": "64 N.C. App. 67", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526180 ], "year": 1983, "pin_cites": [ { "page": "69" } ], "opinion_index": 1, "case_paths": [ "/nc-app/64/0067-01" ] }, { "cite": "509 U.S. 502", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 355912 ], "weight": 7, "year": 1993, "pin_cites": [ { "page": "515" }, { "page": "422" }, { "page": "2752" }, { "page": "519" }, { "page": "424" }, { "page": "2754" } ], "opinion_index": 1, "case_paths": [ "/us/509/0502-01" ] }, { "cite": "411 U.S. 792", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10002 ], "weight": 3, "year": 1973, "opinion_index": 1, "case_paths": [ "/us/411/0792-01" ] }, { "cite": "301 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 14, "year": 1983, "pin_cites": [ { "page": "85" }, { "page": "82" }, { "parenthetical": "emphasis added" }, { "page": "82-83" }, { "page": "138" }, { "page": "83" }, { "page": "139" }, { "page": "84" }, { "page": "140" }, { "page": "84" } ], "opinion_index": 1 }, { "cite": "308 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707236 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "141" }, { "page": "137" } ], "opinion_index": 1, "case_paths": [ "/nc/308/0131-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-34.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 126-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 1 }, { "cite": "593 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "769", "parenthetical": "internal citation omitted" } ], "opinion_index": 1 }, { "cite": "358 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986024 ], "year": 2004, "pin_cites": [ { "page": "199", "parenthetical": "internal citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0190-01" ] }, { "cite": "172 N.C. App. 530", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320720 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "540", "parenthetical": "quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 422, 113 S. Ct. 2742, 2752 (1993)" }, { "page": "538" }, { "page": "536" } ], "opinion_index": 1, "case_paths": [ "/nc-app/172/0530-01" ] }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "904", "parenthetical": "holding that it is the agency's responsibility, and not the court's, to determine the weight and sufficiency of the evidence and the credibility of the witnesses, to draw inferences from the facts, and to appraise conflicting and circumstantial evidence" } ], "opinion_index": 1 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "year": 2004, "pin_cites": [ { "page": "674", "parenthetical": "holding that it is the agency's responsibility, and not the court's, to determine the weight and sufficiency of the evidence and the credibility of the witnesses, to draw inferences from the facts, and to appraise conflicting and circumstantial evidence" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0649-01" ] } ], "analysis": { "cardinality": 1082, "char_count": 32004, "ocr_confidence": 0.746, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13536406948822113 }, "sha256": "e80a430c896c87d5c43f8e97ff8b8eb72d21fd00c3800034e3d0b5820edbdd05", "simhash": "1:01c955b8551e3ce2", "word_count": 5113 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STROUD concurs.", "Judge GEER concurs in the result only by separate opinion." ], "parties": [ "ALMA CHINITA TROTTER, Petitioner v. NC DEPARTMENT OF HEALTH & HUMAN SERVICES, PUBLIC HEALTH DEPT., Respondent" ], "opinions": [ { "text": "TYSON, Judge.\nThe Public Health-Department of the North Carolina Department of Health and Human Services (\u201cDHHS\u201d) appeals from order entered by the superior court, which reversed the decision of the State Personnel Commission (\u201cSPC\u201d). We reverse and remand.\nI. Background\nIn the Spring of 2005, sixty-two-year-old Dr. Alma Chinita Trotter (\u201cDr. Trotter\u201d) applied for a full-time Educational Diagnostician II position opening posted by DHHS (\u201cthe position\u201d). The position was to be located in the Raleigh office for the Child Developmental Services Agency (\u201cCDSA\u201d), a subdivision of DHHS.\nThe application and review process is described in the record. Applications received by DHHS are sent to the Human Resources office where a personnel technician enters the applicant\u2019s name and other information into the Applicant Tracking System (\u201cATS\u201d). The technician forwards the applications and an applicant log that contains Equal Employment Opportunity (\u201cEEO\u201d) information to a recruitment coordinator.\nThe recruitment coordinator reviews the applications, screens the applicants for \u201cminimum qualifications\u201d based on the \u201cTraining and Experience\u201d requirements listed in the posting, and indicates whether the applicant is qualified on the applicant log. The applications and the applicant log are returned to the personnel technician. The technician enters the new information into the ATS and generates an Applicant Selection Log. The Applicant Selection Log lists qualified applicants without disclosing their EEO information.. The Applicant Selection Log is sent to the hiring manager.\nHiring manager Timothy C. Pritchard (\u201cPritchard\u201d) received the Applicant Selection Log from the personnel technician, which listed Dr. Trotter and seven other applicants as qualified by the human resources staff. Pritchard interviewed two internal applicants listed on the Applicant Selection Log that he also determined to be qualified. Pritchard recommended thirty-seven-year-old internal applicant Evangeline Seay (\u201cSeay\u201d) for the position in the Raleigh CDSA office.\nPritchard indicated that he believed Dr. Trotter had \u201csufficient experience but less than the selected candidate.\u201d On 27 June 2005, the DHHS recruitment staff sent a rejection letter to Dr. Trotter regarding the position. Dr. Trotter contacted Pritchard to discern why she did not receive an interview. Pritchard told Dr. Trotter that a candidate currently working for DHHS possessed the qualifications and was a better fit for the position.\nOn 26 July 2005, Dr. Trotter filed a petition for a contested case hearing pursuant to N.C. Gen. Stat. \u00a7 126 and alleged she had been discriminated against based on race, sex, and age. On 1 June 2006, the Administrative Law Judge (\u201cALJ\u201d) filed its decision, which concluded DHHS did not discriminate against Dr. Trotter. In an opinion and award filed on 14 September 2006, the SPC adopted the AU\u2019s decision and findings of fact. On 14 October 2006, Dr. Trotter appealed to the superior court pursuant to N.C. Gen. Stat. \u00a7 150B-45.\nOn 2 May 2007, the superior court reversed the SPC decision and remanded the case \u201cwith instructions to retroactively instate and award retroactive back pay for Dr. Trotter in the position she was discriminatorily denied as of the date [D]HHS denied her [an] opportunity for an interview.\u201d The court also: (1) ordered DHHS to apologize for its \u201cdisrespect . . . showed to [Dr. Trotter;]\u201d (2) awarded Dr. Trotter \u201cher reasonable lawyers fees and costsf;]\u201d and (3) ordered extra training in the non-discriminatory treatment of applicants for DHHS\u2019s management by the Office of State Personnel. DHHS appeals.\nII,Issues\nDHHS argues the superior court erred when it: (1) applied multiple standards of review when it substituted new findings of fact for those in the SPC final decision; (2) determined the SPC final decision was unsupported by substantial evidence and was arbitrary and capricious; (3) concluded that the SPC erred in its conclusions of law that DHHS had discriminated against Dr. Trotter based on age; and (4) ordered DHHS to issue an apology to Dr. Trotter and to provide extra training for DHHS management.\nIII.Standard of Review\n\u201c[When] we . . . review[] a \u2018review proceeding\u2019 in the superior court and petitioners are appealing pursuant to N.C. Gen. Stat. \u00a7 7A-27, we . . . apply N.C. Gen. Stat. \u00a7 150B-52 . . . .\u201d Lincoln v. N.C. Dep\u2019t of Health & Human Servs., 172 N.C. App. 567, 569, 616 S.E.2d 622, 624 (2005). N.C. Gen. Stat. \u00a7 150B-52 (2005) states:\nA party to a review proceeding in a superior court may appeal to the appellate division from the final judgment of the superior court as provided in G.S. 7A-27. The scope of review to be applied by the appellate court under this section is the same as it is for other civil cases.\n\u201c[T]he appellate court examines the trial court\u2019s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d Carillon Assisted Living, LLC v. N.C. Dep\u2019t of Health & Human Servs., 175 N.C. App. 265, 270, 623 S.E.2d 629, 633 (internal quotation omitted), disc. rev. denied, 360 N.C. 531, 633 S.E.2d 675 (2006).\nIV.Superior Court\u2019s Standard of Review\nDHHS argues the superior court erred when it applied both a de novo review and the whole-record test when it substituted new findings of fact for those found in the SPC decision.\n\u201cThe proper standard of review by the trial court depends upon the particular issues presented by the appeal.\u201d Bobbitt v. N.C. State Univ., 179 N.C. App. 743, 748, 635 S.E.2d 463, 467 (2006). Our Supreme Court has held that \u201cthe substantive nature of each assignment of error dictates the standard of review\u201d during appellate review of an administrative agency\u2019s final decision. N.C. Dept. of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004) (internal citations omitted).\nN.C. Gen. Stat. \u00a7 150B-51(b) (2007) states:\n[I]n reviewing a final decision, the [superior] 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.\n\u201cSubparts (1) through (4) of N.C. Gen. Stat. \u00a7 150B-51(b) are characterized as \u2018law-based\u2019 inquiries. Reviewing courts consider such questions of law under a de novo standard.\u201d Gordon v. N. C. Dep\u2019t of Corr., 173 N.C. App. 22, 31, 618 S.E.2d 280, 287 (2005) (internal citations omitted). Subparts (5) and (6) \u201care \u2018fact-based\u2019 inquiries.\u201d Id. at 34, 618 S.E.2d at 289. \u201cFact-intensive issues \u2018such as sufficiency of the evidence to support an agency\u2019s decision are reviewed under the whole-record test.\u2019 \u201d Id.\nOn appeal to the superior court, Dr. Trotter assigned error to the SPC final decision: \u201c(1) The SPC made an error of law in its statement of the issue; (2) The SPC\u2019s finding of no age discrimination was \u2018unsupported by substantial evidence in view of the entire record[;]\u2019 and (3) The SPC\u2019s finding of no age discrimination was arbitrary and capricious.\u201d\nDr. Trotter\u2019s first allegation is addressed by \u00a7 150B-51(b)(4) and is characterized as a \u201claw-based\u201d inquiry requiring de novo review by the superior court. Id. at 31, 618 S.E.2d at 287. Dr. Trotter\u2019s second and third allegations are subject to N.C. Gen. Stat. \u00a7 150B-51.(b)(5) and (6) respectively, and require review under the whole-record test as \u201cfact-based\u201d inquiries. Id. at 34, 618 S.E.2d at 289. Both de novo review and the whole-record test were appropriate for the issues presented on appeal to the superior court. The superior court appropriately used a de novo review and the whole-record test in its review to the respective assignments of error alleged in the SPC final decision. This assignment of error is overruled.\nV. De Novo Review\nDHHS argues that the superior court erred when it concluded that the SPC erred in its conclusions of law. We disagree.\nDe novo review allows the superior court or this Court to consider the matter anew and to freely substitute its own judgment in place of the agency\u2019s. Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (internal citations omitted). Dr. Trotter\u2019s first exception was a law-based inquiry allowing de novo review. Gordon, 173 N.C. App. at 31, 618 S.E.2d at 287.\nThis Court has stated:\nAn employee can establish a prima 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 was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. An inference of unlawful discrimination arises when an employee is replaced by a substantially younger worker.\nN.C. Dep\u2019t of Crime Control & Pub. Safety v. Greene, 172 N.C. App. 530, 538, 616 S.E.2d 594, 600-01 (2005) (internal citation and quotation omitted).\nReviewing the case anew, the superior court applied the Greene elements when it concluded that Dr. Trotter had met her burden of establishing aprima facie case. Id. The superior court stated:\nDr Trotter\u2019s prima facie case here is a strong one. It is uncontroverted she applied for a vacant position. Furthermore the uncontroverted evidence clearly demonstrates that Dr. Trotter, unlike some discrimination claimants, was extremely well qualified for the position she sought. It is also beyond question that Dr. Trotter satisfied the third and fourth elements of her prima facie burden, namely that, despite her qualifications, Mr. Prichard rejected her application and then quickly filled the position by hiring a substantially younger, less-qualified applicant.\nThe superior court acted within its statutory authority to review the issue of the petition to the SPC de novo as a law-based inquiry. N.C. Gen. Stat. \u00a7 150B-51(b)(4) (2007); Gordon, 173 N.C. App. at 31, 618 S.E.2d at 287. The superior court properly exercised its appropriate de novo scope of review. Id., Carillon Assisted Living, 175 N.C. App. at 270, 623 S.E.2d at 633. This assignment of error is overruled.\nVI. Whole Record Test,\nDHHS argues that the superior court erred in its determination that the SPC decision was unsupported by substantial evidence in the record. We agree.\nDr. Trotter\u2019s second and third assignments of error qualified as fact-based inquiries under N.C. Gen. Stat. \u00a7 150B-51(b)(5) and (6). The superior court was required to apply the whole-record test. Gordon, 173 N.C. App. at 34, 618 S.E.2d at 289. \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) (internal citations omitted) (emphasis supplied). Instead, the superior court \u201cmust examine all the record evidence^ \u2014 that which detracts from the agency's 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.\u201d Id. (internal citations omitted). \u201c \u2018Substantial evidence\u2019 means relevant evidence a reasonable mind might accept as adequate to support a conclusion.\u201d N.C. Gen. Stat. \u00a7 150B-2(8b) (2005).\nThe superior court reviewed the record of Dr. Trotter\u2019s petition, considered the application and hiring process, the applications of Dr. Trotter and Seay, and Pritchard\u2019s justifications for failing to extend an interview to Dr. Trotter. The superior court determined that no substantial evidence existed to justify the SPC\u2019s final decision which stated \u201c[Pritchard] offered different justifications at different times for his failure to interview Dr. Trotter.\u201d The superior court found \u201c[t]he SPC\u2019s finding of no age discrimination . . . \u2018unsupported by substantial evidence in view of the entire record\u2019 and ... arbitrary and capricious.\u201d\nThe whole record test required the superior court to analyze all the evidence in the record in order \u201cto determine whether there [was] substantial evidence to justify the [SPC] decision.\u201d Carroll, 358 N.C. at 660, 599 S.E.2d at 895. If so, the superior court could not substitute its judgment or engage in new fact finding, as it sat as an appellate court. Batch v. Town of Chapel Hill, 326 N.C. 1, 11, 387 S.E.2d 655, 662, cert. denied, 496 U.S. 931, 110 L. Ed. 2d 651 (1990).\nThe superior court appropriately used the whole-record test in its review of Dr. Trotter\u2019s second and third assignments of error. In determining a lack of substantial evidence to justify the SPC final decision, the superior court improperly found facts and substituted its judgment for the SPC\u2019s decision as between two conflicting views. Watkins, 358 N.C. at 199, 593 S.E.2d at 769. In doing so, the superior court erred and its order is reversed. In light of our holding, it is unnecessary to review DHHS\u2019s remaining assignments of error.\nVIL Conclusion\nThe superior court appropriately used both a de novo review and the whole-record test to the respective issues on appeal when it reviewed the final decision of the SPC. The superior court erred when it improperly substituted its judgment for that of the SPC under the whole-record test. The superior court\u2019s order, which reversed the SPC final decision due to a lack of substantial evidence to support the agency\u2019s order, is reversed. This case is remanded to the superior court with instructions to enter an order to affirm the SPC\u2019s final agency decision.\nReversed and remanded.\nJudge STROUD concurs.\nJudge GEER concurs in the result only by separate opinion.", "type": "majority", "author": "TYSON, Judge." }, { "text": "GEER, Judge,\nconcurring in the result only.\nWhile the trial court stated the correct standard of review in its decision below, I cannot agree with the majority opinion that it properly applied that standard of review. Nor can I fully agree that the trial court properly concluded that the State Personnel Commission erred in its conclusions of law. As a result, I concur in the result only.\nDr. Trotter filed a petition for a contested case pursuant to the State Personnel Act, N.C. Gen. Stat. \u00a7 126-1 et seq. (2007), initially asserting that she was denied employment \u201cwithout justifiable cause.\u201d She subsequently filed an amended petition, alleging race, sex, and age discrimination when she was denied an interview. The administrative law judge, Sammie Chess, Jr., concluded that Dr. Trotter was not subjected to unlawful discrimination, and the State Personnel Commission adopted that decision.\nIn her petition for judicial review, Dr. Trotter contended: (1) the Commission erred in its statement of the issue by focusing on a denial of employment rather than the denial of an interview; (2) the Commission\u2019s determination that Dr. Trotter was not discriminated against based on her age was not supported by substantial evidence in view of the whole record; and (3) the finding of no age discrimination was arbitrary and capricious.\nThe majority opinion does not address the trial court\u2019s discussion of the first issue: the correct articulation of the issue before the Commission. The trial court concluded that the Commission\u2019s decision was \u201cinfected by an error in applying discrimination law, mainly not examining the ultimate decision here \u2014 to deny Dr. Trotter an interview.\u201d While I agree that this issue is properly a question of law, subject to de novo review, the trial court\u2019s conclusion cannot be reconciled with the State Personnel Act.\nN.C. Gen. Stat. \u00a7 126-34.1(b) (2007) provides:\nAn applicant for initial State employment may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes based upon:\n(1) Alleged denial of employment in violation of G.S. 126-16.\n(2) Denial of the applicant\u2019s request for removal of allegedly inaccurate or misleading information from the personnel file as provided by G.S. 126-25.\n(3) Denial of equal opportunity for employment and compensation on account of the employee\u2019s age, sex, race, color, national origin, religion, creed, political affiliation, or handicapping condition as defined by Chapter 168A of the General Statutes. This subsection with respect to equal opportunity as to age shall be limited to persons who are at least 40 years of age. An applicant may not, however, file a contested case where political affiliation was the reason for the person\u2019s nonselection for (i) an exempt policymaking position as defined in G.S. 126-5(b)(3), (ii) a chief deputy or chief administrative assistant position under G.S. 126-5(c)(4), or (iii) a confidential assistant or confidential secretary position under G.S. 126-5(c)(2).\n(4) Denial of the veteran\u2019s preference in initial State employment provided by Article 13 of this Chapter, for an eligible veteran as defined by G.S. 126-81.\n(5) Denial of employment in violation of G.S. 126-14.2, where an initial determination found probable cause to believe that there has been a violation of G.S. 126-14.2.\nThus, under the statute, an applicant for state employment may bring a contested case for a denial of employment, but no provision authorizes a contested case for denial of an interview.\nThe Commission properly reviewed Dr. Trotter\u2019s case as asserting a claim for discrimination in employment since otherwise, Dr. Trotter asserted no claim at all. It was the trial court \u2014 and not the Commission \u2014 that addressed the wrong issue.\nWith respect to Dr. Trotter\u2019s contention that the evidence did not support the Commission\u2019s finding of no discrimination, we apply the analytical framework set out in N.C. Dep\u2019t of Corr. v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983). In Gibson, our Supreme Court adopted the framework first established for federal employment discrimination actions in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Our Supreme Court explained that the plaintiff carries an initial burden of establishing a prima facie case of discrimination. Gibson, 308 N.C. at 137, 301 S.E.2d at 82. The Court stressed that \u201c[t]he burden of establishing a prima facie case of discrimination is not onerous.\u201d Id. (emphasis added). For example, in a termination case, \u201ca prima facie case of discrimination may be made out by showing that (1) a claimant is a member of a minority group, (2) he was qualified for the position, (3) he was discharged, and (4) the employer replaced him with a person who was not a member of a minority group.\u201d Id., 301 S.E.2d at 82-83.\nOnce a plaintiff establishes a prima facie case, \u201ca presumption arises that the employer unlawfully discriminated against the [plaintiff].\u201d Id. at 138, 301 S.E.2d at 83. Nevertheless, \u201c[t]he showing of a prima facie case is not equivalent to a finding of discrimination.\u201d Id. Instead, it only shifts the burden to the employer \u201cof producing evidence to rebut the presumption of discrimination raised by the prima facie case.\u201d Id. The employer satisfies this burden \u201cif [it] simply explains what [it] has done or produces evidence of legitimate nondiscriminatory reasons. The employer is not required to prove that its action was actually motivated by the proffered reasons . ...\u201d Id.\nWhen the employer articulates a nondiscriminatory reason for its action, \u201cthe plaintiff is then given the opportunity to show that the employer\u2019s stated reasons are in fact a pretext for intentional discrimination.\u201d Id. at 139, 301 S.E.2d at 84. Our Supreme Court stressed, however, that \u201c[t]he trier of fact is not at liberty to review the soundness or reasonableness of an employer\u2019s business judgment when it considers whether alleged disparate treatment is a pretext for discrimination.\u201d Id. at 140, 301 S.E.2d at 84. With respect to this prong of McDonnell Douglas, \u201can employee must prove \u2018both that the reason was false, and that discrimination was the real reason.\u2019 \u201d N.C. Dep\u2019t of Crime Control & Pub. Safety v. Greene, 172 N.C. App. 530, 540, 616 S.E.2d 594, 601 (2005) (quoting St. Mary\u2019s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 422, 113 S. Ct. 2742, 2752 (1993)). As this Court explained: \u201c \u2018It is not enough, in other words, to disbelieve the employer; the factfinder must believe the [employee\u2019s] explanation of intentional discrimination.\u2019 \u201d Id. (quoting St. Mary\u2019s Honor Ctr., 509 U.S. at 519, 125 L. Ed. 2d at 424, 113 S. Ct. at 2754).\nWith respect to the prima facie case required in an age discrimination proceeding brought under the State Personnel Act, this Court has set forth the following elements:\nAn employee can establish a prima 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 was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. An inference of unlawful discrimination arises when an employee is replaced by a substantially younger worker.\nGreene, 172 N.C. App. at 538, 616 S.E.2d at 600-01 (emphasis added) (internal citations and quotation marks omitted).\nI agree with the majority opinion and the trial court that the State Personnel Commission erred in concluding that Dr. Trotter had not met her burden of establishing this prima facie case. The Commission overlooked Greene\u2019s holding that the fourth element only requires a showing that a \u201csubstantially younger\u201d applicant was hired. The evidence is undisputed that Dr. Trotter met the actual final element set forth in Greene.\nLike the majority opinion, I conclude that the trial court erred in reviewing the Commission\u2019s decision regarding the evidence at the pretext stage. Whether or not the reason articulated by the employer is a pretext for intentional discrimination is a question for the trier of fact. The Commission found: \u201cPetitioner is extremely well qualified for the position. However, the evidence put forth by Petitioner falls short of demonstrating that Respondent\u2019s proffered reasons for its actions are false and a mere pretext for race, age and sex discrimination.\u201d This finding must be reviewed under the whole record test.\nI do not agree with the majority opinion\u2019s conclusion that the trial court applied the correct standard of review. Although the trial court recited the whole record test, it proceeded to substitute the court\u2019s own evaluation of the evidence for that of the Commission. Rather than determining whether there was substantial evidence to support the Commission\u2019s finding, the trial court asserted that \u201cthere is ample evidence\u201d that the reasons offered by Mr. Pritchard were false.\nOur Supreme Court has, however, explained:\nA 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. 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.\nWatkins v. N.C. State Bd. of Dental Exam\u2019rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004) (internal citation omitted). In turn, \u201c \u2018[substantial evidence\u2019 is defined as \u2018relevant evidence a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d Id. (quoting N.C. Gen. Stat. \u00a7 150B-2(8b) (2003)).\nThus, it is immaterial whether \u201cample evidence\u201d exists to support the trial court\u2019s view. The question is whether the record contains evidence that a reasonable mind could accept as adequate to support the Commission\u2019s findings. Here, the record contains evidence that would permit a reasonable mind to find that Mr. Pritchard\u2019s reasons were true. Mr. Pritchard explained in his testimony why he found Ms. Seay\u2019s education and experience more directly relevant to the vacant position and why he believed she would be a better fit for the job.\nThe trial court\u2019s and Dr. Trotter\u2019s arguments regarding the credibility of Mr. Pritchard\u2019s testimony were questions for the AU and the Commission to consider. The trial court was not free to revisit those credibility determinations. As this Court stated in Greene, 172 N.C. App. at 536, 616 S.E.2d at 599 (quoting Little v. N.C. State Bd. of Dental Exam\u2019rs, 64 N.C. App. 67, 69, 306 S.E.2d 534, 536 (1983)): \u201cOn review of an agency\u2019s decision, a trial court \u2018is 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.\u2019 \u201d See also N.C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 674, 599 S.E.2d 888, 904 (2004) (holding that it is the agency\u2019s responsibility, and not the court\u2019s, to determine the weight and sufficiency of the evidence and the credibility of the witnesses, to draw inferences from the facts, and to appraise conflicting and circumstantial evidence).\nThe trial court also disregarded the principle that even if the plaintiff presents evidence that the reasons offered were untrue, the trier of fact is still not required to conclude that the reasons were a pretext for intentional unlawful discrimination. See Miller v. Barber-Scotia College, 167 N.C. App. 165, 168, 605 S.E.2d 474, 477 (2004) (\u201c \u2018The ultimate question is whether the employer intentionally discriminated, and proof that the employer\u2019s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that [plaintiff\u2019s] proffered reason ... is correct. It is not enough to disbelieve the defendants here; the fact-finder must believe [plaintiff\u2019s] explanation of intentional race discrimination.\u2019 \u201d (quoting Love-Lane v. Martin, 355 F.3d 766, 788 (4th Cir.), cert. denied, 543 U.S. 813, 160 L. Ed. 2d 18, 125 S. Ct. 49 (2004))). In other words, a trier of fact could find that the reasons were untrue, but were a pretext for some motive other than the alleged discrimination.\nDr. Trotter makes little effort to argue that the actual motive was age discrimination apart from pointing to the age disparity. Indeed, her argument primarily suggests that Mr. Pritchard was implementing his desire to promote from within. Even assuming without deciding, that such a motivation was improper under state regulations, that motive is not age discrimination. I would, therefore, conclude that under the whole record test, the Commission\u2019s determination that Dr. Trotter was not denied employment as a result of her age is supported by substantial evidence. Since the Commission\u2019s finding of no discrimination is supported by substantial evidence, it is not arbitrary and capricious.\nWhile Dr. Trotter may have presented sufficient evidence to permit a finding of discrimination, h\u00e9r evidence did not mandate such a finding. The trial court was not permitted to substitute its view of the evidence for the Commission\u2019s and should have upheld the Commission\u2019s decision. .\n. Although the trial court properly concluded that Dr. Trotter established a prima facie case, I am concerned that its analysis, stating that it is \u201cbeyond question\u201d that DHHS filled the position by hiring a \u201cless-qualified\u201d applicant, amounts to fact finding by the trial court. The elements of a prima facie case required only a determination that Dr. Trotter was qualified for the position. The trial court\u2019s gratuitous assertion that Dr. Trotter was indisputably more qualified than the younger employee improperly resolved an issue of fact.\n. Notably, the trial court pointed to the Commission\u2019s conclusion that Dr. Trotter was \u201cextremely well qualified.\u201d The trial court then translated this finding as meaning that Dr. Trotter was \u201cthe highest qualified candidate for the position\u201d \u2014 a translation contradicted by the remainder of the Commission\u2019s and ALJ\u2019s decision. The trial court was thus substituting its judgment that Dr. Trotter was \u201cthe strongest and highest qualified candidate\u201d for the Commission\u2019s determination that Dr. Trotter was \u201cextremely well qualified.\u201d The fact that someone is well qualified \u2014 even extremely well qualified \u2014 does not necessarily mean that they would be the best fit for the job, one of the criteria apparently applied by Mr. Pritchard. See Enoch v. Alamance County Dep\u2019t of Soc. Servs., 164 N.C. App. 233, 246, 595 S.E.2d 744, 754 (2004) (rejecting argument that superior qualifications necessarily establish pretext for discriminatory motive). It was not the trial court\u2019s role to decide who should have been hired.", "type": "concurrence", "author": "GEER, Judge," } ], "attorneys": [ "Alan McSurely, for petitioner-appellee.", "Attorney General Roy Cooper; by Assistant Attorney General Kathryn J. Thomas, for respondent-appellant." ], "corrections": "", "head_matter": "ALMA CHINITA TROTTER, Petitioner v. NC DEPARTMENT OF HEALTH & HUMAN SERVICES, PUBLIC HEALTH DEPT., Respondent\nNo. COA07-1035\n(Filed 15 April 2008)\n1. Administrative Law\u2014 judicial review of final agency decision \u2014 standard of review \u2014 de novo \u2014 whole record test\nThe superior court did not err in an employment age discrimination case by applying both a de novo review and the whole record test when it substituted new findings of fact for those found in the State Personnel Commission decision because: (1) petitioner\u2019s first allegation was addressed by N.C.G.S. \u00a7 150B-51(b)(4) and was characterized as a law-based inquiry requiring de novo review by the superior court; and (2) petitioner\u2019s second and third allegations were subject to N.C.G.S. \u00a7 150B-51(b)(5) and (6) respectively, requiring review under the whole record test as fact-based inquiries.\n2. Administrative Law\u2014 age discrimination \u2014 judicial review of final agency decision \u2014 de novo standard of review \u2014 conclusions of law\nThe superior court did not err in an employment age discrimination case by concluding the State Personnel Commission (SPC) erred in its conclusions of law because the superior court acted within its statutory authority to review the issue of the petition to the SPC de novo as a law-based inquiry.\n3. Administrative Law\u2014 age discrimination \u2014 judicial review of final agency decision \u2014 whole record review \u2014 substantial evidence determination\nThe superior court erred in an employment age discrimination case by determining that the State Personnel Commission\u2019s (SPC) decision was unsupported by substantial evidence in the record when it reviewed petitioner\u2019s second and third assignments of error because: (1) the whole record test required the superior court to analyze all the evidence in the record in order to determine whether there was' substantial evidence to justify the SPC decision, and if so, the court could not substitute its judgment or engage in new fact finding as it sat as an appellate court; and (2) the superior court improperly found facts and substituted its judgment for the SPC\u2019s decision as between two conflicting views.\nJudge GEER concurring in result only.\nAppeal by respondent from judgment entered 2 May 2007 by Judge Abraham Penn Jones in Orange County Superior Court. Heard in the Court of Appeals 21 February 2008.\nAlan McSurely, for petitioner-appellee.\nAttorney General Roy Cooper; by Assistant Attorney General Kathryn J. Thomas, for respondent-appellant." }, "file_name": "0655-01", "first_page_order": 687, "last_page_order": 700 }