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    "judges": [
      "Judges GEER and BEASLEY concur."
    ],
    "parties": [
      "PAMELA C. GRANGER, Petitioner-Appellant v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent-Appellee"
    ],
    "opinions": [
      {
        "text": "McGEE, Judge.\nRespondent dismissed Petitioner, a career employee, on 19 August 2005, on the basis of Petitioner\u2019s unacceptable personal conduct. Isabelle Jones-Parker (Jones-Parker), an African-American and also an employee of Respondent, who was under the direct supervision of Petitioner, sent Respondent a letter in June 2005 arguing, inter alia, that Petitioner had subjected Jones-Parker to \u201cracism, harassment and workplace hostility.\u201d In response to Jones-Parker\u2019s letter, Respondent appointed three investigators to investigate Petitioner\u2019s allegations: Karen Silverberg, Assistant Dean for Human Resources for the UNC School of Medicine; Gena Carter, UNC Chapel Hill Human Resources Team Leader; and Joanna Carey Smith, a member of the UNC Chapel Hill Office of General Counsel (the investigators). In the course of their investigation, the investigators obtained statements from other employees under Petitioner\u2019s direct supervision. One of those employees, Susan Huey (Huey) stated that she had overheard Petitioner refer to Jones-Parker as \u201cthat n-\u201d as Petitioner was leaving Petitioner\u2019s office. Petitioner, upon being informed of Huey\u2019s statement, admitted she had used the epithet in reference to Parker-Jones, explaining that she knew it was inappropriate. Petitioner stated it had been an expression of her anger due to the investigation, and that she had only used the epithet once, while speaking to her sister on the phone, and had not meant for anyone in the office to overhear it. Another employee, Betty Satterfield (Satterfield), stated that Petitioner had told her Petitioner would never hire another-black person. Satterfield also reported she witnessed Petitioner taking a workbook belonging to Jones-Parker that contained work on Black History month that Jones-Parker was compiling for her church. Satterfield further stated that Petitioner informed her that Petitioner had instructed Petitioner\u2019s boyfriend to dispose of the notebook. In addition, Satterfield stated that Petitioner continually spoke with her concerning the ongoing investigation, attempting to elicit information, and instructing Satterfield how to respond to questioning. Both Huey and Satterfield stated Petitioner created a hostile work environment by continually referring to Petitioner\u2019s contacts with Respondent, and Petitioner\u2019s ability to use those contacts to punish employees who crossed Petitioner. Petitioner admitted to using the racial slur against Jones-Parker, but denied the other allegations.\nThe end result of the investigation was the dismissal of Petitioner. Petitioner completed Respondent\u2019s internal grievance process without success, and filed a petition for a contested case with the Office of Administrative Hearings on 5 January 2006. Administrative Law Judge (ALJ) Beecher Gray heard the case on 20-21 September 2006, and on 22 December 2006, the ALJ filed his decision in which he concluded Petitioner was improperly dismissed. Respondent appealed to the State Personnel Commission. The State Personnel Commission overturned the ALJ\u2019s decision by final decision entered 2 April 2007. Petitioner filed for judicial review, and the matter was heard by the trial court in Wake County Superior Court on 6 December 2007. By order entered 21 April 2008, the trial court affirmed the final decision of the State Personnel Commission. Petitioner appeals.\nIn Petitioner\u2019s arguments, she contends the trial court erred in concluding (1) that one use of a racial slur under these circumstances constituted unacceptable personal conduct, and thus provided just cause for dismissal; (2) that Petitioner\u2019s discussions with other employees about the investigation amounted to interference with that investigation, and thus insubordination; and (3) that Petitioner\u2019s statement that she would not hire another black person, Petitioner\u2019s discarding of Jones-Parker\u2019s Black History notebook, and Petitioner\u2019s creation of a \u201cgeneral sense of intimidation in the workplace\u201d constituted unacceptable personal conduct, and thus just cause for dismissal. We disagree.\nWe observe that . . . subsection l50B-51(c) requires a reviewing court to engage in independent \u201cde novo\u201d fact-finding in all contested cases . . . where the agency fails to adopt the ALJ\u2019s initial decision. Subsection 150B-51(c) provides, in pertinent part: \u201cIn reviewing a final decision in a contested case in which an administrative law judge made a decision, in accordance with G.S. 150B-34(a), and the agency does not adopt the administrative law judge\u2019s decision, the [trial] court shall review the official record, de novo, and shall make findings of fact and conclusions of law. In reviewing the case, the [trial] court shall not give deference to any prior decision made in the case and shall not be bound by the findings of fact or the conclusions of law contained in the agency\u2019s final decision.\u201d N.C.G.S. \u00a7 150B-51(c) (2003) (emphasis added).\nN.C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 662-63, 599 S.E.2d 888, 897 (2004) (internal citations omitted).\nThe [trial] court shall determine whether the petitioner is entitled to the relief sought in the petition, based upon its review of the official record. The [trial] court reviewing a final decision under this subsection may adopt the administrative law judge\u2019s decision; may adopt, reverse, or modify the agency\u2019s decision; may remand the case to the agency for further explanations under G.S. 150B-36(bl), 150B-36(b2), or 150B-36(b3), or reverse or modify the final decision for the agency\u2019s failure to provide the explanations; and may take any other action allowed by law.\nN.C. Gen. Stat. \u00a7 150B-51(c) (2008).\n\u201cWhen this Court reviews appeals from superior court either affirming or reversing the decision of an administrative agency, our scope of review is twofold . ..: (1) whether the superior court applied the appropriate standard of review and, if so, (2) whether the superior court properly applied this standard.\u201d\nCorbett v. N.C. Div. of Motor Vehicles, 190 N.C. App. 113, 118, 660 S.E.2d 233, 237 (2008). \u201cIn cases reviewed under G.S. 150B-51(c), the [trial] court\u2019s findings of fact shall be upheld if supported by substantial evidence.\u201d N.C. Gen. Stat. \u00a7 150B-52 (2008). \u201c \u2018Substantial evidence is such \u201crelevant evidence as a reasonable mind might accept as adequate to support a conclusion,\u201d \u2019 even if contradictory evidence may exist.\u201d Cape Med. Transp., Inc. v. N.C. Dep\u2019t of Health & Human Servs., 162 N.C. App. 14, 22, 590 S.E.2d 8, 14 (2004) (internal citations omitted); see also Rainey v. N.C. Dep\u2019t of Pub. Instruction, 181 N.C. App. 666, 671, 640 S.E.2d 790, 794 (2007), rev. on other grounds by Rainey v. N.C. Dep\u2019t of Pub. Instruction, 361 N.C. 679, 652 S.E.2d 251 (2007); Enoch v. Alamance County Dep\u2019t of Soc. Servs., 164 N.C. App. 233, 250, 595 S.E.2d 744, 757 (2004).\nBecause the case before us involves a situation where the final agency decision rejected the decision of the AU, the appropriate standard of review for the trial court was de novo. Carroll, 358 N.C. at 662-63, 599 S.E.2d at 897. The trial court stated the correct standard of review in its order. [R.p. 181] We must now decide whether the trial court properly applied that standard of review. Corbett, 190 N.C. App. at 118, 660 S.E.2d at 237.\nAt the time of her dismissal, Petitioner was a career state employee as defined by Chapter 126 of the North Carolina General Statutes: the \u201cState Personnel Act.\u201d\n(a) Any employee, regardless of occupation, position or profession may be warned, demoted, suspended or dismissed by the appointing authority. Such actions may be taken against career employees as defined by the State Personnel Act, only for just cause. The provisions of this section apply only to employees who have attained career status. The degree and type of action taken shall be based upon the sound and considered judgment of the appointing authority in accordance with the provisions of this Rule. When just cause exists the only disciplinary actions provided for under this Section are:\n(1) Written warning;\n(2) Disciplinary suspension without pay;\n(3) Demotion; and\n(4) Dismissal.\n(b) There are two bases for the discipline or dismissal of employees under the statutory standard for \u201cjust cause\u201d as set out in G.S. 126-35. These two bases are:\n(1) Discipline or dismissal imposed on the basis of unsatisfactory job performance, including grossly inefficient job performance.\n(2) Discipline or dismissal imposed on the basis of unacceptable personal conduct.\n(c) Either unsatisfactory or grossly inefficient job performance or unacceptable personal conduct as defined in 25 NGAG 1J. 0614 of this Section constitute just cause for discipline or dismissal. The categories are not mutually exclusive, as certain actions-by employees may fall into both categories, depending upon the facts of each case. No disciplinary action shall be invalid solely because the disciplinary action is labeled incorrectly.\n(d) The imposition of any disciplinary action shall comply with the procedural requirements of this Section.\n25 N.C.A.C. 1J.0604 (2008) (emphasis added). Petitioner was dismissed based upon a finding of unacceptable personal conduct, which is defined in relevant part as: \u201cconduct for which no reasonable person should expect to receive prior warning\u201d; \u201cthe willful violation of known or written work rules\u201d; \u201cconduct unbecoming a state employee that is detrimental to state service\u201d; or \u201cthe abuse of... person(s) over whom the employee has charge or to whom the employee has a responsibility].]\u201d 25 N.C.A.C. lJ.0614(i) (2008).\nThe trial court made the following relevant findings of fact: (1) Based on the investigation of Jones-Parker\u2019s complaints, \u201cother employees in the department expressed concerns and difficulties in dealing personally and professionally with Petitioner[.]\u201d (2) Satterfield\u2019s testimony was \u201ccredible and is consistent with other believable evidence in this case,\u201d as was the testimony of Huey. (3) \u201cPetitioner used a racial slur,-(hereinafter, the \u201cn\u201d word), in the workplace.\u201d Petitioner admitted using this slur on one occasion. (4) Huey, a State employee under Petitioner\u2019s direct supervision, overheard Petitioner use the \u201cn\u201d word. (5) Petitioner told Satterfield that Petitioner would \u201cnot hire another black person].]\u201d Satterfield\u2019s testimony is bolstered by Petitioner\u2019s continued attempts to question and direct Satterfield during the investigation, indicating concern on Petitioner\u2019s part with respect to what the content of Satterfield\u2019s testimony would be. (6) \u201cPetitioner discarded a Black History project notebook, which was a personal item belonging to Jones-Parker.\u201d (7) Petitioner violated the investigators\u2019 instructions to avoid speaking to anyone concerning the ongoing investigation, and this violation constituted an act of insubordination. (8) \u201cPetitioner created a general sense of intimidation in the workplace.\u201d (9) \u201cRespondent has adopted and administers policies related to racial harassment, discrimination, unlawful workplace harassment, and violence in the workplace.\u201d (10) \u201cRespondent has a duty and responsibility to act in compliance with all state and federal laws, including workplace discrimination or harassment laws.\u201d And, (11) Respondent acted appropriately in considering the acts of Petitioner\nin light of its interest in fostering a fair workplace free of intimidation based on race, ethnicity, or any other relevant factor, as well as in light of the perception of the public (the \u201cpublic\u201d being other employees in the department or university, or the people of the State of North Carolina), and its interpretation of possible legal actions based on any action of inaction on its own part.\nThe trial court then made the following relevant conclusions of law: (1) Petitioner\u2019s admitted use of the \u201cn\u201d word in reference to Jones-Parker \u201cconstitutes unacceptable personal conduct, for which no prior warning is required.\u201d (2) \u201cPetitioner\u2019s discussions with other employees about their interviews with the investigation group amounted to interference with that investigation and such conduct amounts to insubordination.\u201d (3) \u201cPetitioner\u2019s statement that she would not hire another black person, discarding of Jones-Parker\u2019s personal Black History notebook, and creation of a general sense of intimidation in the workplace, when taken together, constitute unacceptable personal conduct, for which no prior warning is required.\u201d (4) \u201cThe conclusions of law . . . above are individually, and therefore collectively, sufficient to constitute unacceptable personal conduct, and as such, permit Petitioner\u2019s dismissal without any prior disciplinary action.\u201d And, (5) \u201cRespondent has satisfied its burden of establishing just cause for Petitioner\u2019s dismissal.\u201d\nThough contradictory evidence exists for some of the trial court\u2019s findings of fact, we hold that substantial evidence \u2014 evidence a reasonable mind might accept as adequate to support a conclusion\u2014 exists to support the relevant findings of fact listed above. Cape Med. Transp., Inc., 162 N.C. App. at 22, 590 S.E.2d at 14.\nPetitioner admitted using the \u201cn\u201d word in the workplace in reference to Jones-Parker, which remark was overheard by Huey, one of the employees Petitioner supervised. Petitioner initially omitted her use of this racial slur in her interview with the investigators, then changed her statement twice after she was informed another employee had heard her use the racial slur.\nHuey made the following written statements: (1) That after a disagreement with Jones-Parker, Petitioner \u201ccame out of her office and said under her breath \u2018that--\u2019 and that one \u201ccould tell [Petitioner] didn\u2019t care for black people, just by the way she treated them or others that came into the office.\u201d (2) Petitioner\ntold us on many occasions that she knew people on this campus and she could make our lives a living hell if we ever challenged her. She has always thrown around her power at the University[.] I was afraid to apply for another job ... I didn\u2019t want it to get back to her.\n(3) Petitioner \u201cwas very rude and snippy to everyone, she didn\u2019t like to be bothered with questions and that was known.\u201d And, (4) \u201c[f]or the past year or so the ethics in the office have [g]one downhill.\u201d\nPetitioner denied knowing anything about the disappearance of Jones-Parker\u2019s Black History notebook, but Satterfield stated that she saw Petitioner remove the notebook from the cubicle where Jones-Parker had left it, and take it into Petitioner\u2019s office. Petitioner later told Satterfield that Petitioner had instructed Petitioner\u2019s boyfriend to throw it away. Satterfield also made the following statements: (1) Petitioner instructed Satterfield to deny knowing anything about the notebodk when Satterfield spoke with investigators; (2) Petitioner repeatedly questioned Satterfield about the ongoing investigation and instructed Satterfield to withhold information potentially damaging to Petitioner; (3) Petitioner told Satterfield Petitioner would \u201cnever hire another black person in her office\u201d; (4) Petitioner told Satterfield that if Jones-Parker \u201cthought it was hostile before [Jones-Parker took a leave of absence], that [Jones-Parker] had no idea how hostile it could be\u201d; (5) Petitioner indicated that she had many contacts in the university, and that she could use those contacts to \u201cmake it very difficult for someone to pursue other employment.\u201d Petitioner also \u201cbragged that she could get [Jones-Parker] fired. [Petitioner] then told [Satterfield] that [Petitioner] could get in trouble for having told [Satterfield] that information, and that [Satterfield] should not repeat it.\u201d And, (6) Petitioner was \u201cfurious\u201d that another employee would not divulge the content of her interview with investigators, and Petitioner told Satterfield if Satterfield \u201cfound out what was going on that [Satterfield] had better tell [Petitioner].\u201d\nRespondent has policies prohibiting racial harassment or harassment in the workplace. Respondent has a duty to enforce these policies, and to further its stated goal of promoting an \u201cenvironment of' tolerance and mutual respect that must prevail if the University is to fulfill its purposes.\u201d As stated by the Fourth Circuit in Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. Md. 2001):\nFar more than a \u201cmere offensive utteranc\u00e9,\u201d the word \u201c[-]\u201d is pure anathema to African-Americans. \u201cPerhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as \u2018[-]\u2019 by a supervisor in the presence of his subordinates.\u201d\nId. We agree with the Fourth Circuit\u2019s analysis.\nBy uttering this epithet in the workplace, where Petitioner was overheard by one of her subordinates, Petitioner undermined her authority and exposed Respondent to embarrassment and potential legal liability. Further, Petitioner had attempted to obstruct the investigation, which amounted to insubordination; Petitioner stated she would not hire another black person, Petitioner took and disposed of Jones-Parker\u2019s Black History notebook, and she created a \u201cgeneral sense of intimidation in the workplace.\u201d When considered together, we hold the trial court did not err in finding that Petitioner\u2019s actions constituted unacceptable personal conduct for which dismissal was proper.\nArguably, Petitioner\u2019s actions, when considered together, support her dismissal under all four of the following definitions of unacceptable personal conduct: (1) \u201cconduct for which no reasonable person should expect to receive prior warning\u201d; (2) \u201cthe willful violation of known or written work rules\u201d; (3) \u201cconduct unbecoming a state employee that is detrimental to state service\u201d; or (4) \u201cthe abuse of ... a person(s) over whom the employee has charge or to whom the employee has a responsibility!)]\u201d 25 N.C.A.C. lJ.0614(i). We hold Petitioner\u2019s unacceptable personal conduct provided Respondent just cause to terminate Petitioner\u2019s employment without any prior warning or lesser punishment. 25 N.C.A.C. 1J.0604; see also Hilliard v. N.C. Dep't of Corr., 173 N.C. App. 594, 597, 620 S.E.2d 14, 17 (2005) (\u201cOne act of [unacceptable personal conduct] presents \u2018just cause\u2019 for any discipline, up to and including dismissal.\u201d). There is substantial evidence supporting the trial court\u2019s findings of fact, and we hold that the trial court\u2019s findings of fact support its conclusions of law and its 21 April 2008 order. These arguments are without merit.\nAffirmed.\nJudges GEER and BEASLEY concur.",
        "type": "majority",
        "author": "McGEE, Judge."
      }
    ],
    "attorneys": [
      "Law Offices of Michael C. Byrne, PC, by Michael C. Byrne, for Petitioner-Appellant.",
      "Attorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for Respondent-Appellee."
    ],
    "corrections": "",
    "head_matter": "PAMELA C. GRANGER, Petitioner-Appellant v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent-Appellee\nNo. COA08-992\n(Filed 7 July 2009)\n1. Administrative Law\u2014 standard of review \u2014 de novo\nThe appropriate standard of review is de novo where a final agency decision rejects the decision of the administrative law judge.\n2. Public Officers and Employees\u2014 termination of career state employee \u2014 unacceptable personal conduct\nThe trial court did not err by affirming the final decision of the State Personnel Commission to dismiss petitioner career state employee on the basis of unacceptable personal conduct because: (1) petitioner admitted to using the \u201cn\u201d word in the workplace in reference to an African-American employee under the direct supervision of petitioner; (2) by uttering this epithet in \u2022 the workplace, where petitioner was overheard by one of her subordinates, petitioner undermined her authority and exposed respondent university to embarrassment and potential legal liability; (3) petitioner attempted to obstruct the investigation, which amounted to insubordination, petitioner stated she would not hire another black person, petitioner disposed of the African-American employee\u2019s Black History notebook, and petitioner created a general sense of intimidation in the workplace; and (4) petitioner\u2019s actions, when considered together, supported her dismissal under all four of the definitions of unacceptable personal conduct under 25 N.C.A.C. lJ.0614(i) including conduct for which no reasonable person should expect to receive prior warning, the willful violation of known or written work rules, conduct unbecoming a state employee that is detrimental to state service, or the abuse of a person over whom the employee has charge or to whom the employee has a responsibility.\nAppeal by Petitioner from order entered 21 April 2008 by Judge R. Allen Baddour, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 10 March 2009.\nLaw Offices of Michael C. Byrne, PC, by Michael C. Byrne, for Petitioner-Appellant.\nAttorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for Respondent-Appellee."
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}