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  "name": "GLORIA WOODARD, Petitioner v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent",
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    "judges": [
      "Judges STEPHENS and HUNTER, JR. concur."
    ],
    "parties": [
      "GLORIA WOODARD, Petitioner v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent"
    ],
    "opinions": [
      {
        "text": "BEASLEY, Judge.\nPetitioner (Gloria Woodard) appeals from the trial court\u2019s order, which affirmed an order of the State Personnel Commission (SPC), upholding Respondent\u2019s termination of Petitioner\u2019s employment. We affirm.\nIn 2006 Petitioner was employed as a Lieutenant and Assistant District Supervisor in Respondent\u2019s Motor Vehicles Division. Petitioner\u2019s position required her to conduct on-site audits of automobile dealerships. On 18 April 2006, Petitioner was dismissed from her employment for \u201cunacceptable personal conduct.\u201d She received a dismissal letter informing her that she had been fired for \u201cwillful violation of known or written work rules\u201d; \u201cconduct unbecoming a State employee [and] detrimental to state service\u201d; and \u201cconduct for which no reasonable person should expect warning prior to dismissal.\u201d The dismissal letter further informed Petitioner of the \u201cspecific conduct issues\u201d for which she was terminated:\n1. Petitioner had admitted conducting at least fifteen (15) dealer audits from the office, without visiting the dealership premises, and then falsified her records of these inspections.\n2. Petitioner had behaved in an \u201cembarrassing and intimidating manner\u201d towards a subordinate employee.\nThe dismissal letter also informed Petitioner that her actions violated \u201cDMV License and Theft Bureau\u2019s Policy and Procedures, General Order 60, XVI, B, C, Periodic Dealer Compliance Audits; General Rules of Conduct, General Order 24, V, F, Conduct and Behavior; and General Order 24, V, F, Respect for Fellow Officers.\u201d\nOn 21 April 2006 Petitioner appealed her dismissal pursuant to Respondent\u2019s internal grievance procedures, and alleged that her dismissal was \u201cboth racially discriminatory and retaliatory[.]\u201d By letter dated 27 April 2006, Respondent acknowledged Petitioner\u2019s appeal of her dismissal and stated its intention to investigate her claims. On 12 May 2006 Respondent\u2019s Human Resources Director informed Petitioner that its \u201cinvestigation [had] resulted in no evidence to substantiate [her] allegation.\u201d Petitioner then sought a grievance hearing before a panel of NCDOT employees. On 1 August 2006 Respondent\u2019s Chief Deputy Secretary wrote Petitioner of his decision to uphold her dismissal. The Chief Deputy\u2019s letter stated that:\nYour failure to make on sight visits to the dealerships and then filling out the audit forms as if you had, is unacceptable personal conduct, which alone justifies your dismissal. As an additional and separate issue. . . .\nYour treatment of [your co-worker] as outlined above constitutes unacceptable personal conduct, which alone justifies your dismissal.\nOn 7 August 2006 Petitioner filed a petition seeking a hearing before the North Carolina Office of Administrative Hearings (OAH). Petitioner asserted that Respondent had \u201cunlawfully dismissed Petitioner from employment without just cause\u201d and that she had \u201cnot commit[ted] any alleged wrongdoing.\u201d\nIn addition to seeking relief through Respondent\u2019s internal grievance procedures:\nOn May 19, 2006, the [Petitioner] filed her Complaint in . . . Mecklenburg County, North Carolina, alleging claims for race-based discrimination and retaliation in violation of Title VII, 42 U.S.C. \u00a7 1983, and the North Carolina and United States Constitutions. On June 26, 2006, the Defendants removed the state court action to federal court.\nWoodard v. N.C. DOT, 2007 U.S. Dist. LEXIS 66873 at 8 (W.D.N.C. Sept. 7, 2007). Petitioner\u2019s hearing before the OAH was stayed pending the outcome of Petitioner\u2019s federal claim. On 7 September 2007 a United States Magistrate Judge granted summary judgment for Respondent in Woodard, and dismissed Petitioner\u2019s claim. The Court\u2019s opinion held in pertinent part:\n[On] March 17, 2006, the Plaintiff\u2019s behavior toward a former subordinate, Paula Norman, was viewed as \u201cembarrassing and intimidating.\u201d . . . [I]t is the history of the Plaintiff\u2019s disrespectful and intimidating behavior toward Ms. Norman in 2004, when the [Petitioner] supervised her, which quite reasonably caused this incident to be perceived as negatively as it was.\nOn March 30, 2006, the Plaintiff admitted to her District Supervisor . . . that she had been conducting dealer audits from the Charlotte District Office rather than actually visiting the premises of the dealerships as required. The Plaintiff completed fifteen audits in this unauthorized manner \u2014 and on each occasion submitted official reports containing false information. Plaintiff does not deny that she completed off-site audits[.]\n[T]he Plaintiff admitted to a major problem with her job performance. She was completing dealership audits dishonestly. She has presented no evidence besides her own speculation that other employees completed audits in this manner, and that this somehow excuses her dishonesty.\nId. at 4-6, 17.\nOn 5 December 2007 Respondent filed a summary judgment motion with the OAH, asserting that \u201cthere is no genuine issue as to any material fact. . . and [Respondent] is entitled to judgment as a matter of law.\u201d In its memorandum in support of its summary judgment motion, Respondent argued that the doctrine of collateral estoppel should be applied to bar relitigation of factual issues common to both Petitioner\u2019s federal case and her OAH claim.\nOn 13 February 2008, an OAH Administrative Law Judge (AU) issued a decision recommending that the State Personnel Commission (SPC) grant Respondent\u2019s motion for summary judgment. The AU issued an amended decision on 27 February 2008, correcting a typographical error. Petitioner filed exceptions to the AU\u2019s decision, and on 29 May 2008 the SPC issued a final agency decision affirming Petitioner\u2019s dismissal. Petitioner sought judicial review of the SPC\u2019s decision. On 25 November 2008 the trial court entered an order affirming the SPC\u2019s decision to uphold the AU. Petitioner has appealed from this order.\nStandard of Review\nN.C. Gen. Stat. \u00a7 150B-51(b) (2007) allows atrial court to reverse or modify an agency\u2019s decision if the substantial rights of the petitioner 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).\n\u201cIn cases appealed from administrative tribunals, we review questions of law de novo and questions of fact under the whole record test.\u201d Diaz v. Division ofSoc. Sens., 360 N.C. 384, 386, 628 S.E.2d 1, 2 (2006) (citations omitted). \u201cAn appellate court reviewing a superior court order regarding an agency decision \u2018examines 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.\u2019 \u201d Holly Ridge Assocs., LLC v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 361 N.C. 531, 535, 648 S.E.2d 830, 834 (2007) (quoting ACT-t/P Triangle v. Comm\u2019n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)).\nPetitioner argues first that \u201cthe tribunals below violated [her] right to due process\u201d on the grounds that she \u201cwas denied notice of the basis of [Respondent\u2019s] dispositive motion and was denied the opportunity to be heard on it.\u201d We disagree.\nAs discussed above, Respondent filed a summary judgment motion with the OAH, in which it asserted that there were no genuine issues of material fact and that Respondent was entitled to summary judgment as a matter of law. In a memorandum of law supporting its motion, Respondent urged that the findings of the United States Magistrate Judge in Woodard were binding on the OAH, based on the doctrine of collateral estoppel. In its decision granting Respondent\u2019s summary judgment motion, the ALJ ruled that \u201cRespondent proved there are no genuine issues of material fact that Respondent had just cause to dismiss Petitioner from employment.\u201d\nOn appeal, Petitioner characterizes the ALJ\u2019s determination that summary judgment was proper because there were no genuine issues of material fact as a \u201cnew theory of the case.\u201d Petitioner contends that she was subjected to \u201ctrial by ambush\u201d and that her right to due process was violated because she had no notice or opportunity to be heard regarding \u201cthe new argument advanced by the ALJ.\u201d However, Petitioner does not dispute that Respondent filed a summary judgment motion wherein it asserted the absence of any genuine issues of material fact. Nor does Petitioner challenge the familiar rule that summary judgment is properly granted \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2007).\nPetitioner articulates no theory to explain how the AU\u2019s recitation of the statutory standard for summary judgment could be construed as a \u201cnew argument advanced by the ALL\u201d This assignment of error is overruled.\nPetitioner next argues that the trial court erred in affirming the State Personnel Commission\u2019s Decision and Order which adopts the AU\u2019s Findings of Fact No. 10(b), (c), and (d), on the grounds that these findings of fact \u201cexceed the scope of the dismissal letter, in violation of N.C. Gen. Stat. \u00a7 126-35.\u201d We disagree.\nThe challenged findings of fact state that:\n10. (b) Petitioner filed 15 audit reports containing false information that implied Petitioner inspected the premises subject to those audits. Petitioner admitted she never requested permission from her supervisor to conduct audits in such a manner.\n10. (c) Robinson also noted that Petitioner violated written work rules, and engaged in unacceptable conduct by belittling Paula Norman, Petitioner\u2019s subordinate employee, in front of other employees, and by humiliating Norman in a manner that brought disgrace upon the License and Theft Bureau.\n10. (d) Attached to Robinson\u2019s affidavit were EEO Consultant George Nixon\u2019s notes from his interviews during the internal investigation. Mr. Nixon verified his interview notes by signing the notes. He noted that Purnell Sowell, Petitioner\u2019s supervisor, heard Petitioner \u201cspeak down\u201d to Ms. Norman in front of others, made\u2019 Norman cry on several occasions, and embarrassed Norman in front of her co-workers. In addition, Mr. Nixon interviewed Petitioner, and noted that Petitioner admitted she did audits in the office to save time as her office does 1200 audits per year. She admitted that she knew she violated DMV policy by doing so. She admitted telling her supervisor, Purnell, that she was doing audits when he saw her doing audits in her office.\nPetitioner contends that the \u201cdismissal letter does not state the events described in the Decision, FOF # 10(b), (c) and (d) as reasons for [Petitioner\u2019s] dismissal[,]\u201d and asserts that the \u201ctermination letter merely asserts that [Petitioner] said hello to a co-worker at a funeral.\u201d\nWe first note that the AU\u2019s finding of fact 10(d) is not actually a finding of the ALJ, but a summary of some of the evidence before it. See, e.g., In re L.B., 184 N.C. App. 442, 450, 646 S.E.2d 411, 415 (2007) (\u201c \u2018verbatim recitations of the testimony of each witness do not constitute findings of fact by the trial judge\u2019 \u201d) (quoting In re Green, 67 N.C. App. 501, 505 n.1, 313 S.E.2d 193, 195 (1984)). In the instant case, the only \u201cfact\u201d found by the AU in Finding 10(d) is that EEO Consultant George Nixon made certain notes of his interviews and investigation. Petitioner neither disputes the accuracy of the AU\u2019s summary of Nixon\u2019s notes, nor demonstrates prejudice arising from . the inclusion of this recitation.\nThe dismissal letter states in relevant part that:\nAfter careful consideration of all the information made ayailable to me, including your comments at the pre-disciplinary conference. ... I have decided to dismiss you for unacceptable personal conduct. The specific conduct issues that represent the basis for the dismissal are:\n1. Willful violation of known or written work rules[.]\n2. Conduct unbecoming a State employee detrimental to state service^]\n3. Conduct for which no reasonable person should expect warning prior to dismissal[.]\nOn March 30, 2006, you admitted to your District Supervisor, Mr. Purnell Sowell, that you had been conducting dealer audits at the Charlotte District Office in lieu of actually visiting the premises of the dealerships. ... By conducting, recording and reporting these inspections improperly, you falsified your record of inspections. At least fifteen (15) audits were conducted in this manner.\nOn March 17, 2006, while attending a visitation service, your actions toward Auditor Paula Norman, a subordinate employee, were perceived as embarrassing and intimidating. . . . Two fellow supervisors witnessed these actions.\nThe AU\u2019s findings of fact 10(b) and (c) address the same issues that are discussed in the dismissal letter. We conclude that Petitioner\u2019s contention, that the dismissal letter \u201cmerely asserts that Ms. Woodard said hello to a co-worker at a funeral\u201d is a significant mischaracterization of the letter\u2019s contents.\nFinally, Petitioner argues that the trial court erred by affirming the summary judgment order \u201cbecause a review of the record reveals material disputes of fact.\u201d We disagree.\nPetitioner was dismissed from employment for two separate aspects of her job performance: her violation of Respondent\u2019s rule requiring audits to be conducted on-site, and her treatment of coworker Paula Norman. In his letter upholding Petitioner\u2019s dismissal, Respondent\u2019s Chief Deputy Secretary states that either of these transgressions \u201cis unacceptable personal conduct, which alone justifies your dismissal.\u201d\nPetitioner neither asserts any issue of fact regarding her behavior towards Ms. Norman, nor argues that her treatment of Norman, standing alone, does not constitute just cause for her dismissal.\nRegarding Petitioner\u2019s violation of Respondent\u2019s rules for conducting audits, Petitioner does not dispute the existence of a rule requiring audits to be conducted on site, and does not deny violation of this rule. Nor does Petitioner argue that willful violation of this rule and intentional falsification of her audit records does not constitute just cause for dismissal. Instead, Petitioner posits the existence of an \u201cissue of fact\u201d regarding her perception that other employees had violated the same rule. She asserts that, if she violated Respondent\u2019s rule \u201cbecause she observed others doing it and concluded that it was acceptable to perform the audits in this manner, then she was not being dishonest.\u201d Petitioner fails to offer any legal precedent or logical reason to suggest that her own dishonesty would be mitigated by her alleged belief that other employees also violated Respondent\u2019s rules. This assignment of error is overruled.\nWe find it necessary to remind Petitioner\u2019s counsel that N.C. Gen. Stat. \u00a7 1A-1, Rule 11(a) (2007) provides in pertinent part that:\nEvery pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name[.] . .. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law[.] ... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction[.]\nFor the reasons discussed above, we conclude that the trial court did not err and that its order should be\nAffirmed.\nJudges STEPHENS and HUNTER, JR. concur.",
        "type": "majority",
        "author": "BEASLEY, Judge."
      }
    ],
    "attorneys": [
      "Schiller & Schiller, PLLC, by David G. Schiller, for Petitioner-Appellant.",
      "Attorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton, for Respondent-Appellee."
    ],
    "corrections": "",
    "head_matter": "GLORIA WOODARD, Petitioner v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent\nNo. COA09-217\n(Filed 17 November 2009)\n1. Constitutional Law\u2014 due process \u2014 notice\u2014opportunity to be heard\nThe administrative law judge (ALJ) did not violate petitioner\u2019s right to due process in a state employee termination case where the judge granted summary judgment for respondent and petitioner contended that she was denied notice of the basis for the motion and the opportunity to be heard. Petitioner did not explain how the ALJ\u2019s recitation of the statutory standard for summary judgment could be construed as a new argument.\n2. Public Officers and Employees\u2014 termination \u2014 findings of fact \u2014 sufficiency of evidence \u2014 dismissal letter\nThe trial court did not err in a state employee termination case by affirming the State Personnel Commission\u2019s decision and order adopting the administrative law judge\u2019s findings where the findings to which petitioner objected constituted a summary of the evidence or significantly mischaracterized the underlying dismissal letter.\n3. Public Officers and Employees\u2014 termination \u2014 failure to follow rules \u2014 belief that others violated rules\nSummary judgment was correctly granted against petitioner in a state employee termination case where petitioner contended that there was an issue of fact concerning her perception that others were also violating respondent\u2019s rules. She did not offer legal precedent or logical reason to suggest that her own dishonesty would be mitigated by her alleged belief that others also violated those rules.\nAppeal by Petitioner from judgment entered 25 November 2008 by Judge Howard E. Manning, Jr., in Wake County Superior Court. Heard in the Court of Appeals 3 September 2009.\nSchiller & Schiller, PLLC, by David G. Schiller, for Petitioner-Appellant.\nAttorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton, for Respondent-Appellee."
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