{ "id": 4343056, "name": "CAPTAIN CHARLES W. McADAMS, Plaintiff v. NORTH CAROLINA DEPARTMENT of TRANSPORTATION, Defendant", "name_abbreviation": "McAdams v. North Carolina Department of Transportation", "decision_date": "2011-09-06", "docket_number": "No. COA11-102", "first_page": "429", "last_page": "442", "citations": [ { "type": "official", "cite": "215 N.C. App. 429" } ], "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": "634 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636688, 12636689, 12636687 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/634/0887-02", "/se2d/634/0887-03", "/se2d/634/0887-01" ] }, { "cite": "625 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635044 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/625/0567-01" ] }, { "cite": "627 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635366, 12635367 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/627/0462-01", "/se2d/627/0462-02" ] }, { "cite": "619 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634057 ], "year": 2005, "pin_cites": [ { "page": "864", "parenthetical": "quoting Carroll, 358 N.C. at 659-60, 599 S.E.2d at 894-95" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0862-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-27", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 126-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "360 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797014 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0585-01" ] }, { "cite": "175 N.C. App. 698", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353130 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc-app/175/0698-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-38", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "118-19" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "year": 1994, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "392", "parenthetical": "quoting Amanini v. N.C. Dep't of Human Resources, 114 N.C. App. 668, 675,443 S.E.2d 114, 118-19 (1994)" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "year": 1997, "pin_cites": [ { "page": "706", "parenthetical": "quoting Amanini v. N.C. Dep't of Human Resources, 114 N.C. App. 668, 675,443 S.E.2d 114, 118-19 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "360 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787206 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0396-01" ] }, { "cite": "174 N.C. App. 118", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350640 ], "year": 2005, "pin_cites": [ { "page": "121", "parenthetical": "quoting Carroll, 358 N.C. at 659-60, 599 S.E.2d at 894-95" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0118-01" ] }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "894", "parenthetical": "citations omitted" }, { "page": "894-95" } ], "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": "citations omitted" }, { "page": "659-60" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-34", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-36", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 126-22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 972, "char_count": 34214, "ocr_confidence": 0.746, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14737615976838805 }, "sha256": "c50c68ebd6036771fb417d34a4c2cc88fc6c9b71c0efeea2b41d3415776dfd4f", "simhash": "1:fabb20d3f93f66d2", "word_count": 5242 }, "last_updated": "2023-07-14T18:49:09.394868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and McCULLOUGH concur." ], "parties": [ "CAPTAIN CHARLES W. McADAMS, Plaintiff v. NORTH CAROLINA DEPARTMENT of TRANSPORTATION, Defendant" ], "opinions": [ { "text": "ERVIN, Judge.\nDefendant North Carolina Department of Transportation appeals from orders reversing a determination by the State Personnel Commission to the effect that it lacked jurisdiction over Plaintiffs claim of harassment or retaliation based on race, adopting the Commission\u2019s alternative findings and conclusions to the effect that Plaintiff had been subject to retaliation on the basis of race, and ordering Defendant to take various steps intended to compensate Plaintiff for the salary and retirement benefits that he lost as a result of Defendant\u2019s conduct. On appeal, Defendant argues that the trial courts erred by concluding (1) that the Commission had jurisdiction over Plaintiff\u2019s claim and (2) that the Commission\u2019s alternative determination awarding relief to Plaintiff should be affirmed. After careful consideration of Defendant\u2019s challenges to the trial courts\u2019 orders in light of the record and the applicable law, we conclude that the trial courts\u2019 orders should be affirmed.\nI. Factual Background\nPlaintiff, an African-American male, was a career state employee as defined in N.C. Gen. Stat. \u00a7 126-1.1. In 2000, Plaintiff unsuccessfully applied for a vacant District Supervisor position. After failing to receive the requested promotion, Plaintiff initiated a contested case proceeding before the Office of Administrative Hearings in which he alleged that his failure to receive that promotion stemmed from impermissible racial discrimination. At the conclusion of the contested case proceeding, Administrative Law Judge James L. Conner determined that Defendant had, in fact, discriminated against Plaintiff by hiring a less-qualified white candidate for the District Supervisor position instead of offering the position to Plaintiff. As a result, Judge Conner recommended that Defendant be required to place Plaintiff in the District Supervisor\u2019s position for which he had originally applied and to provide him with all of the back pay, increased compensation, and benefits to which he would have been entitled in the absence of Defendant\u2019s discriminatory conduct. According to prevailing North Carolina law, however, Judge Conner\u2019s recommended decision was subject to review by the Commission, which would make a final decision concerning the merits of Plaintiff\u2019s claim.\nOn 18 November 2002, a written warning alleging \u201cunsatisfactory job performance\u201d was placed in Plaintiff\u2019s personnel file. In addition, instead of placing Plaintiff into the District Supervisor position for which he had originally applied, Defendant placed Plaintiff into a vacant Catawba County position and then transferred that position to Forsyth County, effectively leaving the individual who had been hired in lieu of Plaintiff in the position for which Plaintiff should have been hired. As a result, Plaintiff initiated another contested case proceeding and obtained the issuance of a preliminary injunction requiring Defendant to place Plaintiff in the proper District Supervisor\u2019s position and prohibiting Defendant from taking any adverse employment action against him pending a hearing on his retaliation claim. More specifically, Defendant was ordered to put Plaintiff into the Forsyth County District Supervisor\u2019s position, to \u201ctake no action to adversely affect [Plaintiff\u2019s] employment pending appeal,\u201d and to \u201ctreat [Plaintiff] in good faith and with the same concern it shows for white senior officers.\u201d After the issuance of the preliminary injunction, Defendant placed Plaintiff into the proper position, paid the necessary back pay and other compensation, and took other actions consistent with Judge Conner\u2019s decision in the initial recommended decision, a series of events that led Plaintiff to voluntarily dismiss his original contested case proceeding. On 14 November 2003, Judge Conner made permanent the \u201cexecutory provisions\u201d of the preliminary injunction prohibiting Defendant from engaging in further acts of discrimination against Plaintiff. On 5 May 2004, the Commission upheld Judge Conner\u2019s decision.\nOn 27 July 2004, Plaintiff received a written warning citing him for \u201cunacceptable personal conduct\u201d based upon his decision to copy his attorney on an e-mail that he sent to his superiors. In that e-mail, Plaintiff complained about the manner in which he had been treated in connection with the disciplining of another employee, whose name he mentioned, allegedly in violation of the prohibition against the release of confidential personnel information set out in N.C. Gen. Stat. \u00a7\u00a7 126-22 and 126-24. On 3 August 2004, Plaintiff sent a memorandum to the director of his department in which he requested that the written warning be removed from his personnel file on the grounds that the written warning contained statements that were \u201cdeceitful [and] which [would] cause harm to [his] character.\u201d Plaintiffs request was denied on 5 August 2004.\nOn 1 February 2005, Plaintiff renewed his request that Defendant remove the written warning from his file. According to Plaintiff, the warning was \u201cinaccurate and misleading.\u201d At the time that he made this request, Plaintiff suggested that the Department\u2019s conduct with respect to the written warning violated the provisions of the earlier injunction that required Defendant to afford Plaintiff with the same respect shown to white senior officers.\nOn 18 April 2005, Plaintiff initiated a contested case proceeding with the Office of Administrative Hearings in which he alleged that his personnel file contained inaccurate and misleading information and that he had been the victim of racially-based harassment or retaliation. According to Plaintiff, the 27 July 2004 warning constituted a violation of the injunction precluding Defendant from \u201ctak[ing] [any] action [that] adversely affect[ed] [Plaintiff\u2019s] employment pending appeal\u201d and requiring Defendant to \u201ctreat [Plaintiff] in good faith and with the same concern it shows for white senior officers.\u201d In his petition, Plaintiff noted that he had requested removal of the written warning on 1 February 2005, that more than sixty days had passed since the submission of his request without any response from Defendant, and that he was entitled to seek relief by initiating a contested case proceeding pursuant to N.C. Gen. Stat. \u00a7 126-36. On 2 November 2006, Administrative Law Judge Fred G. Morrison Jr., granted Defendant\u2019s motion to dismiss Plaintiff\u2019s petition on the grounds that Plaintiff had failed to file his petition for a contested case proceeding in a timely manner, failed to submit his complaint to the agency prior to initiating a contested case proceeding, and failed to allege sufficient facts to establish that he had been subjected to unlawful workplace harassment or retaliation.\nOn 6 December 2006, Plaintiff sought judicial review of Judge Morrison\u2019s decision pursuant to N.C. Gen. Stat. \u00a7 150B-43. On 1 August 2008, Judge Cressie H. Thigpen, Jr., entered an order addressing the issues raised in Plaintiff\u2019s petition for judicial review. First, Judge Thigpen affirmed Judge Morrison\u2019s dismissal of Plaintiff\u2019s request for removal of the written warning that he had received on 27 July 2004 from his personnel file on the grounds that Plaintiff had failed to challenge the written warning in a timely fashion. As a result, Judge Thigpen did not address the substantive issue of whether the information contained in the written warning was, in fact, inaccurate or misleading. Secondly, Judge Thigpen found, with respect to Plaintiff\u2019s claim of racial harassment, that:\n8. N.C. Gen. Stat. \u00a7 126-34 provides that any State employee having a grievance arising out of or due to the employee\u2019s employment who alleges unlawful harassment because of the employee\u2019s race shall submit a written complaint to the employee\u2019s department or agency. The department or agency shall thereafter have 60 days within which to take appropriate remedial action. If the employee is not satisfied with the department or agency\u2019s response to the complaint, the employee shall have the right to appeal directly to the State Personnel Commission.\n9. Petitioner\u2019s memorandum dated February 1, 2005, compared his treatment with treatment of senior white officers. This complaint, coupled with the prior history existing between Petitioner and Respondent, was sufficient to place Respondent on notice that Petitioner was complaining of either harassment or retaliation, or both, based on his race.\n10. The February 1, 2005 memorandum met the requirement of N.C. Gen. Stat. \u00a7 126-34 that Petitioner submit a written complaint to the employee\u2019s department or agency prior to appealing such matter.\n11. Respondent did not respond to Petitioner\u2019s February 1, 2005 memorandum.\n12. The matters complained of in Petitioner\u2019s February 1, 2005 memorandum and the facts alleged in Petitioner\u2019s Petition For a Contested Case Hearing with attachment were sufficient to withstand a[n N.C. Gen. Stat. \u00a7 1A-1, Rule] 12(b)(6) motion.\nBased upon these and other' findings of fact, Judge Thigpen concluded as a matter of law that:\nBased on the foregoing, the Order of Dismissal [and] Final Decision regarding the Written Warning dated July 27, 2004 and Respondents responses dated July 29, 2004 and August 5, 2004 is Affirmed.\nIT IS FURTHER ORDERED that the Order of Dismissal [and] Final Decision regarding the issue of harassment and retaliation based on race is Remanded to the Office of Administrative Hearings for a hearing and further proceedings on that issue.\nUpon remand from Judge Thigpen\u2019s decision, Plaintiff\u2019s harassment and retaliation claim was heard before Judge Morrison. On 14 August 2009, Judge Morrison entered a recommended decision in which he concluded, in relevant part, that Plaintiff \u201cha[d] not convinced [him] by the greater weight of the evidence presented that he was the victim of harassment or retaliation based on race\u201d and that, as a result, Plaintiff was \u201cnot entitled to any further relief from [Defendant].\u201d On 10 December 2009, the Commission issued a Final Decision in which it determined that:\n[T]hat there is no jurisdiction for a claim for unlawful workplace harassment or retaliation based on race or any other basis where a petitioner has not complied with the procedures required under [N.C. Gen. Stat. \u00a7\u00a7] 126-34 and 126-37 and that any such claim should have been remanded to the agency for the completion of the internal grievance policies required by statute and thus exhaustion of Petitioner\u2019s administrative remedies.\nIn addition, the Commission stated that, \u201cshould a superior forum disagree with the Commission, the Commission makes the following Alternative Order Findings of Fact.\u201d At that point, the Commission adopted the majority of Judge Morrison\u2019s factual findings. However, the Commission did modify Finding of Fact No. 13 so as to \u201celiminate a statement which is actually a conclusion of law and to include findings of fact that reflect the evidence contained in the whole record.\u201d Although the Commission adopted Judge Morrison\u2019s conclusion that the parties were \u201cbefore the Office of Administrative Hearings pursuant to an Order from Wake County Superior Court\u201d and had \u201creceived proper notice of the hearing in this matter,\u201d it rejected Judge Morrison\u2019s conclusion that Plaintiff \u201cha[d] not persuaded [him] by the greater weight of the evidence presented that he was the vietim of harassment or retaliation based on race.\u201d Instead, the Commission concluded that:\n2. The facts relating to [Plaintiffs] conduct and to the disciplinary action taken by Director Robinson relating to Major Edwards and [Plaintiffs] interactions and the email sent by [Plaintiff] show that [Plaintiffs] written warning was awarded in retaliation for his taking protected activity, i.e. protesting his circumvention in the disciplinary process of another employee which he perceived to be treating him differently from other District Supervisors. [Plaintiff] was not required to produce evidence that he was, in fact, treated differently in order to prevail on a claim that he was retaliated against. The evidence showed that [Plaintiff] was awarded disciplinary action almost immediately after he alleged that he was being treated differently from other District Supervisors. Thus, [Plaintiff] has shown that he suffered adverse action, i.e. a written warning, from his employer very close in time after engaging in protected activity, i.e. protesting treatment that he perceived to be different from other similarly situated employees, and that his protests were precisely the reason for his discipline.\n3. [Plaintiff] met his burden of proving a prima facie case of illegal workplace retaliation. [Defendant] failed to produce sufficient evidence of a legitimate, non-retaliatory reason for the disciplinary action. Thus, [Plaintiffs] written warning should be removed as illegal workplace retaliation.\nOn 12 January 2010, Plaintiff sought judicial review of the Commission\u2019s decision that it lacked jurisdiction over his claim and urged the Court to adopt the Commission\u2019s alternative decision. On 31 August 2010, Judge Stephens entered an order concluding that the Commission had erred by deciding that it lacked jurisdiction over Plaintiff\u2019s harassment and retaliation claim, adopting the Commission\u2019s alternative findings and conclusions, and ordering \u201cappropriate remedies for illegal workplace retaliation under the circumstances\u201d of the case. In his order, Judge Stephens stated that\n.... Two years ago, [the Superior Court, in an order entered by Judge Thigpen] analyzed the unique and lengthy history of this case and found, in an order dated August 1, 2008, that [Plaintiff\u2019s] February 1, 2005 complaint to his superiors comparing his treatment to the treatment of senior white officers, coupled with the prior history existing between himself and [Defendant], was sufficient to place [Defendant] on notice that [Plaintiff] was complaining of either harassment or retaliation, or both, based on his race. This Court found, in its 2008 analysis of [the] jurisdictional question in this same case, that [Plaintiffs] complaint of February 1, 2005 met [N.C. Gen. Stat.] \u00a7 126-34\u2019s conditions precedent because [Defendant] \u201cdid not respond\u201d to it. This Court then remanded the case to the Office of Administrative Hearings [] for hearing on the retaliation and harassment issues. . . . [T]hese findings . . . are the law of the case. The [Office of Administrative Hearings] and [Commission] had jurisdiction over the claim of retaliation, and the [Commission] decision that it lacked jurisdiction is in error.\nIn addition, Judge Stephens \u201cadopt[ed] the[] decisive facts and conclusions in the [Commission\u2019s] Alternative Order as its own findings and conclusions.\u201d As a result, Judge Stephens ordered that this case be \u201cremanded to the [] Commission with instruction that [Defendant] shall, without delay, compute the additional amount [Plaintiff] should have received in the absence of the written warning wrongfully placed in his personnel file and pay Petitioner such additional amount\u201d and \u201cmake the necessary contributions to [Plaintiff\u2019s] Retirement Fund account... to reflect the new \u2018last four years base,\u2019 consistent with this order.\u201d Defendant noted an appeal to this Court from the orders entered by Judge Thigpen and Judge Stephens.\nII. Legal Analysis\nA. Standard of Review\nThe orders from which Defendant has appealed were entered in connection with judicial review of the Commission\u2019s final agency decision. According to N.C. Gen. Stat. \u00a7 150B-43, \u201c[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision[.]\u201d N.C. Gen. Stat. \u00a7 150B-51(b) authorizes a trial 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 [N.C. Gen. Stat. \u00a7\u00a7] 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or\n(6) Arbitrary, capricious, or an abuse of discretion.\n\u201cOn judicial review of an administrative agency\u2019s final decision, the substantive nature of each assignment of error dictates the standard of review.\u201d N.C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004) (citations omitted). As a result:\nThe first four grounds are \u201claw-based\u201d inquiries warranting de novo review. The latter two grounds are \u201cfact-based\u201d inquiries warranting review under the whole-record test. Under de novo review, a court \u201cconsiders the matter anew[] and freely substitutes its own judgment for the agency\u2019s.\u201d Under the whole-record test, a court \u201cexamines all the record evidence ... to determine whether there is substantial evidence to justify the agency\u2019s decision.\u201d\nTrayford v. N.C. Psychology Bd., 174 N.C. App. 118, 121, 619 S.E.2d 862, 864 (2005) (quoting Carroll, 358 N.C. at 659-60, 599 S.E.2d at 894-95), aff\u2019d, 360 N.C. 396, 627 S.E.2d 462 (2006). \u201cAs to appellate review of a superior court order regarding an agency decision, \u2018the 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.\u2019 \u201d ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dep\u2019t of Human Resources, 114 N.C. App. 668, 675,443 S.E.2d 114, 118-19 (1994)).\nB. Substantive Legal Issues\n1. Jurisdiction over Plaintiff\u2019s Claim\nFirst, Defendant argues that Judge Thigpen erred by remanding Plaintiffs petition to the Office of Administrative Hearings for a hearing concerning his racial harassment and retaliation claim. According to Defendant, Plaintiff failed to file his petition for a contested case hearing in a timely manner and the 1 February 2005 memorandum did not adequately notify Defendant that he claimed to have been retaliated against or harassed on the basis of his race. As a result, Defendant argues that, \u201cas a matter of law, there is no jurisdiction for the Petition for Contested Case Hearing, the State Personnel Commission Decision or the second order from the superior court,\u201d so that \u201cthe second order of the superior court should be reversed.\u201d We disagree.\nAccording to N.C. Gen. Stat. \u00a7 126-34, \u201c[a]ny State employee having a grievance arising out of or due to the employee\u2019s employment who alleges unlawful harassment because of the employee\u2019s . . . race . . . shall submit a written complaint to the employee\u2019s department or agency,\u201d with \u201c[t]he department or agency [] hav[ing] 60 days within which to take appropriate remedial action.\u201d \u201cIf the employee is not satisfied with the department or agency\u2019s response to the complaint, the employee shall have the right to appeal directly to the State Personnel Commission.\u201d N.C. Gen. Stat. \u00a7 126-34.\nOn 1 February 2005, Plaintiff submitted a memorandum to Defendant requesting that the 27 July 2004 written warning be removed from his file and asserting that, \u201c[a]s you know, when the State Personnel Commission ruled [that] your predecessor had retaliated against me, it also adopted as a permanent injunction that the DMV should treat me with the same respect it showed to senior white officers at the DMV.\u201d According to Plaintiff, although \u201cwhite senior officers [are included] when personnel matters are being handled,\u201d he had not received similar consideration. After Defendant failed to respond to Plaintiff\u2019s memorandum within sixty days, Plaintiff filed a petition for a contested case hearing on 18 April 2005 alleging (1) that his personnel file contained inaccurate and misleading information and (2) that he had been the victim of racial harassment. In an attachment to his petition, Plaintiff reviewed the history of the administrative litigation arising from Plaintiff\u2019s complaints of racial discrimination and referenced the requirement that Defendant treat him \u201cin good faith and with the same concern it shows for white senior officers.\u201d Following dismissal of his petition, Plaintiff sought judicial review.\nAs we have already noted, Judge Thigpen concluded that, even though Plaintiff adequately notified Defendant that he claimed to have been subjected to harassment on the basis of his race, Defendant failed to act on Plaintiff\u2019s complaint, a fact which authorized Plaintiff to seek relief through the administrative review process. After carefully reviewing the record, we conclude that Judge Thigpen\u2019s findings have adequate record support, that his findings support his conclusions, and that he did not err by determining that Plaintiff sufficiently complied with the requirements of N.C. Gen. Stat. \u00a7 126-34 to vest the Commission with jurisdiction over his complaint of racially-based harassment or retaliation.\nIn urging us to reach a contrary conclusion, Defendant argues that, pursuant to N.C. Gen. Stat. \u00a7 126-38, Plaintiff \u201chad 30 days from the date of the issue complained of here, the written warning, to file a Petition for Contested Case hearing at OAH.\u201d According to N.C. Gen. Stat. \u00a7 126-38, \u201c[a]ny employee appealing any decision or action shall file a petition for a contested case with the Office of Administrative Hearings as provided in [N.C. Gen. Stat. \u00a7] 150B-23(a) no later than 30 days after receipt of notice of the decision or action which triggers the right of appeal.\u201d However, Plaintiff\u2019s claim of racial harassment did not constitute an appeal from a \u201cdecision or action\u201d and so was not subject to the time limitations set out in N.C. Gen. Stat. \u00a7 126-38. Thus, Defendant\u2019s first challenge to Judge Thigpen\u2019s order lacks merit.\nSecondly, Defendant contends that, to \u201cbring a \u2018racial harassment\u2019 claim at OAH, [Plaintiff] must have first complained to the agency concerning this issue.\u201d Defendant cites N.C. Gen. Stat. \u00a7 126-34 in support of this proposition and claims that this statutory provision \u201calso has a 30 day time limit.\u201d N.C. Gen. Stat. \u00a7 126-34 provides, in pertinent part, that:\nAny State employee having a grievance arising out of or due to the employee\u2019s employment who alleges unlawful harassment because of the employee\u2019s ... race ... shall submit a written complaint to the employee\u2019s department or agency. The department or agency shall have 60 days within which to take appropriate remedial action. If the employee is not satisfied with the department or agency\u2019s response to the complaint, the employee shall have the right to appeal directly to the State Personnel Commission.\nContrary to Defendant\u2019s contention, N.C. Gen. Stat. \u00a7 126-34 makes no reference to a \u201c30 day time limit.\u201d In addition, Defendant cites Lee v. N.C. Dep\u2019t of Transp., 175 N.C. App. 698, 625 S.E.2d 567, aff\u2019d, 360 N.C. 585, 634 S.E.2d 887 (2006), in support of his argument that Plaintiff failed to comply with the \u201ctime limits\u201d set out in N.C. Gen. Stat. \u00a7 126-34. However, this Court held in Lee that the Commission lacked jurisdiction over the plaintiff\u2019s racial harassment claim on the grounds that the plaintiff failed to provide Defendant with any written complaint at all rather than on the basis of any sort of timeliness consideration. In this case, on the other hand, the trial court explicitly ruled that Plaintiffs 1 February 2005 memorandum constituted sufficient compliance with the requirement that he submit a written complaint to the department or agency by which he was employed- As a result, we conclude that Defendant\u2019s timeliness argument lacks merit.\nFinally, Defendant contends that Plaintiff\u2019s 1 February 2005 memorandum \u201cdoes not allege that he was harassed, nor does it mention race.\u201d However, as we have already noted, Plaintiff\u2019s communication asserted that the Commission had \u201cruled [that] your predecessor had retaliated against me;\u201d that Defendant \u201cshould treat me with the same respect it showed to senior white officers at the DMV;\u201d and that Plaintiff did not \u201cbelieve [that] Deputy Director Edwards [] circumvent[s] the white senior officers when personnel matters are being handled.\u201d We agree with Judge Thigpen that Plaintiff\u2019s memorandum, \u201ccoupled with the prior history existing between [Plaintiff] and [Defendant],\u201d sufficed \u201cto place [Defendant] on notice that [Plaintiff] was complaining of either harassment or retaliation, or both, based on his race.\u201d As a result, we conclude that Defendant\u2019s final challenge to Judge Thigpen\u2019s jurisdictional decision lacks merit.\n2. Adoption of Commission\u2019s Alternative Findings\nNext, Defendant argues that Judge Stephens \u201cshould not have adopted [the Commission\u2019s] alternative findings [] relative to the written warning since [Judge Thigpen\u2019s] order [] upheld the dismissal of the petition regarding the written warning.\u201d We do not find this argument persuasive.\nJudge Thigpen upheld the dismissal of Plaintiff\u2019s challenge to the inclusion of the 27 July 2004 written warning in his personnel file. Judge Thigpen\u2019s decision to this effect rested on Plaintiff\u2019s failure to comply with the procedural requirements enunciated in N.C. Gen. Stat. \u00a7\u00a7 126-25 and 126-38, which address a state employee\u2019s ability to challenge the inclusion of inaccurate or misleading information in his personnel file. However, Judge Thigpen did not dismiss Plaintiff\u2019s harassment or retaliation claim despite the fact that it was supported, at least in part, by the written warning. Although Defendant argues that, because Judge Thigpen upheld the dismissal of Plaintiff\u2019s claim relating to the allegedly inaccurate or misleading information contained in the written warning, \u201c[a]ny Alternative Findings of Fact or Conclusions of Law reinstating the written warning as an issue in this case should be deemed a nullity,\u201d we are unable to understand why Judge Thigpen\u2019s dismissal of one of Plaintiff\u2019s two claims necessarily precludes any consideration of the written warning to the extent that it is relevant to the other claim on the merits. Defendant cites no authority tending to suggest that the dismissal of Plaintiff\u2019s challenge to the accuracy of the information contained in the written warning bars consideration of that document in the course of an examination of the merits of Plaintiff\u2019s harassment or retaliation claim, and we have not found any such authority in the course of our own research. Thus, this aspect of Defendant\u2019s challenge to Judge Stephens\u2019 order lacks merit.\n3. Commission\u2019s Conclusions of Law Nos. 2 and 3\nThirdly, Defendant argues that \u201calternative conclusions of law #2 and #3 [] should not be upheld because they are outside the scope of Judge Thigpen\u2019s order in that they do not find \u2018harassment and retaliation based upon race.\u2019 \u201d We disagree.\nJudge Thigpen\u2019s order remanded Plaintiff\u2019s complaint that he had been subject to \u201ceither harassment or retaliation, or both, based on his race\u201d for a hearing, (emphasis added). The Commission\u2019s alternative conclusions, which were adopted by Judge Stephens and which we have quoted above, clearly constitute a determination that Plaintiff was subjected to retaliation on the basis of his race. Although Defendant appears to contend that, given the absence of any specific reference to the races of the participants in the relevant conclusions, the Commission\u2019s alternative decision cannot be understood as a determination that the treatment that Plaintiff received stemmed from his race, that argument lacks persuasive force. Given the context in which this case arose, including Plaintiff\u2019s history of multiple, successful, claims to have been subjected to discriminatory conduct, and given that the Commission\u2019s alternative conclusions explicitly reference Plaintiff\u2019s complaint that he had been treated differently from white senior officers, we conclude that the Commission\u2019s alternative decision adequately addressed the issue of race-based retaliation and that Defendant\u2019s argument to the contrary lacks merit.\n4. Non-Retaliatorv Basis for Discipline\nFinally, Defendant challenges'Judge Stephens\u2019 determination that \u201c \u2018the DOT had failed to produce sufficient evidence of a legitimate non-retaliatory reason for the discipline\u2019 \u201d on the grounds that this finding was \u201cwithout basis in the record.\u201d Defendant is not entitled to relief on the basis of this argument.\nAccording to Defendant, the written warning that Plaintiff received rested on Plaintiffs alleged violation of N.C. Gen. Stat. \u00a7 126-27, which prohibits state employees from \u201cknowingly and willfully permit[ting] any person to have access to or custody or possession of any portion of a personnel file designated as confidential by this Article,\u201d and insubordination. Defendant claims that Plaintiffs decision to include the name of another employee who was the subject of disciplinary proceedings in an e-mail to his attorney resulted in a violation of N.C. Gen. Stat. \u00a7 126-27 and that the tone of his communications with his superiors justified the written warning. However, Judge Stephens determined that:\n[Plaintiff] met his burden of proving a prima fac[i]e case of illegal workplace retaliation. Respondent failed to produce sufficient evidence of a legitimate, non-retaliatory reason for the disciplinary action. Thus, [Plaintiffs] written warning should be removed as illegal workplace retaliation.\nThis excerpt from Judge Stephens\u2019 order does not indicate whether Judge Stephens concluded that (1) Plaintiff\u2019s e-mail to his attorney, particularly given the history between the parties, did not fall within the ambit of N.C. Gen. Stat. \u00a7 126-27 or that (2) the proffered reasons were, even if facially valid, a mere pretext for retaliation and not a \u201clegitimate non-retaliatory\u201d reason for issuing a written warning to Plaintiff. As we understand the evidentiary record, Judge Stephens would have been entitled to reach either or both of these conclusions. At bottom, this aspect of Defendant\u2019s challenge to Judge Stephens\u2019 order is nothing more than a challenge to the factual determinations made by the Commission, which are binding upon us for purposes of appellate review given that they have adequate record support. As a result, Defendant\u2019s final argument lacks merit as well.\nIII. Conclusion\nThus, for the reasons discussed above, we conclude that none of Defendant\u2019s challenges to the orders entered by Judge Thigpen and Judge Stephens have merit. As a result, the challenged orders should be, and hereby are, affirmed.\nAFFIRMED.\nJudges McGEE and McCULLOUGH concur.\n. The e-mail in question alleged that Defendant had acted improperly by having one of his subordinates bring an employee to a disciplinary meeting rather than having Plaintiff transport the employee to that meeting.\n. Plaintiff retired from his position with Defendant effective 28 February 2005. However, as will be discussed in more detail later in this opinion, Plaintiffs claim was not rendered moot by his retirement.\n. As a result of the fact that Plaintiff did not advance any further challenge to this aspect of Judge Thigpen\u2019s decision, the substantive issue of whether the written warning was \u201cinaccurate and misleading\u201d and should, for that reason, have been removed from Plaintiff\u2019s personnel file has been finally resolved and need not be addressed in this opinion.\n. According to the record, the presence of the written warning in Plaintiffs personnel file made him ineligible for a pay increase which he would have otherwise received, a fact that adversely affected the amount of retirement benefits that he received following the end of his employment with Defendant.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "Alan McSurely for Plaintiff-appellee.", "Attorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton, for the Defendant-appellant." ], "corrections": "", "head_matter": "CAPTAIN CHARLES W. McADAMS, Plaintiff v. NORTH CAROLINA DEPARTMENT of TRANSPORTATION, Defendant\nNo. COA11-102\n(Filed 6 September 2011)\n1. Administrative Law \u2014 racial harassment and retaliation\u2014 jurisdiction\nThe trial court did not err by remanding plaintiffs petition to the Office of Administrative Hearings for a hearing concerning alleged racial harassment and retaliation. Plaintiff sufficiently complied with the requirements of N.C.G.S. \u00a7 126-34 to vest the State Personnel Commission with jurisdiction over his complaint.\n2. Public Officers and Employees \u2014 state employee \u2014 racial harassment and retaliation \u2014 adoption of alternative findings \u2014 written warning relevant to other claims\nThe trial court did not err in an action arising from alleged harassment or retaliation based on race by adopting the State Personnel Commission\u2019s alternative findings relative to a written warning. Another trial court\u2019s dismissal of one of plaintiff state employee\u2019s two claims did not necessarily preclude any consideration of the written warning to the extent that it was relevant to the other claim on the merits.\n3. Public Officers and Employees \u2014 state employee \u2014 racial harassment and retaliation \u2014 alternative conclusions of law\nThe trial court did not err by upholding the State Personnel Commission\u2019s alternative conclusions of law numbers 2 and 3 because they constituted a determination that plaintiff state employee was subjected to retaliation on the basis of his race.\n4. Public Officers and Employees \u2014 state employee \u2014 racial harassment and retaliation \u2014 legitimate non-retaliatory reason for discipline\nThe trial court did not err by determining that the Department of Transportation had failed to produce sufficient evidence of a legitimate non-retaliatory reason for the discipline of plaintiff state employee. Defendant\u2019s argument was a challenge to the State Personnel Commission\u2019s factual determinations, which were binding on the Court of Appeals.\nAppeal by defendant from orders entered on 1 August 2008 by Judge Cressie H. Thigpen, Jr., and on 31 August 2010 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 24 May 2011.\nAlan McSurely for Plaintiff-appellee.\nAttorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton, for the Defendant-appellant." }, "file_name": "0429-01", "first_page_order": 439, "last_page_order": 452 }