{ "id": 4103346, "name": "WADE BRYAN BULLOCH, Petitioner v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL and PUBLIC SAFETY; NORTH CAROLINA HIGHWAY PATROL, Respondent", "name_abbreviation": "Bulloch v. North Carolina Department of Crime Control & Public Safety", "decision_date": "2012-10-02", "docket_number": "No. COA12-115", "first_page": "1", "last_page": "15", "citations": [ { "type": "official", "cite": "223 N.C. App. 1" } ], "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": "620 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634071 ], "year": 2005, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0014-01" ] }, { "cite": "648 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639126 ], "year": 2007, "pin_cites": [ { "page": "834" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0830-01" ] }, { "cite": "46 Lab. Arb. Rep. (BNA) 359", "category": "reporters:specialty", "reporter": "Lab. Arb. Rep. (BNA)", "year": 1966, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "451 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519209, 2520269, 2519598, 2518574, 2519998 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0309-05", "/nc/338/0309-02", "/nc/338/0309-03", "/nc/338/0309-01", "/nc/338/0309-04" ] }, { "cite": "446 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "395-96", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12137315 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0590-01" ] }, { "cite": "323 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "314", "parenthetical": "holding that where a lower court's ruling is based on alternative grounds, a court on appeal need not address the second alternative ground where the appellate court determines that the first alternative ground was correct" } ], "opinion_index": 0 }, { "cite": "312 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757351 ], "year": 1984, "pin_cites": [ { "page": "357", "parenthetical": "holding that where a lower court's ruling is based on alternative grounds, a court on appeal need not address the second alternative ground where the appellate court determines that the first alternative ground was correct" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0326-01" ] }, { "cite": "173 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8354061 ], "year": 2005, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0594-01" ] }, { "cite": "726 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2012, "pin_cites": [ { "page": "925" }, { "page": "925" }, { "page": "924" } ], "opinion_index": 0 }, { "cite": "361 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3737456 ], "year": 2007, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0531-01" ] }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2004, "pin_cites": [ { "page": "894" }, { "page": "895" }, { "page": "900-01", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "900" }, { "page": "900", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "658-59" }, { "page": "659-60" }, { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] } ], "analysis": { "cardinality": 1090, "char_count": 35593, "ocr_confidence": 0.735, "pagerank": { "raw": 8.743979237294988e-08, "percentile": 0.4946778750421357 }, "sha256": "b1ef8ecea8c20d7e6b550f4d55683e1c0878837ce21dc336e942c14612808ccd", "simhash": "1:94627ee3ffaea072", "word_count": 5467 }, "last_updated": "2023-07-14T18:08:05.693184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and THIGPEN concur." ], "parties": [ "WADE BRYAN BULLOCH, Petitioner v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL and PUBLIC SAFETY; NORTH CAROLINA HIGHWAY PATROL, Respondent" ], "opinions": [ { "text": "STEPHENS, Judge.\nOn 6 May 2005, Wade Bryan Bulloch, who at the time was a Line Sergeant with the North Carolina Highway Patrol (the \u201cNCHP\u201d), a division of the North Carolina Department of Crime Control and Public Safety (the \u201cDepartment), was dismissed from his employment on grounds of unacceptable personal conduct. On 26 July 2005, Bulloch challenged his dismissal by filing with the Office of Administrative Hearings (the \u201cOAH\u201d) a petition for a contested case hearing against the Department. Bulloch\u2019s case was heard in the OAH on 29 and 30 July 2009 and 4 August 2009 before Administrative Law Judge Beecher R. Gray (\u201cALJ Gray\u201d).\nThe evidence before ALJ Gray tended to show the following: Bulloch served with the NCHP from 1989 until his dismissal in 2005. During his tenure with the NCHP, Bulloch earned an exemplary service record and \u201calways ha[d] been in good standing and [] never [] had any adverse action or punishment.\u201d Moreover, appraisals of Bulloch\u2019s job performance, which were admitted into evidence, \u201cdemonstrate[d] substantial and consistent very high conduct ratings.\u201d\nIn 1997, Bulloch was diagnosed with depression, and in 2003, with bipolar disorder. In early December 2004, Bulloch\u2019s physician took Bulloch off his medication for depression and thereafter prescribed lithium for Bulloch\u2019s bipolar condition. In the evening of 14 December 2004, Bulloch took his first recommended dosage of lithium. Later that night, when off duty, Bulloch consumed some alcohol and attended the NCHP Christmas party with his girlfriend. At the party, Bulloch consumed more alcohol before attempting to dance with his girlfriend. When his girlfriend resisted, Bulloch employed a \u201cdefensive tactic\u201d \u201ctaught by the [NCHP]\u201d and \u201cmoved [his girlfriend\u2019s] arm behind her back so as to bring her along with him.\u201d His girlfriend began to cry and indicated Bulloch was hurting her. Bulloch then \u201cstopped his efforts at dancing,\u201d and he and his girlfriend left the party.\nUpon leaving the party, Bulloch \u201cbecame frustrated and very emotional,\u201d and his girlfriend told him that she was leaving him. At home, Bulloch \u201cbegan to break down,\u201d \u201cbecame suicidal],] and took two [] sleeping pills.\u201d Bulloch retrieved his service weapon and threatened to kill himself in front of his girlfriend. When Bulloch\u2019s girlfriend left the room, Bulloch \u201cplaced [his service pistol] to his temple but then removed it and discharged one round into the floor of his bedroom.\u201d When his girlfriend returned to the bedroom, Bulloch told her he had taken the entire bottle of sleeping pills. Bulloch\u2019s girlfriend called 911, and Bulloch was transported to the hospital. Shortly thereafter, Bulloch was relieved of duty \u201cfor medical reasons.\u201d\nAfter his hospitalization, Bulloch returned to limited duty and was set to undergo a \u201cfitness-for-duty\u201d medical examination, which had been requested by Dr. Thomas Griggs, the NCHP medical director, and ordered by NCHP Commander Colonel William Fletcher Clay, Jr. Before that examination was performed, however, Colonel Clay terminated Bulloch\u2019s employment.\nDr. Moira Artigues, an expert in the field of forensic psychiatry who conducted a forensic evaluation of Bulloch, testified at the hearing that Bulloch\u2019s behavior during the incident \u201chad a medical basis\u201d and was caused by \u201c[b]ipolar [disorder and associated medications.\u201d\nBased on the foregoing evidence, ALJ Gray concluded in a 15 January 2010 order that termination of Bulloch\u2019s employment for unacceptable personal conduct (1) \u201cwas based upon an incomplete investigation and decision-making process\u201d; (2) \u201cwas violative of [NCHP\u2019s] own rules and order of [Colonel Clay]\u201d; (3) \u201cwas arbitrary and capricious because it failed to consider a known, underlying medical condition\u201d; and (4) \u201cis not supported by substantial evidence constituting just cause.\u201d Thus, ALJ Gray decided that Bulloch was entitled to reinstatement.\nThereafter, in a decision and order dated 13 July 2010, the State Personnel Commission (the \u201cSPC\u201d) adopted ALJ Gray\u2019s findings, conclusions, and decision and ordered that Bulloch be reinstated.\nOn 13 August 2010, the Department sought judicial review of the SPC\u2019s decision and order in Wake County Superior Court. On judicial review of an agency\u2019s final decision, a trial court may reverse or modify such a decision only if the trial court determines that the substantial rights of the party seeking review 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 ... 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) (2009); see also N.C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 658-59, 599 S.E.2d 888, 894 (2004). In this case, after a 1 August 2011 hearing before the Honorable Howard E. Manning, Jr., the trial court reviewed the SPC\u2019s decision and order, concluded that the Department\u2019s rights were not prejudiced by any of the errors listed above, and affirmed the SPC\u2019s decision and order. From that order, the Department appeals to this Court.\nOn appeal from a trial court\u2019s review of a final agency decision, an appellate court\u2019s task is to examine the trial court\u2019s order for error of law by \u201c(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) determining whether the court did so properly.\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). For errors alleged regarding violations of subsections 150B-51(b)(l) through (4), the appellate court engages in de novo review; for errors alleged regarding violations of subsections 150B-51(b)(5) or (6), the \u201cwhole record test\u201d is appropriate. Carroll, 358 N.C. at 659-60, 599 S.E.2d at 895. The Department concedes that the trial court exercised the appropriate scope of review. Thus, our review of the trial court\u2019s decision is limited to whether the trial court erroneously applied that scope of review, i.e., whether the court correctly concluded that the Department\u2019s rights were not prejudiced by any of the errors listed in section 150B-51(b).\nThe Department\u2019s overarching argument on appeal is that the trial court erred by concluding that the SPC properly determined that the Department did not have just cause to dismiss Bulloch from employment. The Department contends that the SPC\u2019s ultimate conclusion that the Department lacked just cause was itself erroneous and also that many of the SPC\u2019s supporting findings of fact and conelusions of law were erroneous such that the just cause conclusion should be reversed. For the following reasons, we are unpersuaded.\nAs recently held by this Court in Warren v. N.C. Dep\u2019t of Crime Control & Pub. Saftey, _N.C. App. _, 726 S.E.2d 920 (2012), determining whether a State agency had just cause to discipline an employee requires three inquiries: (1) whether the employee engaged in the conduct the employer alleges; (2) whether the employee\u2019s conduct falls within one of the categories of unacceptable personal conduct provided by the North Carolina Administrative Code; and (3) whether that unacceptable personal conduct amounted to just cause for the disciplinary action taken. Id. at_, 726 S.E.2d at 925. As Bulloch admitted to his actions in this case, only the latter two inquiries are relevant to this appeal.\nRegarding the second inquiry, the North Carolina Administrative Code provides that unacceptable personal conduct includes \u201cthe willful violation of a known or written work rule.\u201d 25 NCAC 1J .0614(1). The work rule violation that led to Bulloch\u2019s dismissal in this case was his allegedly willful violation of the NCHP\u2019s policy on unbecoming conduct, which forbids conduct that \u201ctends to bring the [NCHP] into disrepute\u201d or \u201creflects discredit upon any member(s) of the [NCHP].\u201d The SPC concluded in its order, however, that Bulloch \u201cdid not do anything ... to intentionally violate any [NCHP] policy\u201d and \u201cdid not commit any willful unbecoming conduct.\u201d Accordingly, the SPC\u2019s order indicates that the Department\u2019s decision did not satisfy the second inquiry of the Warren just cause analysis.\nThe Department contends on appeal, however, that the SPC\u2019s conclusion on this issue was error because Bulloch\u2019s conduct was an intentional and willful violation of the NCHP\u2019s unbecoming conduct policy constituting unacceptable personal conduct. This alleged error, the Department urges, warrants reversal of the SPC\u2019s conclusion that the Department lacked just cause to dismiss Bulloch. We disagree.\nIn its argument on this issue, the Department focuses on Bulloch\u2019s voluntary intoxication and that intoxication\u2019s alleged impact on Bulloch\u2019s conduct. In addressing this argument, we first address the Department\u2019s related argument that the trial court erroneously concluded that the following finding by the SPC was supported by substantial evidence: \u201cThere is no significant evidence to support a conclusion that alcohol was a substantial proximate cause of the behavior of [] Bulloch.\u201d In that argument, the Department contends that \u201call the evidence, including the testimony of [Bulloch] and [Dr. Artigues],\u201d supports a finding contrary to the challenged finding. The Department further argues that the SPC erred as a matter of law in failing to conclude that alcohol was a substantial proximate cause. We are unpersuaded.\nWhile the Department is correct that Dr. Artigues testified that use of alcohol was a factor in Bulloch\u2019s behavior, Dr. Artigues also testified that Bulloch\u2019s behavior was caused by a combination of alcohol, Bulloch\u2019s first dose of lithium, \u201chypomania,\u201d and his being \u201crelatively unmedicated for his bipolar disorder.\u201d Dr. Artigues further testified that Bulloch\u2019s bipolar disorder and his emotional breakdown were very important causal factors of Bulloch\u2019s conduct, such that Dr. Artigues concluded that Bulloch\u2019s conduct \u201cwas a direct result of his medical illness.\u201d Moreover, Bulloch testified that he had previously consumed alcohol and never had similar behavioral problems. In our view, the foregoing testimony serves as substantial evidence \u2014 i.e., \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion,\u201d Hilliard v. N.C. Dep\u2019t of Corr., 173 N.C. App. 594, 598, 620 S.E.2d 14, 18 (2005) \u2014 to support the SPC\u2019s finding that while alcohol \u201cmay have played some role in [Bulloch\u2019s] behaviors,\u201d alcohol was not \u201ca substantial proximate cause of the behavior.\u201d Accordingly, we conclude that the challenged finding of fact is supported by substantial evidence. For the same reasons, we hold that the SPC\u2019s failure to conclude that alcohol was a substantial proximate cause of Bulloch\u2019s behavior was not erroneous as a matter of law.\nBecause we agree with the SPC that Bulloch\u2019s intoxication was not a substantial proximate cause of Bulloch\u2019s conduct, we find less convincing the Department\u2019s argument that the voluntary nature of Bulloch\u2019s intoxication requires a conclusion that Bulloch\u2019s conduct was intentional and willful. As found by the SPC, \u2022 compared with Bulloch\u2019s intoxication, the more important factors in Bulloch\u2019s conduct were his bipolar disorder and his first dose of lithium. Indeed, the evidence shows that Bulloch had \u201ca great deal of difficulty\u201d managing his emotions because of his bipolar disorder and that his first dose of lithium \u201cgave him some unexpected psychoactive effects.\u201d (Emphasis added). Dr. Artigues testified that the \u201ccommon side effects of lithium\u201d \u2014 including mental confusion and a breakdown of emotions \u2014 were consistent with Bulloch\u2019s behavior and are more likely to occur from a first dosage. Further, Dr. Artigues testified that because Bulloch was \u201cessentially between medications\u201d at the time of the incident, he was at an increased risk of \u201can adverse reaction from a new medication like lithium.\u201d The foregoing evidence, tending to show that Bulloch was not fully in control of his behavior due to his first dose of lithium and his bipolar disorder, serves as substantial evidence that Bulloch\u2019s behavior was not intentional, but rather was a result of his medical condition and the unexpected effects of his prescribed treatment.\nMoreover, irrespective of the accuracy of the SPC\u2019s conclusion that Bulloch\u2019s conduct was not intentional and willful behavior that constituted unacceptable personal conduct, we cannot conclude that any error in these conclusions was prejudicial to the Department and warrants reversal of the SPC\u2019s conclusion that the Department lacked just cause to dismiss Bulloch. Cf. N.C. Gen. Stat. \u00a7 150B-51(b) (providing that a reviewing court may only reverse or modify a final agency decision where an erroneous finding or conclusion prejudices the substantial rights of an aggrieved party). As noted supra, under the three-part just cause analysis from Warren, even if an employee\u2019s conduct constitutes unacceptable personal conduct, it must still be determined whether that unacceptable personal conduct amounted to just cause for the disciplinary action taken because \u201cnot every instance of unacceptable personal conduct... provides just cause for discipline.\u201d Warren, _N.C. App. at_, 726 S.E.2d at 925. Thus, were we to assume that Bulloch\u2019s conduct qualified as unacceptable personal conduct, it must then be determined whether that misconduct amounted to just cause for dismissal, which determination is to be made based upon an examination of the facts and circumstances of each individual case. Id.\nAccording to our Supreme Court:\nJust cause, like justice itself, is not susceptible of precise definition. It is a flexible concept, embodying notions of equity and fairness, that can only be determined upon an examination of the facts and circumstances of each individual case.\nId. at 669, 599 S.E.2d at 900-01 (internal quotation marks and citations omitted). In light of the facts and circumstances of a case, the \u201cfundamental question\u201d is whether the disciplinary action taken was \u201cjust.\u201d Id. at 669, 599 S.E.2d at 900. \u201cInevitably, this inquiry requires an irreducible act of judgment that cannot always be satisfied by the mechanical application of rules and regulations.\u201d Id.\nIn this case, to determine whether the Department\u2019s dismissal of Bulloch was just, the SPC took into account many factors, including Bulloch\u2019s training and experience, whether his conduct was an isolated incident, the intentional nature of Bulloch\u2019s actions, any injury or medical condition that may have contributed to Bulloch\u2019s conduct, the effect of Bulloch\u2019s conduct on his colleagues, the likelihood of recurrence, the effect of the conduct on work performance, any extenuating, aggravating, or mitigating circumstances, the blameworthiness of Bulloch\u2019s motives, the fairness and completeness of the Department\u2019s investigation into Bulloch\u2019s conduct, selectivity of enforcement, and the proximate cause of Bulloch\u2019s conduct. The SPC \u201cweighed and balanced\u201d all of these factors and concluded that \u201cthe totality of all the pertinent factors militate in [] Bulloch\u2019s favor.\u201d The SPC further concluded that\nthe [] evidence of record demonstrates that the off-duty conduct in issue followed and was proximately caused by [Bulloch\u2019s] [b]ipolar [disorder medical condition and his first ingestion of a prescribed medication, [l]ithium. This first ingestion of this new medicine, which combined with [Bulloch\u2019s] medical condition and some alcohol, proximately caused [Bulloch] to contemplate suicide, discharge a weapon into the floor at his home, and some related behaviors.\nThe SPC\u2019s findings indicate, however, that despite the existence of this causal medical condition, the Department did not obtain a fitness-for-duty examination, which \u201clikely would have provided especially relevant evidence that was necessary for proper personnel decision [-]making consideration under Carroll.\u201d This failure to undertake a full medical examination, the SPC concluded, demonstrated the Department\u2019s \u201carbitrariness and irrationality in the consideration of [] Bulloch\u2019s rights.\u201d Indeed, the SPC\u2019s findings indicate that Colonel Clay was almost completely unaware of the effects of bipolar disorder and the side effects of lithium. As such, the SPC concluded that the Department \u201cfailed to properly consider substantial and highly relevant facts and circumstances.\u201d Ultimately, the SPC determined that the Department did not have just cause to dismiss Bulloch because (1) Bulloch\u2019s conduct, including his threatened suicide, was a \u201cdirect result of his underlying medical illness and the pharmacological effect of his first dosage of the psychoactive drug, [l]ithium\u201d; and (2) the Department did not fully consider Bulloch\u2019s medical condition and, thus, did not fully and properly investigate the incident before determining whether discipline would be appropriate.\nUpon judicial review, the trial court concluded that the SPC\u2019s conclusions and determination that just cause did not exist were not erroneous as a matter of law. We agree. In our view, the forgoing conclusions are supported by the SPC\u2019s findings and are not erroneous as a matter of law. Moreover, we hold that these conclusions properly support the SPC\u2019s ultimate conclusion that the Department lacked just cause to dismiss Bulloch.\nThe evidence clearly shows that, but for the 14 December 2004 incident, Bulloch was an excellent employee of the NCHP. The evidence further shows that the cause of this single incident was a controllable \u2014 but at the time uncontrolled, through no fault of Bulloch \u2014 medical condition and the unexpected side effects of prescribed treatment. However, despite the ability of the Department to investigate these causes and their roles in the incident, Bulloch was dismissed from employment before an adequate investigation was completed and before Bulloch\u2019s supervisor, Colonel Clay, gained any sort of understanding of Bulloch\u2019s condition and treatment. Moreover, Bulloch\u2019s dismissal for hurting his girlfriend and attempting to hurt himself was in spite of far more lenient disciplinary action in previous cases where, according to evidence in this case, the NCHP (1) gave a trooper a five percent reduction in pay for \u201cmaking 22 threatening phone calls to his ex[-]wife and threatening to kill her\u201d and for attempting to initiate a traffic stop of his ex-wife without lawful reason; and (2) gave a trooper five days of suspension without pay for assaulting an ex-girlfriend by \u201cgrabbing, choking and striking her\u201d and, on another occasion, \u201cplac[ing] [a woman] in a bent wrist arm lock to the point it hurt.\u201d The forgoing evidence, in our view, is sufficient to support the determination that the Department did not have just cause to dismiss Bulloch for his conduct on 14 December 2004.\nNevertheless, the Department argues that the SPC\u2019s determination that just cause did not exist was improper because it was based on the erroneous findings and conclusions that \u201ca fitness-for-duty evaluation was necessary or appropriate to resolve an issue in question.\u201d\nInitially, it appears that the SPC considered the nonperformance of the fitness-for-duty evaluation for two separate reasons. First, the SPC considered the evaluation\u2019s nonperformance as evidence of lack of just cause for dismissing Bulloch in that it showed that the Department \u201cfailed to properly consider substantial and highly relevant facts and circumstances regarding [] Bulloch\u2019s medical history, his underlying medical and pharmacological conditions on [14 December 2004], [and] the effect those conditions exerted on his behavior on that night.\u201d Second, the SPC considered the nonperformance in support of \u201can alternative ground for not imposing, formal discipline where an agency fails to comply with its own policy.\u201d The Department\u2019s argument on this issue goes only to this second consideration. The Department contends that the fitness-for-duty evaluation is used only to determine whether an employee is medically capable of performing his duties. The Department goes on to argue that because Bulloch was dismissed due to his conduct on 14 December 2004 \u2014 and thus would not be returning to his duties \u2014 the fitness-for-duty evaluation was unnecessary.\nAssuming the Department\u2019s argument on this issue is correct and the failure to complete the fitness-for-duty evaluation was not a violation of agency policy, these findings do not warrant a reversal or modification of the SPC\u2019s decision and order. As noted supra, a reviewing court may only reverse or modify a final agency decision where an erroneous finding or conclusion prejudices the substantial rights of the appealing party. N.C. Gen. Stat. \u00a7 150B-51(b). In this case, the SPC\u2019s findings and conclusions regarding the Department\u2019s policy on performing fitness-for-duty evaluations support an alternative ground for reversing the Department\u2019s decision to terminate Bulloch\u2019s employment, i.e., that the decision was \u201cviolative of [the Department\u2019s] own rules.\u201d Irrespective of the SPC\u2019s reversal based on the Department\u2019s violation of its own rules, the SPC, separately and in the alternative, reversed the Department\u2019s decision on grounds of lack of just cause \u201cfor the termination of [] Bulloch under [] unique and particular facts and circumstances.\u201d As discussed supra, this conclusion by the SPC that the Department lacked just cause to dismiss Bulloch was correct. Thus, we need not address the correctness of the alternative ground for reversal and any error with respect to that alternative ground cannot be prejudicial. Cf. State ex rel. Edmisten v. Tucker, 312 N.C. 326, 357, 323 S.E.2d 294, 314 (1984) (holding that where a lower court\u2019s ruling is based on alternative grounds, a court on appeal need not address the second alternative ground where the appellate court determines that the first alternative ground was correct). Accordingly, the Department\u2019s argument is overruled.\nThe Department next argues that the SPC\u2019s application of the \u201crational nexus\u201d test from Eury v. N.C. Employment Sec. Comm\u2019n, 115 N.C. App. 590, 446 S.E.2d 383, disc. review denied, 338 N.C. 309, 451 S.E.2d 635 (1994), was erroneous and warrants reversal of the SPC\u2019s conclusion that the Department did not have just cause to terminate Bulloch\u2019s employment. We agree that application of the rational nexus test was erroneous, but we disagree that such error warrants reversal.\nThe rational nexus test, as enunciated in Eury, applies where an employee has been dismissed based upon an act of off-duty criminal conduct and requires the agency to \u201cdemonstrate that the dismissal is supported by the existence of a rational nexus between the type of [off-duty] criminal conduct committed [by the employee] and the potential adverse impact on the employee\u2019s future ability to perform for the agency.\u201d Id. at 611, 446 S.E.2d at 395-96 (emphasis in original). This burden on an agency is in addition to the burden on the agency to prove that there was just cause for dismissal of the employee. See N.C. Gen. Stat. \u00a7 126-35(d) (2011). However, in Warren, a decision filed nine months after the Department gave notice of appeal in this case, we stated that there was no \u201cbinding precedent applying the rational nexus test to non-criminal conduct\u201d and \u201cdecline [d] to extend this test to non-criminal conduct.\u201d_N.C. App. at_, 726 S.E.2d at 924. Accordingly, where an agency disciplines an employee based on off-duty non-criminal conduct, that agency is not required to prove the existence of a rational nexus between the employee\u2019s conduct and his future performance. Id.\nNevertheless, we cannot conclude that the SPC\u2019s application of the rational nexus test resulted in prejudice to the Department in this case. First, we note that in the SPC\u2019s decision and order, the rational nexus test was considered separately from, and in addition to, the SPC\u2019s determination of the nonexistence of just cause. In its designation of the issues before it, the SPC listed the first issue as \u201c[w]hether [the Department has] proven that there was just cause to terminate [Bulloch\u2019s] employment,\u201d and it listed as a second, separate issue \u201c[w]hether [the Department has] proven ... a rational nexus between [Bulloch\u2019s] off-duty conduct and potential adverse impact on [Bulloch\u2019s] future ability to perform.\u201d Moreover, the SPC concluded separately in its decision and order that (1) the \u201ctotality of all the pertinent factors militate in [] Bulloch\u2019s favor and [] there was no adequate just cause for termination,\u201d and (2) \u201c[the Department] failed to prove that there was a rational nexus.\u201d Thus, it appears from the decision and order that the SPC concluded the Department did not have just cause to dismiss Bulloch irrespective of the Department\u2019s ability to prove a rational nexus between Bulloch\u2019s conduct and his future performance.\nSecond, although under Warren the SPC may not require an agency to satisfy the burden of proving a rational nexus between off-duty non-criminal conduct and an employee\u2019s ability to perform, the SPC\u2019s consideration of factors relevant to the rational nexus analysis\u2014 including the likelihood of recurrence, extenuating, aggravating, and mitigating circumstances, and the blameworthiness of the motives of the conduct, Eury, 115 N.C. App. at 611, 446 S.E.2d at 396 \u2014 does not necessarily warrant a finding of prejudice. Indeed, as noted supra, just cause is \u201ca flexible concept, embodying notions of equity and fairness, that can only be determined upon an examination of the facts and circumstances of each individual case.\u201d Carroll, 358 N.C. at 669, 599 S.E.2d at 900 (internal quotation marks and citations omitted). Certainly, on examination of all the facts, circumstances, and equities of a case, consideration of additional factors shedding light on the employee\u2019s conduct is not improper. Thus, we conclude that, while the SPC improperly burdened the Department with proving a rational nexus in this case, that burden did not prejudice the Department because (1) the SPC considered the Department\u2019s burden to show just cause separately from its burden to prove a rational nexus and (2) because many of the factors relevant to that second burden were also relevant to the first. Accordingly, the Department\u2019s argument on this issue is overruled.\nThe Department next argues that, in analyzing factors to determine the existence of just cause, the SPC \u201cerred as a matter of law in relying on- the seven-factor test in Enterprise Wire.\u201d The Department contends that the SPC\u2019s consideration of factors listed in \u201cIn re Enterprise Wire Co. & Enterprise Indep. Union, 46 Lab. Arb. Rep. (BNA) 359 (Mar 28, 1966),\u201d was error because application of that decision \u201cdoes not allow the agency to consider all relevant factors\u201d and improperly requires \u201cmechanical application of rules.\u201d We are unpersuaded.\nInitially, we note that the SPC did not consider the factors from Enterprise Wire as exclusive and, indeed, considered many other factors beyond those listed in the case. Further, the SPC did not improperly conclude that it was bound by the Enterprise Wire decision as the Department suggests. Rather, the SPC simply noted that its previous decisions had recognized the Enterprise Wire factors and, in this case, used those factors \u201c[i]n addition to the analysis and factors\u201d from other North Carolina cases. There was no improper \u201cmechanical application of rules\u201d as the Department suggests. The Department\u2019s argument is overruled.\nThe Department next argues that the SPC improperly considered Bulloch\u2019s post-termination employment record, as well as his post-termination compliance with medical advice and \u201crecovery from his aberrational behavior\u201d in the just cause analysis. We agree. As correctly noted by the Department, evidence of Bulloch\u2019s subsequent employment record and conduct was not available to the Department at the time the decision to dismiss Bulloch was made. Thus, the SPC\u2019s consideration of that information in determining whether the Department could properly have dismissed Bulloch when they did was improper. However, we cannot conclude that the SPC\u2019s consideration of Bulloch\u2019s subsequent employment and conduct was prejudicial to the Department. We note initially that,. although the Department did not have the information when Bulloch was dismissed, the fact that Bulloch ably continued his law enforcement career while appropriately dealing with his medical conditions confirms the SPC\u2019s findings regarding Dr. Artigues\u2019 testimony that people with bipolar disorder \u201ccan lead normal and productive lives, including holding jobs that are very stressful.\u201d Confirmation of these findings furthers the SPC\u2019s conclusion that the Department should have gained a fuller understanding of the cause of Bulloch\u2019s behavior before making the decision to dismiss him. Moreover, ignoring the findings and conclusions of the SPC regarding Bulloch\u2019s subsequent employment and conduct, we still conclude, in our de novo review of the SPC\u2019s determination of the Department\u2019s lack of just cause, that the remaining findings and conclusions discussed supra sufficiently support the SPC\u2019s just cause determination. Indeed, irrespective of Bulloch\u2019s subsequent employment and conduct, the evidence of the underlying medical cause for Bulloch\u2019s behavior, including his attempted suicide, and of the Department\u2019s failure to fully investigate that cause before dismissing Bulloch is sufficient to support the SPC\u2019s determination that the Department lacked just cause. As the pre-termination evidence in this case fully supports the SPC\u2019s just cause determination, we cannot conclude that a different result would have been obtained had the SPC ignored the post-termination evidence presented by Bulloch. Thus, the SPC\u2019s consideration of Bulloch\u2019s post-termination employment was not prejudicial error. The Department\u2019s argument is overruled.\nThe Department next argues that the SPC erred in finding Bulloch\u2019s \u201ctruthfulness and candor\u201d about the 14 December 2004 incident as a mitigating factor in the just cause analysis. We disagree. Although the Department may be correct that Bulloch had a duty to be truthful in his communications with his employer, he certainly could have ignored that duty and impeded the Department\u2019s investigation of his actions. Accordingly, we see no error in the SPC\u2019s consideration of Bulloch\u2019s truthfulness as a mitigating factor.\nThe Department next argues that the SPC erred in considering \u201csome limited evidence of selective enforcement and disparate treatment in discipline by [the Department]\u201d offered by Bulloch. The Department contends that this evidence was irrelevant to this case. We disagree. As noted by the SPC, the \u201climited evidence\u201d included actions by NCHP employees that involved \u201cimproper intent,\u201d such as repeatedly threatening to kill and unlawfully pulling over an ex-wife, assaulting an ex-girlfriend and placing her \u201cin a bent wrist arm lock to the point it hurt,\u201d and assaulting another trooper. The SPC considered these examples and noted that the NCHP employee was not terminated in each case. In our view, this evidence was relevant to this case and, thus, not improperly considered by the SPC. The Department\u2019s argument is overruled.\nThe Department next argues that several of the SPC\u2019s findings and conclusions regarding the existence of just cause are erroneous because they \u201cindicate that [the Department] cannot dismiss [Bulloch] for his misconduct because it relates to his bipolar condition.\u201d This argument, however, misapprehends the SPC\u2019s determination. Rather than concluding that Bulloch\u2019s medical condition precludes his dismissal, the SPC concluded that (1) Bulloch\u2019s medical condition was a substantial cause of Bulloch\u2019s conduct, (2) Bulloch\u2019s first dose of a prescribed medication had unintended effects and substantially caused Bulloch\u2019s conduct, and (3) the Department\u2019s failure to fully investigate these causes showed an inadequate and irrational decision-making process. Nothing in the SPC\u2019s decision and order indicates that the mere existence of a medical condition precludes dismissal; however, the SPC is clear that such a condition ought to be fully taken into account before disciplinary' action is taken. We agree, and, thus, overrule the Department\u2019s argument.\nFinally, the Department contends that the SPC\u2019s conclusion that the Department \u201cfailed to consider all relevant factors in determining just cause for dismissal\u201d is erroneous because Colonel Clay considered multiple factors, including \u201cmedical information regarding bipolar disease and depression,\u201d before dismissing Bulloch. However, as found by the SPC and undisputed by the Department, at the time of dismissal, Colonel Clay \u201ccould not tell whether [b]ipolar [disorder could cause certain types of human behaviors,\u201d \u201cwas not familiar with [l]ithium then or now,\u201d did not have a thorough understanding of bipolar disorder, \u201creviewed\u201d but did not read \u201cin its entirety\u201d a document from the National Institute of Mental Health on bipolar disorder brought to him after the incident, and \u201ccould not recall any discussions or communications at all with Dr. Griggs about the effects of [l]ithium on a patient who had been diagnosed with depression and [b]ipolar [disorder.\u201d In our view, the foregoing findings clearly support the SPC\u2019s conclusion that the underlying causes of Bulloch\u2019s conduct were not fully considered by the Department before termination. Accordingly, the Department\u2019s argument is overruled.\nBased on the foregoing, we conclude that the SPC correctly determined that the Department did not have just cause .to dismiss Bulloch. Therefore, we hold that the trial court\u2019s review of the SPC\u2019s decision and order was proper and that the trial court correctly affirmed the SPC\u2019s decision and order.\nAFFIRMED.\nJudges STEELMAN and THIGPEN concur.\n. There is no indication in the record on appeal regarding the cause for the nearly four-year period between the filing of Bulloch\u2019s petition with the OAH and Bulloch\u2019s hearing.\n. As noted by the Department, Enterprise Wire is a labor arbitration decision not issued by an appellate court in this state and has no precedential value.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "The McGuinness Law Firm, by J. Michael McGuinness, for Petitioner.", "Attorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for Respondent.", "Richard C. Hendrix for Amicus Curiae North Carolina Troopers Association and Richard E. Mulvaney for Amicus Curiae National Troopers Coalition." ], "corrections": "", "head_matter": "WADE BRYAN BULLOCH, Petitioner v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL and PUBLIC SAFETY; NORTH CAROLINA HIGHWAY PATROL, Respondent\nNo. COA12-115\n(Filed 2 October 2012)\nAdministrative Law \u2014 State Personnel Commission \u2014 no just cause to dismiss petitioner\nThe trial court did not err by concluding that the State Personnel Commission (SPC) properly determined that defendant North Carolina Department of Crime Control and Public Safety (Department) did not have just cause to dismiss petitioner from his employment with the North Carolina Highway Patrol. The SPC\u2019s ultimate conclusion that the Department lacked just cause was not erroneous and the SPC\u2019s supporting findings of fact and conclusions of law were not erroneous.\nAppeal by Respondent from decision and order entered 23 August 2011 by Judge Howard E. Manning, Jr., in Wake County Superior Court. Heard in the Court of Appeals 15 August 2012.\nThe McGuinness Law Firm, by J. Michael McGuinness, for Petitioner.\nAttorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for Respondent.\nRichard C. Hendrix for Amicus Curiae North Carolina Troopers Association and Richard E. Mulvaney for Amicus Curiae National Troopers Coalition." }, "file_name": "0001-01", "first_page_order": 11, "last_page_order": 25 }