{ "id": 6778840, "name": "MILLIE E. HERSHNER, Petitioner v. N.C. DEPARTMENT OF ADMINISTRATION and N.C. HUMAN RELATIONS COMMISSION, Respondent", "name_abbreviation": "Hershner v. N.C. Department of Administration", "decision_date": "2014-03-04", "docket_number": "No. COA13-790", "first_page": "552", "last_page": "558", "citations": [ { "type": "official", "cite": "232 N.C. App. 552" } ], "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": "628 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635483 ], "year": 2006, "pin_cites": [ { "page": "2" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(f)" }, { "page": "(f)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 55-7-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "120" }, { "page": "120" }, { "page": "120-21" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "678" }, { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "360 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789468 ], "year": 2006, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0384-01" ] } ], "analysis": { "cardinality": 665, "char_count": 15972, "ocr_confidence": 0.694, "pagerank": { "raw": 5.747034550892732e-08, "percentile": 0.359766534651248 }, "sha256": "6a4210d99b80c28382b370138ebc1cc8b484162203f06304957be546080667c2", "simhash": "1:effdc209dd3dac51", "word_count": 2517 }, "last_updated": "2023-07-14T19:34:41.441392+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and ERVIN concur." ], "parties": [ "MILLIE E. HERSHNER, Petitioner v. N.C. DEPARTMENT OF ADMINISTRATION and N.C. HUMAN RELATIONS COMMISSION, Respondent" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere unchallenged findings of fact support the decisions of the administrative law judge and state personnel commission, the trial court did not err in adopting their findings of fact and conclusions of law. Where respondent failed at trial to present evidence to support the alleged bases for petitioner\u2019s termination, the trial court did not err in affirming the decisions of the administrative law judge and state personnel commission that petitioner\u2019s termination was wrongful. Where the state personnel commission had a quorum at the time it commenced business, it was authorized to issue a decision.\nI. Factual and Procedural Background\nMillie Hershner (petitioner) was employed by the North Carolina Department of Administration (DOA), Human Relations Committee (HRC) (collectively, respondent) as a staff attorney. Citizens who believe their rights under the Fair Housing Act have been violated can file complaints with the HRC. As part of her employment duties, petitioner assisted investigators in these cases and helped to determine whether HRC should hear them.\nIn 2005, petitioner was hired as an Attorney I for respondent. She was selected for this position over another applicant, Richard Boulden. In 2006, Boulden was selected for an Attorney II position, making him petitioner\u2019s supervisor. Prior to 2006, petitioner had only one disagreement with Boulden. At the time, Boulden, a case investigator, had determined that a case had cause, while petitioner determined that it did not. Subsequent to his promotion, Boulden did not train petitioner, or meet with her to establish any kind of work plan or standards, as required by respondent\u2019s \u201cPerformance Management System.\u201d However, on Boulden\u2019s first review of petitioner\u2019s work, he gave her a negative performance rating. Petitioner subsequently advised Boulden that he could not rate her performance negatively without stating the basis for the rating; Boulden then amended the performance ratings, so that they were positive, but in the lower range.\nFollowing the low rating, petitioner contacted the complainants in cases on which she had previously worked. One such complainant, Virginia Radcliffe (Radcliffe), had threatened to sue HRC. On 3 January 2008, Boulden contacted Radcliffe, informed her that HRC was no longer working on her case, and told her that he would be the sole point of contact between Radcliffe and respondent. Boulden claimed at the hearing that he had overheard petitioner speaking with Radcliffe on the telephone later that day, although he did not raise the issue with petitioner at the time.\nOn 9 June 2008, Boulden informed petitioner of a disciplinary meeting concerning her conversation with Radcliffe on 3 January 2008. On 11 June 2008, petitioner received a Final Written Warning for unacceptable personal conduct, specifically insubordination, with regard to her continued contact with Radcliffe. This letter outlined five numbered rules that petitioner had been expected to follow. There was no evidence presented that petitioner had violated any of these rules, or that petitioner had any subsequent contact with Radcliffe.\nOn 24 August 2009, petitioner was dismissed for unacceptable personal conduct, including conduct unbecoming a State employee that was detrimental to State service, violation of a known work rule, and insubordination. Specifically, three acts were alleged as the basis for this dismissal: (1) petitioner sent two letters to Radcliffe, containing allegedly confidential information; (2) petitioner contacted Stephanie Williams (Williams), another complainant, and informed her that she believed Williams' case had \u201ccause,\u201d before a final determination had been made by HRC; and (3) petitioner had been instructed to work on. a single assignment, to the exclusion of others, and yet continued to work on other assignments. John Campbell, Executive Director of HRC (Campbell) admitted that petitioner was not fired due to a failure to meet expectations, a failure to do her job, or unsuccessful job performance due to lack of skill or effort. Further, an HRC Supervising Investigator, Maggie Faulcon, observed that she had \u201cnever heard of anyone ever even being disciplined for discussing the likelihood of the determination with a party, and for certain, never heard of anyone losing their job over such a thing.\u201d\nOn 4 December 2009, petitioner filed a petition for a contested case hearing in the Office of Administrative Hearings (OAH). On 3 February 2012, Administrative Law Judge Donald W. Overby (ALJ) issued his decision, and held that respondent\u2019s dismissal of petitioner was unwarranted and should be reversed. Respondent appealed the AL Js decision to the State Personnel Commission. On 23 May 2012, the SPC issued its decision and order, adopting the findings of fact and conclusions of law of the AU, and affirming the decision in favor of petitioner. Respondent appealed to the Superior Court of Wake County. On 11 January 2013, the trial court affirmed the decision of the SPC, and ordered that petitioner be reinstated with back pay and benefits.\nRespondent appeals.\nII.Standard of Review\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. Div. of Soc. Servs., 360 N.C. 384, 386, 628 S.E.2d 1, 2 (2006).\n\u201c[W]e consider de novo whether the Commission erred in reaching its conclusion that \u2018just cause\u2019 existed for petitioner\u2019s termination.\u201d Amanini v. N.C. Dep\u2019t of Human Res., 114 N.C. App. 668, 678, 443 S.E.2d 114, 120 (1994).\nIII.Adoption of Findings and Conclusions bv Trial Court\nIn its first argument, respondent contends that the trial court erred in adopting the findings of fact and conclusions of law of the AL J and SPC. We disagree.\nThe AL J made one hundred and twenty five findings of fact, which were adopted by the SPC, and ultimately adopted by the trial court. Respondent challenges the evidentiary support for only ten of these findings. Those findings which respondent does not challenge are binding upon this court. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).\nEven assuming arguendo that respondent is correct, and that these ten findings were not supported by evidence in the record, there were one hundred and fifteen unchallenged findings. We hold that these remaining findings of fact support the AL J\u2019s conclusions of law. These conclusions of law support the decisions of the SPC and trial court to affirm the AL J\u2019s decision.\nThis argument is without merit.\nIV.Affirming the AL J and SPC\nIn its second argument, respondent contends that the trial court erred in affirming the decisions of the AL J and SPC. We disagree.\nRespondent contends that petitioner was dismissed due to violations of guidelines, particularly those in the Final Written Warning dated 11 June 2008, relating to the disclosure of confidential information and contacting a complainant. Respondent contends that petitioner\u2019s violation of these guidelines constituted just cause for petitioner\u2019s dismissal.\nAt trial, respondent supported its claim that petitioner\u2019s conduct was unbecoming a State employee with two letters, written by petitioner to Radcliffe, which respondent contends contained confidential information about cases and derogatory remarks about petitioner\u2019s supervisor and HRC. However, respondent failed to offer any evidence that the information in these letters was confidential. Respondent also failed to present evidence that these letters were detrimental to State service simply because they may have contained negative remarks concerning petitioner\u2019s supervisor. The ALJ concluded that \u201c[t]he Respondent failed to meet its burden to establish that any information released by the Petitioner... was confidential to anyone other than the Petitioner, who is free to waive that confidentiality as she chooses.\u201d The ALJ also concluded that \u201c[t]he Respondent failed to meet its burden to establish that the release of information by Ms. Hershner was detrimental to state service simply because it may have been negative regarding one Supervisor!)]\u201d These conclusions were affirmed by the SPC and trial court.\nRespondent also contended that petitioner was dismissed, in part, for the willful violation of a known work rule, specifically for her alleged disclosure to Williams of the status, of her case. However, respondent presented no evidence that this rule applied to HRC attorneys such as petitioner. Evidence in the record instead supported a finding that this rule applied to the non-attorney investigators, and that investigators regularly disregarded this rule. Petitioner\u2019s supervisor testified that he had never told petitioner that this policy was grounds for dismissal. One investigator testified that such a policy did not apply to attorneys, and that she had not heard of investigators being disciplined for discussing preliminary determinations with complainants. The ALJ concluded, based upon this evidence, that the State had not met its burden of establishing that this policy existed, or that such a policy was enforced prior to being used as a basis to discipline petitioner.\nFinally, respondent alleged as its third basis for petitioner\u2019s dismissal that petitioner was insubordinate, in that she willfully refused to carry out a reasonable order from her supervisor. Respondent contends that this directive was to work on nothing but an appellate brief for one specific case. However, the directive was for petitioner to make the brief her \u201ctop priority,\u201d not to cease all other work. The ALJ found that the case in question was ultimately dismissed as a result of her supervisor\u2019s conduct, not as a result of petitioner\u2019s work. The ALJ further concluded that:\nThe Respondent failed to establish its burden that the Petitioner was insubordinate in her handling of the writing of the Appellate Brief, when she had been commended by the Executive Director of the Agency for postponing her vacation to finish a brief, putting her work ahead of her personal life, she had never missed a filing deadline in her work at the HRC, the Petitioner still had fifteen days remaining within which to finish the brief before its due date when she was placed on administrative leave by the Agency Counsel, the HRC Agency Counsel eventually decided to abandon the appeal without ever filing the brief, and the very day the Petitioner was placed on Administrative leave she was told by the Agency Counsel that the brief was only a \u201ctop priority\u201d not her only priority.\nWe have previously held that, \u201caccording to the Commission\u2019s regulations, \u2018just cause\u2019 for dismissal has been divided into two basic categories \u2014 unsatisfactory job performance and personal conduct (misconduct) detrimental to State service.\u201d Amanini, 114 N.C. App. at 679, 443 S.E.2d at 120. In Amanini, we held that there was a distinction between the two categories:\nThe JOB PERFORMANCE category is intended to be used in addressing performance-related inadequacies for which a reasonable person would expect to be notified of and allowed an opportunity to improve. PERSONAL CONDUCT discipline is intended to be imposed for those actions for which no reasonable person could, or should, expect to receive prior warnings.\nId. at 679, 443 S.E.2d at 120-21. In the instant case, the conduct at issue involved job performance, the first category. Alleged infractions under this category require prior notice and opportunity to improve. As the ALJ found, however, petitioner had never received such warning.\nWe hold that petitioner\u2019s termination, based upon disclosure of information which respondent failed to prove was confidential, violation of a rule which respondent failed to prove was in effect, and disobedience of an instruction which was not, in fact, disobeyed, was not supported by just cause. The trial court did not err in affirming the decisions of the ALJ and SPC that respondent lacked just cause to terminate petitioner\u2019s employment.\nThis argument is without merit.\nC. Whether a Quorum Existed\nIn its third argument, respondent contends that the SPC lacked the authority to make its decision because a quorum of its members was not present. We disagree.\nOf the nine members of the SPC, seven were present when petitioner\u2019s case was heard. Once the session of the SPC had opened, those with conflicts were asked to recuse themselves; two did so, leaving five remaining SPC members. Respondent contends that five members did not constitute a quorum, and that the SPC lacked authority to. rule on petitioner\u2019s case.\nAt the time of petitioner\u2019s case, the SPC required a quorum of six in order to hear cases. N.C. Gen. Stat. \u00a7 126-2\u00a9 (2011). The term \u201cquorum\u201d is not defined in Chapter 126 of the North Carolina General Statutes. Black\u2019s Law Dictionary defines a quorum as \u201c[t]he minimum number of members... who must be present for a deliberative assembly to legally transact business[,]\u201d but does not state at what time during the proceedings a quorum should be determined. Black\u2019s Law Dictionary, 1370 (9th ed. 2009). However, several other North Carolina statutes note that once a person is deemed present for quorum purposes, he is deemed present for the remainder of that meeting. See N.C. Gen. Stat. \u00a7\u00a7 55-7-25(b), 55A-7-22(a) (2013). We hold that a quorum of the SPC is to be determined at the beginning of a meeting; once the meeting is opened, the SPC may conduct business regardless of subsequent recusals that may reduce the number of members voting on a particular issue below the number required for a quorum.\nIn the instant case, when the SPC commenced business, seven members were present, exceeding the six required for a quorum. At that time, a quorum was established. Respondent cites no authority to support the contention that this quorum was subsequently nullified by the recusal of two of its members. We hold that the SPC had a quorum, and therefore had the authority to hear petitioner\u2019s case.\nThis argument is -without merit.\nNO ERROR.\nJudges GEER and ERVIN concur.\n. In August of 2013, N.C. Gen. Stat. \u00a7 126-2(f) was amended to read \u201cFive members of the Commission shall constitute a quorum.\u201d N.C. Gen. Stat. \u00a7 126-2(f) (2013). However, at the time of petitioner\u2019s hearing before the SPC, the statute required six members to constitute a quorum.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "John Walter Bryant and Amber J. Ivie for petitioner-appellee.", "Roy Cooper, Attorney General, by Ann Stone, Assistant Attorney General, for respondent-appellant." ], "corrections": "", "head_matter": "MILLIE E. HERSHNER, Petitioner v. N.C. DEPARTMENT OF ADMINISTRATION and N.C. HUMAN RELATIONS COMMISSION, Respondent\nNo. COA13-790\nFiled 4 March 2014\n1. Administrative Law \u2014 termination of state employment\u2014 adoption of findings and conclusions\nIn an action arising from the termination of a state employee, the trial court did not err in adopting the findings and conclusions of the administrative law judge and State Personnel Commission where unchallenged findings of fact supported the decisions.\n2. Public Officers and Employees \u2014 termination of employment \u2014 no just cause\nThe trial court did not err by affirming the decisions of the administrative law judge and the State Personnel Commission that respondent state agency lacked just cause to terminate petitioner\u2019s employment. Respondent did not prove that allegedly confidential information disclosed by petitioner was confidential, did not prove that a rule allegedly violated by petitioner was in effect, or that petitioner in fact disobeyed an instruction as contended.\n3. Administrative Law \u2014 initial quorum \u2014 recusals\nThe State Personnel Commission (SPC) had a quorum where seven members were present when business was commenced, exceeding the six required for a quorum. That quorum was not nullified by the subsequent recusal of two members.\nAppeal by respondent from order entered 11 January 2013 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 11 December 2013.\nJohn Walter Bryant and Amber J. Ivie for petitioner-appellee.\nRoy Cooper, Attorney General, by Ann Stone, Assistant Attorney General, for respondent-appellant." }, "file_name": "0552-01", "first_page_order": 562, "last_page_order": 568 }