{ "id": 8519560, "name": "JAMES PARKS v. DEPARTMENT OF HUMAN RESOURCES", "name_abbreviation": "Parks v. Department of Human Resources", "decision_date": "1986-02-04", "docket_number": "No. 8510SC390", "first_page": "125", "last_page": "134", "citations": [ { "type": "official", "cite": "79 N.C. App. 125" } ], "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": "268 S.E. 2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564447 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0687-01" ] }, { "cite": "247 S.E. 2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "670" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553073 ], "year": 1978, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0222-01" ] }, { "cite": "256 S.E. 2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573771 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0696-01" ] }, { "cite": "249 S.E. 2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "39 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549915 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/39/0001-01" ] }, { "cite": "259 S.E. 2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "43 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552836 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/43/0493-01" ] } ], "analysis": { "cardinality": 733, "char_count": 18572, "ocr_confidence": 0.764, "pagerank": { "raw": 6.466952242803772e-08, "percentile": 0.39849852250073264 }, "sha256": "7512f88e14a0173c35491856667ff61a4d84ff387d55354a828728f751cb8bac", "simhash": "1:4ac63ca750559e73", "word_count": 2839 }, "last_updated": "2023-07-14T14:35:53.333939+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WEBB and PHILLIPS concur." ], "parties": [ "JAMES PARKS v. DEPARTMENT OF HUMAN RESOURCES" ], "opinions": [ { "text": "JOHNSON, Judge.\nThe question we must decide is whether a review of the whole record reveals that there is substantial evidence therein to support the Full Commission\u2019s ruling that petitioner was dismissed for just cause. We conclude that the court\u2019s order affirming the Full Commission\u2019s ruling is not supported by a review of the whole record.\nThe scope of review and power of the Superior Court in reviewing an agency decision is set forth in the Administrative Procedure Act as follows:\nThe court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the agency findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions; or\n(2) In excess of the statutory authority or jurisdiction of the agency; or\n(3) Made upon unlawful procedure; or\n(4) Affected by other error of law; or\n(5) Unsupported by substantial evidence admissible under G.S. 150A-29(a) or G.S. 150A-30 in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nIf the court reverses or modifies the decision of the agency, the judge shall set out in writing, which writing shall become a part of the record, the reasons for such reversal or modification.\nG.S. 150A-51.\nRespondent and petitioner improperly made motions for summary judgment in the Superior Court. As set forth hereinabove, the task of the Superior Court was to affirm, remand for further proceedings, reverse, or modify the Full Commission\u2019s decision after examining all of the competent evidence and pleadings which comprise the whole record to determine if there is substantial evidence in the record to support the administrative tribunal\u2019s findings and conclusions. See Community Sav. & Loan Ass\u2019n v. North Carolina Sav. & Loan Comm\u2019n, 43 N.C. App. 493, 259 S.E. 2d 373 (1979). However, respondent and petitioner\u2019s motions for summary judgment initiated a different inquiry by the court into whether there was a triable material issue of fact. See Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E. 2d 727 (1978), aff\u2019d per curiam, 297 N.C. 696, 256 S.E. 2d 688 (1979).\nPetitioner\u2019s right to judicial review is clearly set forth in G.S. 150A-51, supra. Respondent and petitioner\u2019s motions for summary judgment were procedurally incorrect. However, the trial court\u2019s order allowing respondent\u2019s motion for summary judgment was tantamount to affirming the Full Commission\u2019s ruling upholding petitioner\u2019s dismissal. The court\u2019s order was as follows:\nThis cause coming on before the undersigned judge on motion of respondent for summary judgment and it appearing to the court that there is no genuine issue as to any material fact and that the respondent is entitled to a judgment as a matter of law; It Is THEREFORE ORDERED, ADJUDGED AND Decreed that summary judgment is granted in favor of respondent against petitioner and that this action is dismissed with the costs to be taxed against the petitioner.\nThis Court has held that a statement by a Superior Court judge that an agency failed \u201cto support its Conclusion of Law that the Petitioner was grossly incompetent within the purview of G.S. 93D-13(a)(2)\u201d constituted a succinct and adequate statement of its reasons for reversing the agency\u2019s decision. Faulkner v. North Carolina State Hearing Aid Dealers & Fitters Bd., 38 N.C. App. 222, 226, 247 S.E. 2d 668, 670 (1978). In the case sub judice the court\u2019s order sufficiently sets forth a reviewable basis for affirming the Full Commission\u2019s ruling.\nWe now turn to the whole record which was before the court to review, and determine whether there is substantial, competent evidence which would support the Full Commission\u2019s ruling. In affirming the hearing officer\u2019s decision to uphold respondent\u2019s dismissal of petitioner the Full Commission adopted the Findings of Fact and Conclusions of the hearing officer as its own. In the opinion of the hearing officer we find that conclusion number two (2) raises the issue we must address on appeal. In pertinent part that conclusion is as follows:\nThe Petitioners\u2019 acts and omissions in the chairs incident constituted personal conduct, which is grounds for their immediate dismissals ....\nPetitioner contends that the whole record which was submitted to the court reveals that the Full Commission\u2019s decision to uphold respondent\u2019s dismissal of him was contrary to law. The argument forwarded by petitioner is that respondent may not dismiss him for performance of duty reasons until he has been given the warnings required by G.S. 126-35. See Jones v. Dep\u2019t of Human Resources, 300 N.C. 687, 268 S.E. 2d 500 (1980).\nOn 6 Feburary 1983 two directives were in effect relating to disciplinary action for abuse and neglect of residents by employees of the O\u2019Berry Center. These directives classify various infractions, whereby, an employee may be subject to specified disciplinary actions. Respondent contends that petitioner was dismissed with just cause for his personal conduct. Petitioner contends that all communications with him indicated that his dismissal was for actions which are classified in the directives as unsatisfactory performance of duties.\nO\u2019Berry Center promulgated an Administrative Policy Manual. The subjects of that manual are abuse, neglect and corporal punishment of residents. The policy section of the manual contains the following statement \u201cEmployees found guilty of abuse shall be terminated. Failure to report suspected abuse may be subject to disciplinary action.\u201d The definitional section of the manual contains five sections including one section entitled \u201cNeglect.\u201d\nIll Neglect: Any situation in which the staff do (sic) not carry out duties or responsibilities which in turn affects the health, safety or well being of a resident.\nExamples;\n\u2014Failure to implement programs as designed by the interdisciplinary team.\n\u2014 Failure to insure adequate intake of food or water.\n\u2014 Failure to assure resident is appropriately dressed.\n\u2014Neglect is failure to report appropriately any observed or suspected abuse.\n\u2014Leaving residents unattended.\n(emphasis ours and in original). We note that the examples listed in Section III all share the common element of an act of omission. This document is internally consistent in that the acts of omission, such as failure to report abuse, \u201cmay be subject to disciplinary action.\u201d However, when an employee commits acts of resident abuse that employee \u201cshall be terminated.\u201d The Administrative Procedure Manual, promulgated by O\u2019Berry Center, makes reference to the State Personnel Manual. The pertinent provisions of the policy statement in the State Personnel Manual are as follows;\nThe causes for dismissal fall into two categories: (1) causes relating to performance of duties, and (2) causes relating to personal conduct detrimental to State service. Suspension may be necessary in either category and may be used in accordance with the provisions of this policy under suspension.\n1. Performance of Duties. Employees who are dismissed for unsatisfactory performance of duties should receive at least 3 warnings: First, one or more oral warnings; second, an oral warning with a follow-up letter to the employee which sets forth the points covered in the discussion; third, a written warning which will serve notice upon the employee that a continuation of the unacceptable practices may result in specific pay losing disciplinary action or dismissal.\n(emphasis in original). Clearly suspension may be appropriate in cases of personal misconduct or unsatisfactory performance of duties. It is equally clear that three (3) warnings are required prior to dismissal of an employee for unsatisfactory performance of duties.\nThe State Personnel Manual also separately enumerates those causes for dismissal which are related to performance of duties and personal misconduct.\nPerformance of Duties \u2014 The following causes relating to the performance of duties are respresentative of those considered for suspension or dismissal: . . .\n2. Negligence in the performance of duties.\n(emphasis in original). Thus, the O\u2019Berry Center\u2019s Administrative. Procedure Manual and the State Personnel Manual categorize negligence as a cause for dismissal relating to performance of duties. Neither of these two directives pertinent to this case categorize negligence as falling within the realm of personal conduct.\nWe now turn to the question of whether petitioner\u2019s failure to report his observation of resident abuse should be classified as negligence. We find respondent\u2019s communications with petitioner helpful in this regard. The first letter petitioner received notifying him of his dismissal was from W. L. West, Chief of Residential Services.\nMr. James C. Parks 1219 Porter Street Goldsboro, N. C. 27530\nDear Mr. Parks:\nPursuant to the allegations which led to your suspension February 6, 1983, I wish to inform you of our decision. A thorough investigation of the allegations and the condition surrounding the incident reveal that you have been negligent in reporting observations which you admit were acts of resident abuse. Negligence in the performance of duties is in direct violation of State and O\u2019Berry policies. As a result of these violations, your employment at O\u2019Berry Center is terminated. . . .\n(emphasis ours). This letter reveals that respondent was terminated for negligence in performance of his duties. To further illustrate that this terminology was not the result of loose drafting we find that a letter dated 8 March 1983 written by Dr. Lyall affirmed the reason given for petitioner\u2019s termination.\nMr. James Parks 1219 South Porter Street Goldsboro, N. C. 27530\nDear Mr. Parks:\nOn February 24, 1983 and March 7, 1983, I met with you to discuss your grievance for termination of employment from O\u2019Berry Center.\nHaving been offered no additional information from you regarding the reason for your termination, I still find you negligent in reporting an act of resident abuse that you observed and I am upholding your termination. . . .\n(emphasis ours). Dr. Lyall upheld petitioner\u2019s dismissal because of petitioner\u2019s negligence. There were no warnings given to this employee for this unsatisfactory performance of his duty to report acts of resident abuse.\nRespondent contends that there is substantial evidence in the record to support its position that petitioner\u2019s failure to report patient abuse was personal conduct such that petitioner\u2019s dismissal for just cause was an appropriate disciplinary action. We hold that the trial court erred in affirming the Full Commission\u2019s decision to affirm petitioner\u2019s dismissal as being for just cause. The record that was before the trial court does not support a determination that respondent was entitled to a judgment as a matter of law. Both directives referred to hereinabove unquestionably support petitioner\u2019s assertion that respondent\u2019s termination of petitioner was an inappropriate disciplinary action. The trial judge had before him two letters which asserted that petitioner\u2019s negligence was the basis for terminating petitioner\u2019s employment. Petitioner has controverted respondent\u2019s contention that a permanent state employee may be dismissed for unsatisfactory performance of his duties prior to receiving the three warnings mandated by the State Personnel Manual.\nThe requirement of G.S. 126-35 pointed out in Jones, supra is that a permanent state employee is entitled to three separate warnings giving notice that his performance is unsatisfactory. Based on the whole record, we conclude that there was not substantial competent evidence which would support the Full Commission\u2019s conclusion that petitioner\u2019s actions should be classified as personal conduct such that he was dismissed for \u201cjust cause.\u201d\nReversed and remanded.\nJudges WEBB and PHILLIPS concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Lacy H. Thornburg, by Ann Reed, Special Deputy Attorney General, for the Department of Human Resources, appellee.", "Hulse & Hulse, by Herbert B. Hulse, for petitioner appellant." ], "corrections": "", "head_matter": "JAMES PARKS v. DEPARTMENT OF HUMAN RESOURCES\nNo. 8510SC390\n(Filed 4 February 1986)\n1. Administrative Law \u00a7 8\u2014 appeal to superior court from State Personnel Commission-summary judgment not proper \u2014 court\u2019s order sufficient for review\nPetitioner\u2019s right to judicial review of a State Personnel Commission opinion affirming the termination of his employment was clearly set forth in N.C.G.S. 150A-51, and respondent\u2019s and petitioner\u2019s motions for summary judgment were procedurally incorrect; however, the trial court\u2019s order allowing respondent\u2019s motion for summary judgment was tantamount to affirming the Full Commission\u2019s ruling upholding petitioner\u2019s dismissal and sufficiently set forth a reviewable basis for affirming the Full Commission\u2019s ruling.\n2. Master and Servant \u00a7 10\u2014 O\u2019Berry Hospital employee \u2014discharge for failure to report abuse \u2014no warnings given \u2014 reversed\nThe trial court erred by affirming the State Personnel Commission\u2019s decision to uphold petitioner\u2019s termination of employment at O\u2019Berry Hospital for failure to report abuse of residents where a review of the whole record revealed that the O\u2019Berry Center promulgated an Administrative Policy Manual which indicated that failure to report suspected abuse could result in disciplinary action while abuse could result in termination; the O\u2019Berry manual referred to the State Personnel Manual, which indicated that three warnings were required prior to dismissal of an employee for unsatisfactory performance of duties; the O\u2019Berry manual and the State manual characterized negligence as relating to performance of duties; two letters from O\u2019Berry officials to petitioner indicated that petitioner was .terminated for negligence in the performance of his duties; and there were no warnings given for the unsatisfactory performance of petitioner\u2019s duty to report acts of resident abuse. N.C.G.S. 126-35.\nAPPEAL by petitioner from Davis, James C., Judge. Judgment entered 18 January 1985 in Superior Court, WAKE County. Heard in the Court of Appeals 24 October 1985.\nOn 6 February 1983 petitioner James Parks was employed as a Health Care Technician by the Department of Human Resources at the O\u2019Berry Center in Goldsboro, North Carolina. As of 6 February 1983 petitioner had been employed continuously by the State of North Carolina for approximately seven (7) years. The O\u2019Berry Center is a residential treatment center for the mentally retarded.\nOn 6 February 1983 petitioner was on duty with another Health Care Technician, Johnny Earl Bryant. Petitioner and Bryant shared supervisory responsibility for 13 residents of the O\u2019Berry Center. Petitioner and Mr. Bryant worked on the B Shift from 6:30 a.m. to 3:00 p.m. Their responsibilities included providing general health care to respondent\u2019s residents in Environmental Living Complex VI. On 6 February 1983 petitioner went to eat his lunch at 11:00 a.m. Upon petitioner\u2019s return from lunch a resident named Richard was observed by petitioner standing near the door with two chairs around his neck. Petitioner did not report this observation to his superiors at O\u2019Berry Center. Mr. Bryant and petitioner were relieved by the C Shift and they left O\u2019Berry Center.\nAt 9:00 p.m. on 6 February 1983 Michael Burris, a developmental technician observed bruises on Richard\u2019s buttocks and shoulder. Mr. Burris informed management of Richard\u2019s bruises. O\u2019Berry Center management personnel initiated a preliminary investigation of the circumstances surrounding Mr. Burris\u2019 discovery of Richard\u2019s bruises. During the preliminary investigation a resident of the O\u2019Berry Center informed the management of the center that \u201cJohnny Bryant had hit Richard and him with a pool stick.\u201d A medical examination of Richard revealed that his bruises could have been caused by being struck by a cue stick. Mr. Bryant and petitioner were requested to return to O\u2019Berry Center for questioning.\nMr. Bryant and petitioner were interviewed separately by management personnel of O\u2019Berry Center. Mr. Bryant and petitioner each denied having any knowledge of Richard\u2019s bruises. However, petitioner volunteered his observation of Richard standing near a door with two chairs around his neck. Petitioner informed management that he had questioned Mr. Bryant with respect to this incident. Petitioner informed his interviewers that Mr. Bryant had admitted to him that he had placed the chairs around Richard\u2019s neck to prevent Richard from banging his head against the wall. Petitioner\u2019s statements were reduced to writing and used to confront Mr. Bryant about this incident. Mr. Bryant denied the charges and asserted that he had observed petitioner abusing the residents. On 6 February 1983 petitioner and Mr. Bryant were suspended following each other\u2019s allegations of patient abuse and their failure to report these incidents.\nOn 10 February 1983 petitioner was informed by letter that his negligence in reporting observations of resident abuse was in violation of State and O\u2019Berry policies. The letter written by Chief of Residential Services further informed petitioner that his employment at the O\u2019Berry Center was terminated effective 6 February 1983. Mr. Bryant received a similar letter. In compliance with procedures prescribed by the State Personnel Commission petitioner filed a grievance for wrongful termination. On 24 February 1983 and 7 March 1983 petitioner met with J. H. Lyall, Ph. D., Director of O\u2019Berry Center. On 8 March 1983 Dr. Lyall informed petitioner by letter that petitioner\u2019s termination would be upheld.\nPetitioner appealed from Dr. Lyall\u2019s decision to uphold his termination. On 15 September 1983 petitioner had a hearing before Joseph L. Totten, Hearing Officer for the State Personnel Commission. In an opinion dated 1 December 1983 the termination of petitioner\u2019s employment was upheld, but petitioner was awarded back pay, other employment benefits and attorney\u2019s fees not to exceed $300.00. Petitioner appealed to the Full State Personnel Commission which adopted the Hearing Officer\u2019s Conclusions of Law and Findings of Fact. The Full Commission affirmed the termination of petitioner\u2019s employment.\nPursuant to G.S. 150A-45 petitioner filed in Superior Court, Wake County, a petition for review of the Full Commission\u2019s decision. Petitioner and respondent moved the court for summary judgment. On 17 January 1985 the court denied petitioner\u2019s motion for summary judgment, but granted respondent\u2019s motion for summary judgment. Petitioner appeals.\nLacy H. Thornburg, by Ann Reed, Special Deputy Attorney General, for the Department of Human Resources, appellee.\nHulse & Hulse, by Herbert B. Hulse, for petitioner appellant." }, "file_name": "0125-01", "first_page_order": 153, "last_page_order": 162 }