{ "id": 8571184, "name": "EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA v. BETTY LACHMAN", "name_abbreviation": "Employment Security Commission v. Lachman", "decision_date": "1982-05-04", "docket_number": "No. 146A81", "first_page": "492", "last_page": "507", "citations": [ { "type": "official", "cite": "305 N.C. 492" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "278 S.E. 2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": -1 }, { "cite": "52 N.C. App. 368", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170295 ], "year": 1981, "opinion_index": -1, "case_paths": [ "/nc-app/52/0368-01" ] }, { "cite": "233 S.E. 2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "283 S.E. 2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567539 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0312-01" ] }, { "cite": "42 U.S.C. \u00a7 503", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1976, "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1021, "char_count": 31348, "ocr_confidence": 0.776, "pagerank": { "raw": 2.795495150479681e-07, "percentile": 0.8363559033750616 }, "sha256": "944ffd44d02c80c7d8f18cbb80da9adbeae92f218df1971d241efeb0ffc12552", "simhash": "1:064781a68537fe4b", "word_count": 5224 }, "last_updated": "2023-07-14T14:52:50.465071+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA v. BETTY LACHMAN" ], "opinions": [ { "text": "MEYER, Justice.\nBetty Lachman was discharged from her job with the ESC by letter dated 24 February 1978. After exhausting all internal grievance procedures provided by the ESC, she appealed to the State Personnel Commission. Her appeal was heard on 19 April 1979 by E. D. Maynard III, hearing officer for the State Personnel Commission.\nThe hearing officer made twenty-nine Findings of Fact, a summary of which follows: Ms. Lachman was a former employee of the ESC who had worked as a records clerk in the Claims Division. At approximately 2:00 p.m. on 23 February 1978, Ms. Minda Bunn, Ms. Lachman\u2019s supervisor, asked Ms. Lachman whether she had begun working on some reports, the processing of which had been delayed due to problems with a computer. Ms. Lachman replied that she could not do this work because she felt ill.\nMs. Bunn then went to see Mr. Hugh Ogburn, Chief of the Benefits Division, who had informed Ms. Lachman in January that the reports needed to be processed as quickly as possible, about what she felt was Ms. Lachman\u2019s refusal to perform her work. She could not see Mr. Ogburn then, but did discuss the situation with Mr. Carl Light, Assistant to Mr. Ogburn. They both then talked to Mr. Ogburn, who suggested that Mr. Light have a meeting with Ms. Lachman and Ms. Bunn, at which time Ms. Bunn would again instruct Ms. Lachman to process the reports. Mr. Light then had Mr. Allen Marshburn find Ms. Lachman and bring her to a meeting in Mr. Light\u2019s office.\nPresent at this meeting were Ms. Lachman, Ms. Bunn, Mr. Light and Mr. Marshburn. When Ms. Lachman arrived at the meeting at approximately 2:30 p.m., Mr. Light asked her how she was. She replied that she did not feel well. Mr. Light said that Mr. Ogburn wanted the reports by the end of the month, and he did not want Mr. Ogburn angry with him if they were not ready. Mr. Light said that he wanted Ms. Lachman to do the reports. She then told Mr. Light that she was feeling faint, dizzy and nauseous, and that work with the computer required by the reports would aggravate these symptoms. Mr. Light then stated that the reports had to be done and asked Ms. Lachman why she was at work if she were sick. Mr. Light suggested that if she were sick, she should take sick leave and go home. Ms. Lachman said that she could still do routine work and that as long as she could do some light work, she didn\u2019t feel it was necessary to go home. Mr. Light reiterated that he felt that if Ms. Lachman were sick, she should be at home. Ms. Lachman disagreed and said that she felt that she should stay at the office as long as she could do some work, and that she should stay, even if she couldn\u2019t process the wage reports. Mr. Light then said he was going to let Ms. Bunn tell Ms. Lachman what to do. Ms. Bunn told her she had to do the wage reports by hand if necessary. Ms. Lachman and Ms. Bunn then discussed this; Ms. Lachman told Ms. Bunn that because she was dizzy, disoriented and nauseous, she could not work with the computer. Mr. Light then told Ms. Lachman if she couldn\u2019t do the reports she would have to take sick leave. Ms. Lachman replied that she did not feel she should have to take sick leave in that she was able to do some work and was not contagious. Ms. Lachman told Mr. Light that she had already used the sick leave that she had accumulated in January and February of that year. Feeling (for whatever reason) that this conversation was leading to her dismissal, Ms. Lachman told Mr. Light that he could fire her if he wanted to, but that she was not able to do the requested work. Mr. Light responded that Ms. Lachman could either go to the computer and do the work or she could go home on sick leave.\nAlthough no one but Ms. Lachman had mentioned her dismissal in this meeting, she took Mr. Light\u2019s last remark to mean that she was dismissed. Ms. Lachman then said that she would go home and stay. Mr. Light, thinking that she was resigning, told Ms. Lachman that if she was quitting he wanted a written statement to that effect; Ms. Lachman\u2019s response was that she didn\u2019t want to make a statement, that she had said all she had to say.\nMs. Lachman then went to her desk, removed her personal effects and left the building. This was at approximately 3:00 p.m. Ms. Lachman\u2019s usual quitting time was at 4:45 p.m. Ms. Bunn observed Ms. Lachman cleaning out her desk and leaving but did not question her about this.\nAt the conclusion of the meeting, Mr. Light did not believe Ms. Lachman was resigning; it was his impression, from similar past incidents, that she was leaving on sick leave, and would report the next day.\nWhen Ms. Lachman left the meeting on 23 February 1978, she believed she had been dismissed. However, no one had told her this, and she was the only person to bring up the subject of dismissal in the meeting.\nMs. Lachman did not report to work the next day; neither did she call in to notify anyone that she would not report for work. She did not go to work because she believed that she had been dismissed, and therefore, that she was not expected to call in.\nMs. Lachman made a doctor\u2019s appointment the next day. That morning, before going to the doctor, she went to the ESC business office and turned in her weekly and monthly time sheets to Ms. Merle Martin. She did this in order to get her check for that month on her regular pay day. Ms. Lachman told Ms. Martin that she was handing in her time sheets because she had been terminated. Sometime later, the ESC Personnel Officer, Mr. James McGaughey, came by Ms. Martin\u2019s office. Ms. Martin mentioned that Ms. Lachman had come in and handed in her time sheets, and that these needed to be taken to Ms. Lachman\u2019s unit. Mr. McGaughey commented that it appeared Ms. Lachman had \u201cabandoned\u201d her job, and offered to take the sheets to the Benefits Division.\nMr. McGaughey took Ms. Lachman\u2019s time sheets to Mr. Light. Mr. Light then went to Mr. Ogburn and told him that it appeared that Ms. Lachman had quit. Mr. Light made this observation based upon Ms. Lachman\u2019s failure to report for work or to call in, and her turning in her time sheets. Mr. Ogburn asked Mr. Light to furnish him with a memorandum of the events which led up to the situation on 24 February 1978. Mr. Light gave Mr. Ogburn a memorandum as requested later that day. In this memorandum, Mr. Light recommended that Ms. Lachman be dismissed. Sometime that afternoon, Mr. Ogburn sent Ms. Lachman the following letter dismissing her:\nDear Ms. Lachman:\nOn February 23, 1978, you refused to accept a reasonable and proper assignment of work from, an authorized supervisor of this Agency. This action on your part is a direct act of insubordination.\nImmediately after refusing this assignment of work, you removed your personal belongings from your desk and left the building at approximately 2:45 p.m.\nSince you failed to report for work or call in on February 24, 1978, we consider this action as an indication of your intention to abandon the job. We have, therefore, terminated you as of 4:45 p.m.\u2018on February 23, 1978.\nSincerely,\nHugh D. Ogburn\n(Emphasis added.)\nAt no time did anyone in the Benefits Division attempt to contact Ms. Lachman or to ascertain the reason for her absence on 24 February 1978. Ms. Lachman did visit a doctor on 24 February 1978; he diagnosed her condition as bronchitis with \u201cinvolvement of the inner ear.\u201d She had suffered from bronchitis periodically and as a result of this, she was not able to accumulate sick leave. Ms. Lachman\u2019s earlier bouts with bronchitis had depleted her earned sick leave for the first two months of 1978. This was the reason she had no earned sick leave on 23 February 1978. However, she did have sick leave for 1978 which could have been advanced to her to cover an absence.\nMs. Lachman appealed her dismissal through the ESC\u2019s departmental grievance procedure. Following final adverse agency decision, she appealed her dismissal to the State Personnel Commission, alleging lack of just cause for her dismissal.\nBased on the above Findings of Fact, the hearing officer made the following five Conclusions of Law:\n1. Under the authority of North Carolina General Statutes \u00a7 126-35 and 37, the State Personnel Commission has jurisdiction to hear and decide Petitioner\u2019s [Ms. Lachman] appeal.\n2. Respondent [ESC] dismissed Ms. Lachman by letter on February 24, 1978. The letter of dismissal is clear on its face that Respondent dismissed Petitioner for \u2018abandoning\u2019 her employment. Although Ms. Lachman\u2019s alleged insubordination is mentioned in the letter of dismissal, that letter is so written that the only reasonable construction which can be made is that Petitioner was dismissed solely for \u2018abandoning\u2019 her employment.\n3. Respondent, however, contends that Ms. Lachman, was also dismissed for insubordination. Even if all of Respondent\u2019s evidence which was offered on this point is accepted as true, Respondent has not carried its burden of proving an insubordinate act of Petitioner on February 23, 1978. Insubordination is defined in the State Personnel Policy Manual as \u2018[RJefusal to accept a reasonable and proper assignment from an authorized supervisor.\u2019 Employee Relations, pages 5-6. Insubordination carries the clear implication that the refusal which is the basis of the offense is a willful refusal; that is, the employee was faced with a choice of performing or not performing a given order (without such outside considerations as broken equipment, ill health, unavailability of necessary materials, etc.) and willfully chose not to obey the reasonable order of an authorized supervisor. Respondent has not shown such a willful refusal in this case. At most, Respondent has shown that Petitioner was unable, but did not refuse, to perform the work requested. Being unable to perform a reasonable work order does not denote a refusal or insubordination. Therefore, even if Ms. Lachman had been dismissed for insubordination, which she clearly was not, Respondent did not carry the necessary burden of proof.\n4. Respondent had the burden of proving Petitioner \u2018abandoned\u2019 her employment. Had Respondent not dismissed Ms. Lachman on this basis, it would have been possible for Respondent to treat Petitioner\u2019s actions as constituting a voluntary resignation without notice. If Ms. Lachman had then appealed, Petitioner would have had the burden of proving that she did not resign, but had been dismissed instead. However, Respondent chose to dismiss Petitioner, and therefore, must carry the burden of proving that she abandoned her job.\n5. This hearing officer is not familiar with the charge that an employee has \u2018abandoned\u2019 his employment. However, it may be assumed that an \u2018abandonment\u2019 is similar to a voluntary resignation. Respondent must prove Ms. Lachman left her employment with the intention not to return. Respondent has shown that Petitioner\u2019s actions on February 23, 1978 and February 24, 1978 gave rise to the inference that Ms. Lachman had quit her job. However, this is all that Respondent has shown. When Respondent chose to dismiss Petitioner for \u2018abandoning\u2019 her job, it took on the burden of proving just cause to dismiss Petitioner for this charge. North Carolina General Statutes \u00a7 126-35. Just cause requires more proof than an inference, or a conclusion. The burden of proof Respondent must meet is that the greater weight of the evidence must support Respondent\u2019s reason for dismissal. While the evidence of Ms. Lachman\u2019s actions supports Respondent\u2019s charge of job \u2018abandonment\u2019, Petitioner\u2019s actions also support her contention that her actions were motivated by her belief that she had been dismissed. It cannot be said that the greater weight of the evidence proves Respondent\u2019s charge of job \u2018abandonment\u2019; the competent evidence gives equal support to the contentions of Respondent and Petitioner. In such a situation, Respondent has failed to carry the burden of proof to establish just cause.\nBased on the twenty-nine Findings of Fact and five Conclusions of Law, the hearing officer recommended that the ESC reinstate Ms. Lachman to the same level position from which she had been dismissed, award her her net pecuniary loss, and reinstate all her benefits of employment such as annual and sick leave as if she had not been dismissed.\nThe ESC gave notice of appeal from this order, and oral arguments were heard on the matter by the full State Personnel Commission at its meeting of 17 August 1979. The Commission adopted the Findings of Fact and Conclusions of Law of the hearing officer as its own and entered essentially the same order as recommended by the hearing officer, with the additional provision that the letter of dismissal serve as a first-level reprimand for Ms. Lachman\u2019s conduct of 23 February 1978.\nPursuant to Article 4 of Chapter 150A of the General Statutes, the Administrative Procedure Act, the ESC appealed from the decision of the full Commission to the Superior Court, Wake County. While that court found that the ESC had made numerous exceptions to the Findings of Fact and Conclusions of Law of the hearing officer, it ruled that the appeal presented two primary issues of law for resolution: (1) whether the exclusion of three exhibits offered into evidence at the hearing was error, and (2) whether the record as a whole discloses that the Conclusions of Law are supported by the Findings of Fact.\nThe court ruled adversely to the Employment Security Commission which then gave notice of appeal to the Court of Appeals. That court, in an opinion filed 2 June 1981, ruled that the State Personnel Commission had no jurisdiction to hear Ms. Lachman\u2019s appeal and reversed and remanded the case to the Superior Court with directions that it order the State Personnel Commission to dismiss her appeal. This Court allowed Ms. Lachman\u2019s petition for a writ of certiorari on 3 November 1981.\nThe first question presented by this appeal is whether the State Personnel Commission had jurisdiction to hear Ms. Lachman\u2019s grievance appeal. We hold that it did. Therefore, the Court of Appeals erred in dismissing the appeal.\nThe Commission\u2019s jurisdiction was never challenged by either party in the proceedings below. The Court of Appeals ruled ex mero motu that the State Personnel Commission lacked jurisdiction because Ms. Lachman had not been continuously employed by the State for five years so as to come within the coverage of Chapter 126 of the General Statutes under which the appeal was brought. See G.S. \u00a7 126-5(d)(l).\nChapter 126 sets up a system of personnel administration for the State. G.S. \u00a7 126-5 defines the class of employees that are covered by the provisions of the chapter. Section 126-5(d)(l) provides:\n(d) Except as to the policies, rules and plans established by the Commission pursuant to G.S. 126-4(1), 126-4(2), 126-4(3), 126-4(4), 126-4(5), 126-4(6), 126-7, and except as to the provisions of Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to:\n(1) An employee of the State of North Carolina who has not been continuously employed by the State of North Carolina for the immediate five preceding years.\nAs correctly pointed out by the Court of Appeals, none of the exceptions mentioned in Section (d) apply to the case sub judice.\nArticle 8 of Chapter 126 provides the grievance procedure for State employees when their grievances do not allege discrimination because of age, sex, race, color, national origin, religion, creed, physical disability, or political affiliation. G.S. \u00a7 126-34. G.S. \u00a7 126-39 provides:\nFor the purposes of [Article 8], except for positions subject to competitive service and except for appeals brought under G.S. 126-16 and 126-25, the terms \u2018permanent State employee,\u2019 \u2018permanent employee,\u2019 \u2018State employee\u2019 or \u2018former State employee\u2019 as used in this Article shall mean a person who has been continuously employed by the. State of North Carolina for five years at the time of the act, grievance, or employment practice complained of.\n(Emphasis added.)\nThe Court of Appeals ruled that under this section and G.S. \u00a7 126-5(d)(l), Ms. Lachman had to be employed continuously by the State for the five years immediately preceding 24 February 1978 in order to avail herself of the grievance procedures established for State employees in Chapter 126.\nDefendant Lachman correctly contends, and the Employment Security Commission conceded in oral argument, that the regulations promulgated under the Administrative Procedure Act make all ESC employees subject to competitive service. 1 N.C.A.C. 8C .0602(b)(1). Therefore, they are exempted from the five-year requirement and are covered by the grievance procedure established by Article 8 of Chapter 126. Indeed, G.S. \u00a7 126-39, supra, provides coverage for competitive service employees.\nWhile it is true, as the ESC argues, that the record does not show affirmatively that Ms. Lachman was a competitive service employee, it does establish that she worked as a records clerk for the ESC. This Court takes judicial notice, pursuant to G.S. \u00a7 150A-64, that employees of the ESC are made subject to competitive service under Rule .0602(b)(1) of Title I of the North Carolina Administrative Code, Chapter 8, Subchapter C, as adopted by the State Personnel Commission, effective 1 February 1976. This Court also takes judicial notice, pursuant to G.S. \u00a7 8-4, of the federal statutory requirement of the establishment and maintenance of personnel standards on a merit basis in order for the ESC to qualify for federal funding. 42 U.S.C. \u00a7 503(a)(1) (1976); 29 U.S.C. \u00a7 49d(b) (1976). Our Legislature has accepted this requirement.\nThe Employment Security Commission shall be charged with the duty ... to do and perform all things necessary to secure to this State the benefits of [the federal act establishing the national employment system]. . . . The provisions of the said act of Congress, as amended, are hereby accepted by this State . . . and this State will observe and comply with the requirements thereof.\nG.S. \u00a7 96-20.\nThere were sufficient facts before the hearing officer to establish the jurisdiction of the State Personnel Commission to hear Ms. Lachman\u2019s appeal. Contrary to the hearing officer\u2019s Conclusion No. 1, supra, however, the authority for its jurisdiction was under G.S. \u00a7\u00a7 126-34 and 126-39 and not G.S. \u00a7\u00a7 126-35 and 126-37.\nHaving thus determined that the State Personnel Commission had jurisdiction to hear Ms. Lachman\u2019s appeal, we must now determine whether the trial court correctly affirmed the decision of the Commission. The defendant contends that the trial court did not err in affirming that decision. On the other hand, the ESC argues that the court erred because, inter alia, the hearing officer erroneously (1) concluded that Ms. Lachman was fired solely for abandoning her job, (2) excluded certain exhibits and testimony offered into evidence by the ESC, and (3) qualified the definition of insubordination.\nThe issue presented by the ESC\u2019s first contention is whether the conclusion that Ms. Lachman was fired solely for job abandonment is unsupported by substantial evidence in view of the entire record. G.S. \u00a7 150A-5K5). See Overton v. Board of Education, 304 N.C. 312, 283 S.E. 2d 495 (1981). In ruling on this issue, we must consider all of the evidence, both that which supports the Conclusion of the hearing officer and that which detracts from it. Thompson v. Board of Education, 292 N.C. 406, 233 S.E. 2d 538 (1977). \u201cThe \u2018whole record\u2019 test does not allow the reviewing court to replace the [Commission\u2019s] judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.\" 292 N.C. at 410, 233 S.E. 2d at 541.\nWe do not agree with the hearing officer\u2019s Conclusion that Ms. Lachman was dismissed solely for abandoning her employment (Conclusion No. 2, supra). Carl Light testified that he and Mr. Ogburn recommended that Ms. Lachman be dismissed based on her act of insubordination (refusing to either do the assigned work or take sick leave) and the apparent abandonment of her job. Moreover, contrary to the Conclusion of the hearing officer, we believe that the letter of dismissal, supra, clearly shows that the dismissal was for both insubordination and job abandonment.\nMs. Lachman\u2019s contention that if insubordination had been the real reason she was fired, her superiors would not have waited until the next day to fire her is answered in the record by testimony indicating that since Ms. Lachman had walked out on a prior occasion and later called in to request leave, they did not know whether or not she would call in on this occasion. Conclusion No. 2 is not supported by the evidence in the record, and thus must be reversed. The only Conclusion that can be supported by the record is that Ms. Lachman was dismissed for both insubordination and job abandonment.\nSecondly, the ESC contends that the hearing officer erred in excluding three exhibits and testimony pertinent thereto relevant to the issue of insubordination offered by the ESC. We first address the admissibility of Exhibit No. 1, a memorandum to Ms. Lachman from Minda Bunn dated 23 January 1978 which reads as follows:\nAttitude and Language Used in Presence of Accounting Department Personnel.\nThis will confirm my recent instructions for you to avoid any further contacts with our tax auditors in the Accounting Department. I have been informed that the vulgar language used and attitude shown in the presence of our tax auditors was unacceptable.\nUpon the advice of Mr. Ogburn, you are to avoid any further contacts with our tax personnel whether in person or by telephone.\nI am requesting that a copy of this report be placed in your personnel folder.\nCopy to: Minda Bunn\nMr. Ogburn\nMr. McGaughey X\nMs. Bunn testified that after Ms. Lachman received this memorandum, she became less cooperative and did not do as much work as she had normally done prior to the memorandum.\nThe hearing officer ruled this evidence irrelevant and refused to consider it in reaching his decision. While the ESC does not contend that the excluded exhibit and testimony would prove that Ms. Lachman was guilty of insubordination on 23 February 1978, it argues that they tend to show that she had a \u201crecent history of insolence, lack of cooperation with her supervisors, and a bad attitude generally.\u201d We agree that as evidence of her continuing insolent behavior toward her supervisor, the testimony and memorandum were relevant to her intentional insubordination on 23 February 1978 and should have been admitted and considered by the hearing officer. See 67 C.J.S. Officers \u00a7 133 (1978) (insubordination implies a general course of mutinous disrespectful or contumacious conduct).\nThe hearing officer also ruled that Exhibits Nos. 2 and 3 and the testimony relating to them were irrelevant. Exhibit No. 2 is an \u201cinteroffice communication\u201d dated 29 July 1977 from Minda Bunn to Carl Light concerning Ms. Lachman:\nEmployment Security Commission of North Carolina\nInteroffice Communication\nDate: July 29, 1977\nTO: Carl V. Light, Assistant Chief of Benefits\nFROM: Minda W. Bunn, Clerical Unit Supervisor (V) MB\nSubject: Bettie L. Lachman, Records Clerk (III), Pos. No. 13280\nThis morning when the monthly checks were distributed and Bettie Lachman received the notice that she would not get an increment, she said, \u2018That damn bitch in yonder kept me from getting my f-money, I\u2019m\u2019 .... I then interrupted her and told her to watch her language. She told me, \u2018You had better watch yours.\u2019 I told her that \u2018You had better shut up.\u2019 Nothing further was said by either of us pertaining to the above conversation. She later laid the attached note of apology on my desk. This memo is for whatever action you deem necessary.\n7-29-77 s/Mr. McGaughey \u2014 CVL\nExhibit No. 3 is the note from Ms. Lachman to Minda Bunn referred to in Exhibit No. 2:\nI\u2019m sorry I Out- (Illegible) \u2014I appoligize\nBut I ain\u2019t never been more mad!! T get mean when you mess with my green\u2019 as Margaret says.\nCan I appeal this in anyway??\nMs. Bunn testified that on 29 July 1977, Ms. Lachman became angry with her and left the work unit, apparently because she did not get a pay raise. The exhibits were written pursuant to this incident. The ESC argues that \u201cfor essentially the same reasons\u201d that the hearing officer should have considered Exhibit No. 1 and the testimony relative thereto, he should have considered this testimony and Exhibits 2 and 3. We do not agree.\nExhibit No. 1 and the testimony relating to it were relevant to the issue of insubordination because they showed a recent pattern of an insubordinate and uncooperative attitude on behalf of Ms. Lachman. These exhibits and this testimony relate only to one incident of anger on the part of Ms. Lachman because she failed to receive a pay increase some nineteen months before the act of insubordination at issue. They have no tendency to show Ms. Lachman\u2019s insubordination on 23 February 1978, and the hearing officer correctly refused to consider them. However, because of his erroneous refusal to consider Exhibit No. 1 and the testimony pertinent to it, a new hearing must be conducted in this matter. G.S. \u00a7 150A-51.\nThirdly, the ESC argues that the hearing officer erred in qualifying the definition of insubordination as set out in the State Employee\u2019s Handbook, \u201cRefusal to accept a reasonable and proper assignment from an authorized supervisor.\u201d (Conclusion No. 3, supra) After stating this definition, the hearing officer went on to conclude:\nInsubordination carries the clear implication that the refusal which is the basis .of the offense is a willful refusal; that is, the employee was faced with a choice of performing or not performing a given order (without such outside considerations as broken equipment, ill health, unavailability of necessary materials, etc.) and willfully chose not to obey the reasonable order of an authorized supervisor.\nWhile we agree that the refusal which is the basis of the offense is a willful refusal, see 44 C.J.S. Insubordination (1945); 67 C.J.S. Officers \u00a7 133; 76 Am. Jur. 2d Unemployment Compensation \u00a7 55 (1975), we do not agree that in order for the choice not to obey the authorized supervisor\u2019s reasonable order to be willful it must be made \u201cwithout such outside considerations as broken equipment, ill health, unavailability of necessary materials, etc.\u201d These considerations are factors in determining whether the order was reasonable, not whether the choice was willful.\nThe decision of the State Personnel Commission is affected by errors of law (1) in the exclusion of evidence and (2) in the qualification of the definition of insubordination. In addition, the Commission\u2019s Conclusion that Ms. Lachman was fired solely for job abandonment is unsupported by substantial evidence in view of the entire record. For these reasons there must be a new hearing. G.S. \u00a7 150A-51.\nThe panel below properly reversed the judgment of the trial court and remanded the cause, but for the wrong reason. The decision of the Court of Appeals is modified and the case remanded to that court for further remand to the Superior Court, Wake County, for the entry of an order requiring the State Personnel Commission to conduct, or cause to be conducted, a new hearing consistent with this opinion.\nModified and remanded.\n. Since the hearing officer ruled that the ESC had not proved job abandonment, and this ruling was based on substantial evidence, we consider only the ground of insubordination.\n. See footnote 2.", "type": "majority", "author": "MEYER, Justice." } ], "attorneys": [ "T S. Whitaker and Garland D. Crenshaw, Attorneys for Plaintiff-Appellee, Employment Security Commission.", "Blanchard, Tucker, Twiggs, Denson & Earls, P. A., by Irvin B. Tucker, Jr., Attorneys for Defendant-Appellant, Betty Lachman." ], "corrections": "", "head_matter": "EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA v. BETTY LACHMAN\nNo. 146A81\n(Filed 4 May 1982)\n1. State \u00a7 12\u2014 dismissal of Employment Security Commission employee \u2014 jurisdiction of State Personnel Commission over grievance appeal\nAn employee of the Employment Security Commission was a competitive service employee and thus was not required to have been continuously employed by the State for five years in order to avail herself of the grievance procedures established for State employees by G.S. Ch. 126. Therefore, the State Personnel Commission had jurisdiction under G.S. 126-34 and 126-39 to consider the employee\u2019s appeal from her dismissal by the Employment Security Commission although the evidence failed to show that she had been employed by the State for five years immediately preceeding her dismissal.\n2. State \u00a7 12\u2014 State employee \u2014 reason for dismissal \u2014 finding unsupported by record\nThe conclusion of the State Personnel Commission that defendant was fired as an employee of the Employment Security Commission solely for job abandonment was unsupported by substantial evidence in view of the entire record; rather, the evidence, including the letter of dismissal, showed that the dismissal was for both insubordination and job abandonment.\n3. State \u00a7 12\u2014 dismissal of State employee \u2014 evidence of insubordination\nA memorandum to defendant from her supervisor on 23 January 1978 concerning her attitude and language in the presence of tax auditors was relevant to the issue of insubordination on 23 February 1978 because it showed a recent pattern of an insubordinate and uncooperative attitude by defendant. However, an interoffice communication from defendant\u2019s supervisor on 29 July 1977, a note from defendant to her supervisor and testimony relating to defendant\u2019s language and actions on that date because she did not receive a pay increase was not competent to show defendant\u2019s insubordination on 23 February 1978.\n4. State \u00a7 12\u2014 State employee \u2014 meaning of insubordination\nThe refusal of a State employee to accept a reasonable and proper assignment from an authorized supervisor must be willful in order to constitute insubordination. However, a hearing officer of the State Personnel Commission erred in ruling that in order for the choice not to obey the authorized supervisor\u2019s reasonable order to be willful it must be made \u201cwithout such outside considerations as broken equipment, ill health, unavailability of necessary materials, etc.,\u201d since these considerations are factors in determining whether the order was reasonable, not whether the choice was willful.\nOn defendant\u2019s petition for certiorari to review the decision of the Court of Appeals which reversed the judgment of Braswell, Judge, entered 18 February 1980 in the Superior Court, WAKE County, affirming the order of the State Personnel Commission which required the Employment Security Commission (hereinafter ESC) to reinstate Betty Lachman to the position of records clerk with ESC from which she had been dismissed on 24 February 1978.\nThe primary issue in this case is whether the State Personnel Commission has jurisdiction to hear the grievance appeal of an employee of the ESC. We hold that it does. We also hold that for errors in the exclusion of certain evidence offered by the ESC and in the Conclusions made by the hearing officer, the decision of the Court of Appeals must be modified and the case remanded for a new hearing.\nT S. Whitaker and Garland D. Crenshaw, Attorneys for Plaintiff-Appellee, Employment Security Commission.\nBlanchard, Tucker, Twiggs, Denson & Earls, P. A., by Irvin B. Tucker, Jr., Attorneys for Defendant-Appellant, Betty Lachman.\n. Reported at 52 N.C. App. 368, 278 S.E. 2d 307 (1981). We allowed defendant\u2019s petition on 3 November 1981." }, "file_name": "0492-01", "first_page_order": 524, "last_page_order": 539 }