Wiggins v. NC Dept. of Human Resources

413 S.E.2d 3 (1992)

105 N.C. App. 302

Phillip C. WIGGINS, Petitioner, v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, Respondent.

No. 918SC52.

Court of Appeals of North Carolina.

February 4, 1992.

*5 Paul L. Jones, Kinston, for petitioner appellee.

Attorney General Lacy H. Thornburg by Special Deputy Atty. Gen. David M. Parker, Raleigh, for respondent-appellant.

WELLS, Judge.

As his first assignment of error, respondent contends the trial court erred in concluding the findings of fact did not support the Commission's conclusion that petitioner was dismissed for just cause. We find no merit to this assignment.

A reviewing court may modify or reverse the agency's decision if the substantial rights of the petitioner may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:

(4) Affected by other error of law; (5) Unsupported by substantial evidence... in view of the entire record as submitted; or (6) Arbitrary or capricious.

N.C. Gen.Stat. § 150B-51(b) (1991). In the petition for judicial review, petitioner alleged, among other things, that respondent had "failed to provide sufficient evidence to overcome its burden of proof to support petitioner's dismissal." Petitioner further contended the Commission erred in concluding respondent had just cause to terminate his employment. If it is alleged on appeal that the agency's findings, conclusions, or decisions are unsupported by substantial evidence or that they are arbitrary or capricious, then the proper standard of review is the whole record test. Brooks, Com'r of Labor v. Rebarco, Inc., 91 N.C.App. 459, 372 S.E.2d 342 (1988). Our review of a final agency decision is limited to the question of whether the trial court failed to properly apply the review standard set forth in N.C. Gen.Stat. § 150B-51 (1991). In re Kozy, 91 N.C.App. 342, 371 S.E.2d 778 (1988), disc, review denied, 323 N.C. 704, 377 S.E.2d 225 (1989). Thus, the question on appeal is whether the trial court properly applied the whole record test in this case.

The Commission adopted the findings of fact contained in the recommended decision of the ALJ. If, at the superior court level, the party appealing to this Court did not object to the findings of fact adopted by the Commission, those findings are binding on the superior court and binding for purposes of our review. Walker v. N.C. Dept. of Human Resources, 100 N.C.App. 498, 397 S.E.2d 350 (1990), cert. denied, 328 N.C. 98, 402 S.E.2d 430 (1991). The respondent did not note any objection or exception to those findings at the superior court level. Therefore, the findings of fact, as found by the ALJ and adopted by the Commission, were binding on the trial court and constitute the whole record. Id. Thus, the trial court had to determine whether those findings reflected substantial evidence to support the Commission's conclusion that respondent had just cause to terminate petitioner's employment.

A permanent employee, subject to the State Personnel Act, can only be discharged for just cause. N.C. Gen.Stat. § 126-35(a) (1991). The statute does not define "just cause" but the words are to be given their ordinary meaning. Reed v. Byrd, 41 N.C.App. 625, 255 S.E.2d 606 (1979). Petitioner was dismissed for "personal conduct including insubordination, conduct unbecoming to a state employee, failure to maintain a satisfactory and harmonious relationship with employees, and serious disruption of the normal operations of [his] work unit, affecting both the residents and employees of the unit." We find the facts adopted by the Commission do not reflect substantial evidence to support the Commission's conclusion that "petitioner's behavior constituted personal conduct and in fact was just cause for his dismissal."

Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and is more than a scintilla or a permissible inference. Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977). (Citations omitted). The findings indicate that petitioner was not insubordinate. He *6 did not refuse to bathe his patients and in fact did bathe his patients on the day in question. Furthermore, there was no indication the incident caused a serious disruption of the normal operations of his work unit which affected both the residents and employees of the unit. The findings reflect petitioner was not abusive. He did nothing to harm the residents. His questioning the change in procedure did not rise to the level of insubordination. Further, every other staff member also questioned the change. Although petitioner's anger did not fit the circumstance and he briefly argued with the charge nurse, he subsequently apologized for upsetting her. The argument between petitioner and the charge nurse lasted about 5 minutes and the entire incident only lasted for approximately one hour. Based on the findings in the record before us, we conclude that the trial court properly concluded the findings did not adequately support the Commission's conclusion that respondent had just cause to dismiss petitioner.

We have carefully reviewed respondent's other two assignments of error and find them to be without merit.

Affirmed.

PARKER and WYNN, JJ., concur.