NO. COA01-1386
NORTH CAROLINA COURT OF APPEALS
Filed: 15 October 2002
JOEL T. LEWIS,
Petitioner
v.
N.C. DEPARTMENT OF CORRECTION,
Respondent
Appeal by respondent from order entered 10 August 2001 by
Judge A. Moses Massey in Stokes County Superior Court.
Heard in
the Court of Appeals 21 August 2002.
Anderson D. Cromer, PC, by Anderson D. Cromer, for petitioner.
Attorney General Roy Cooper, by Assistant Attorney General
Neil Dalton, for respondent.
BRYANT, Judge.
On 7 September 1999, petitioner Joel T. Lewis initiated a
petition for a contested case hearing pursuant to N.C.G.S. § 150B23(a), appealing the 25 May 1999 decision of respondent N.C.
Department of Correction (DOC) to demote and transfer Lewis from
the position of correctional sergeant at Forsyth Correctional
Center to the position of correctional officer with a ten percent
reduction in pay. Lewis's demotion was for just cause, premised on
several "unprofessional comments of a sexual nature" that he made
to two female correctional officers with whom he was employed. The
unprofessional comments included offering money to correctional
officer Pleasants to go with him to the beach, telling officer
Pleasants that she was being stingy with her "coochie," and asking
officer Pleasants and fellow correctional officer Lattimore what
-2color panties they were wearing.
The contested case came for hearing before Administrative Law
Judge (ALJ) Robert Roosevelt Reilly, Jr., on 25 April 2000.
On 31
May 2000, Judge Reilly issued a recommended decision in favor of
Lewis.
The State Personnel Commission (SPC) declined to adopt the
recommended decision as written and instead adopted an amended
decision and order dated 31 August 2000 in favor of DOC.
From the
decision and order of the SPC, Lewis petitioned for judicial
review.
This matter came for judicial review at the 3 January 2001
term of Stokes County Superior Court with the Honorable A. Moses
Massey presiding.
By order filed 10 August 2001, the superior
court reversed the decision and order of the SPC to demote and
transfer Lewis.
DOC appeals.
Standard of review
At the trial court level, the court must first determine de
novo whether the SPC heard new evidence after receiving the ALJ's
recommended decision; and if the SPC did not adopt the ALJ's
recommended decision, whether the SPC stated specific reasons
explaining its new findings.
See N.C.G.S. § 150B-51(a) (2001).
After the initial determination is made, the court must then
determine de novo whether an error of law occurred. See Associated
Mechanical Contractors, Inc. v. Payne, 342 N.C. 825, 831, 467
S.E.2d 398, 401 (1996).
If the allegation is that the findings of
fact and conclusions of law are unsupported by competent evidence
or are arbitrary and capricious, then the court must utilize the
-3whole record test.
See Amanini v. N.C. Dept. of Human Resources,
114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994).
When this Court reviews appeals from superior court either
affirming or reversing the decision of an administrative agency,
our scope of review is twofold, and is limited to determine: (1)
whether the superior court applied the appropriate standard of
review and, if so, (2) whether the superior court properly applied
this standard.
In re Appeal by McCrary, 112 N.C. App. 161, 166,
435 S.E.2d 359, 363 (1993).
However, this Court's obligation to
review a superior court order for errors of law can be accomplished
by addressing the dispositive issue(s) before the agency and the
superior court without examining the scope of review utilized by
the superior court and remanding the case if the standard of review
utilized by the superior court cannot be ascertained.
Capital
Outdoor, Inc. v. Guilford County Board of Adjustment, ___ N.C. App.
___, ___, 567 S.E.2d 440, 441 (2002).
Upon review of the superior court's order, it appears that the
superior court utilized the appropriate standard of review as to
each issue presented.
This Court must now determine whether it
properly applied the standard of review.
Dispositive issue
DOC presents several issues on appeal, however, we find the
dispositive
issue
to
be
whether
the
superior
court
erred
in
determining that Lewis's conduct had to rise to the level of sexual
harassment to justify his demotion and transfer. For the following
reasons, we affirm the superior court's conclusion on this issue.
-4N.C.G.S. § 126-35 (2001), states that "[n]o career State
employee subject to the State Personnel Act shall be discharged,
suspended, or demoted for disciplinary reasons, except for just
cause." N.C. Admin. Code tit. 25, r.1J0604(b) (June 2002), defines
just
cause
as
discipline
or
dismissal
based
on
either
unsatisfactory job performance or unacceptable personal conduct.
N.C. Admin. Code tit. 25, r.1J0614(i) (June 2002), enumerates
several examples of unacceptable personal conduct including: 1)
"conduct for which no reasonable person should expect to receive a
prior warning; or" 2) "job-related conduct which constitutes a
violation of state or federal law; or" 3) "the willful violation of
known or written work rules; or" 4) "conduct unbecoming a state
employee that is detrimental to state service; or" 5) "the abuse of
client(s), patient(s), student(s), or person(s) over whom the
employee has charge or to whom the employee has a responsibility.
. . ."
Effective
1
harassment policy.
September
1992,
DOC
implemented
The SPC concluded,
Sexual harassment usually involves an employee
being personally subjected to one or more of
the following behaviors:
(a) Unwelcome sexual advances;
(b) Acts of gender-based animosity
(hostile conduct based on the
victim's gender); or
(c) Sexually charged workplace
behavior
(conduct
that
is
offensive on the basis of
gender to persons whether or
not they are the targets of the
conduct).
[]
Sexual harassment is unlawful sex
discrimination
under
one
or
two
legal
a
sexual
-5theories:
"quid
pro
quo"
or
"hostile
environment."
All three forms of behavior
referenced
may
constitute
a
hostile
environment, but a claim of quid pro quo
harassment necessarily involves unwelcome
sexual advances. Sexual harassment claims are
usually
analyzed
as
disparate
treatment
claims.
[]
The essence of a quid pro quo claim
is that an individual has been forced to
choose
between
suffering
an
employment
detriment and submitting to sexual demands.
. . .
[]
The essence of a hostile environment
claim is that an individual has been required
to endure a work environment that, while not
necessarily causing any direct economic harm,
or even significant psychological or emotional
harm,
substantially
affects
a
term
or
condition of employment. . . .
Lewis
was
a
career
State
employee
prior
to
his
demotion/transfer and was subject to the provisions of N.C.G.S. §
126, et seq. (State Personnel Act).
By letter dated 25 May 1999,
Lewis was notified that an investigation of the incidents at issue,
revealed that he made unprofessional comments of a sexual nature to
both officers Pleasants and Lattimore.
In addition, the letter
stated that a recommendation for his demotion for unacceptable
personal conduct had been approved effective 1 June 1999.
After an unsuccessful internal appeal, Lewis appealed to the
Office of Administrative Hearings for a contested case hearing. By
decision dated 31 August 2000, the presiding ALJ specified the
issue as, "Did the respondent have just cause to demote petitioner
because of sexual harassment?"
this articulation of the issue.
decision
and
order,
"Sexual
The SPC did not reject nor amend
Rather the SPC stated in its
harassment
is
unlawful
sex
-6discrimination under one of two legal theories: 'quid pro quo' or
'hostile environment'. . . . [P]etitioner's behavior must be
analyzed to determine whether his behavior created a hostile
working environment that substantially affected a term or condition
of Ms. Pleasant's (sic) employment."
The SPC went further to
conclude, "Regardless of whether Petitioner's conduct rose to the
level of sexual harassment as defined above, Petitioner's conduct
did constitute personal misconduct 'for which no reasonable person
should expect to receive a prior warning,' thereby subjecting
Petitioner to disciplinary action as provided for in 25 NCAC
1J.0162 and .0613 and in DOC's Disciplinary Policy and Procedures,
Section 6, p.38, resulting in his demotion and transfer."
Based upon our reading of the case, the issue before the ALJ
was whether just cause existed to demote Lewis because of sexual
harassment.
The SPC did not articulate a different issue for
consideration. The SPC concluded there were no allegations of quid
pro quo sexual harassment in this case.
In addition, the SPC found
that "Neither Ms. Pleasants nor Ms. Lattimore stated that the
Petitioner's statements had or may have had [] direct employment
consequences resulting from either the acceptance or rejection of
the statements or that the statements created an intimidating,
hostile or offensive environment or that the statements interfered
with their performance." Notwithstanding, the SPC ordered that the
recommended decision of the ALJ be rejected and respondent's
disciplinary action for unacceptable personal conduct be upheld.
In light of the above noted findings and conclusions, it
-7appears
that
unacceptable
personal
conduct
based
on
sexual
harassment did not occur as sexual harassment has been previously
defined.
Although several grounds may exist for establishing
unacceptable personal conduct, the ground specified as the basis
for Lewis's demotion and transfer was sexual harassment.
The
superior court did not err in reversing the decision and order of
the SPC.
Therefore, this assignment of error is overruled and we
affirm the order of the superior court.
AFFIRMED.
Judge McGEE concurs.
Judge McCULLOUGH dissents with a separate opinion.
==========================
McCULLOUGH, Judge, dissenting.
The majority affirms a ruling of the superior court reversing
an order of the State Personnel Commission (SPC) which demoted,
transferred and decreased the respondent’s salary due to comments
of a crude sexual nature made by respondent to female correctional
officers with whom he worked.
From this ruling, I respectfully
dissent.
The record shows that respondent offered a female correctional
officer money to go to the beach with him, stated that she was
being stingy with her “coochie,” that she would have to sell a lot
of “coochie” to make her car payment, and asked this officer and
another officer what color underpants they were wearing.
Both the Administrative Law Judge (ALJ) who originally heard
this matter, and the superior court judge who heard the Petition
-8For Judicial Review, concluded that, to be actionable, (1) sexual
comments had to rise to the level of sexual harassment as defined
by the Department of Correction (DOC); and (2) such comments that
do not rise to that level cannot qualify as “unacceptable personal
behavior,” as that term is defined in the Office of State Personnel
Policy
Manual,
codified
r.1J.0614(i)(1) (June 2002).
at
N.C.
Admin.
Code
tit.
25,
In affirming, the majority concurs
with the shared viewpoint expressed by the ALJ and the superior
court.
The majority opinion sets forth the DOC sexual harassment
policy in detail.
Upon reading the DOC policy statement, it is
apparent that not all crude sexual remarks meet the test set forth
therein.
I would reverse the order of the superior court which reversed
respondent’s discipline, as I believe that the SPC gave an adequate
explanation of why it did not adopt the reasoning and conclusions
of the ALJ.
A point-by-point refutation of the ALJ’s findings and
conclusions is not required.
Webb v. N.C. Dept. of Envir., Health
and Nat. Resources, 102 N.C. App. 767, 404 S.E.2d 29 (1991).
I
believe the SPC addressed the case adequately and complied with
N.C. Gen. Stat. § 150B-51 (2001) when it included Conclusion of Law
No. 8 in its order.
That conclusion stated:
8.
Regardless of whether Petitioner’s
conduct rose to the level of sexual harassment
as defined above, Petitioner’s conduct did
constitute personal misconduct, “for which no
reasonable person should expect to receive a
prior warning,” thereby subjecting Petitioner
to disciplinary action as provided for in 25
NCAC
1J.0612
and
.0613
and
in
DOC’s
Disciplinary Policy and Procedures, Section 6,
p. 38, resulting in his demotion and transfer.
-9Respondent was well aware that comments of a sexual nature
could lead to some form of discipline, whether or not they rose to
the level of sexual harassment.
The record indicates that, on 19
November 1996, respondent signed a Human Relations in the Workplace
memorandum to that effect.
His conduct was therefore a willful
violation of a work rule, which is also unacceptable personal
conduct for which he could be disciplined.
tit.
25,
r.1J.0614(i)(4);
and
North
See N.C. Admin. Code
Carolina
Department
of
Correction v. McNeely, 135 N.C. App. 587, 521 S.E.2d 730 (1999).
The majority seems to hold that, although the SPC inserted
Conclusion of Law No. 8 into its Order as an alternative basis for
discipline, such was of no import.
The majority then accepts the
superior court’s determination that the sole issue before that
court (and, by implication, this Court as well) was whether the
complained-of comments constituted sexual harassment as defined by
the DOC policy statement.
With this assessment, I disagree.
In
so doing, I believe the superior court made an error of law, which
we review de novo.
Walker v. N.C. Dept. of Human Resources, 100
N.C. App. 498, 397 S.E.2d 350 (1990), disc. review denied, 328 N.C.
98, 402 S.E.2d 430 (1991).
While crude sexual comments may not always rise to the level
of sexual harassment as defined in the DOC policy statement, they
are nevertheless capable of subjecting an employee to discipline.
The SPC never attempted to rely solely on sexual harassment as the
only ground for discipline, and this Court should not overlook the
SPC’s attempt to base the discipline imposed on its Conclusion of
-10Law No. 8 set forth above.
In summary, I would reverse the order
of the superior court and uphold the SPC and the discipline it
imposed.
