An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 January 2004
JERRELLE B. JONES,
No. 01 CVS 13907
NORTH CAROLINA DEPARTMENT OF
HEALTH AND HUMAN SERVICES/
Appeal by respondent from order entered 31 December 2002 by
Judge Evelyn Hill in Wake County Superior Court.
Heard in the
Court of Appeals 4 December 2003.
Shanahan Law Group, by Fenita M. Shepard, for petitionerappellee.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas M. Woodward, for respondent-appellant.
North Carolina Department of Health and Human Services/O’Berry
Center (“respondent”) appeals from an order reversing respondent’s
termination of Jerrelle B. Jones’ (“petitioner”) employment.
Petitioner was employed as a group home director at the
Petitioner was responsible for supervising O’Berry
-2Center employees who cared for approximately twelve patients.
On 3 May 2000, Deborah Exum (“Exum”), petitioner’s immediate
supervisor, and Brenda Davis (“Davis”), Coordinator of Residential
Services, met with petitioner to discuss her performance. Exum and
Davis discussed petitioner’s failure to timely fill vacant employee
positions under her supervision and to follow O’Berry Center Policy
#94-5 that addresses authorizing, accounting for, and computing an
employee’s work and leave time. Exum testified that petitioner had
failed to follow the policy that resulted in excessive amounts of
overtime being paid to petitioner’s subordinates.
directed to refer to O’Berry Center Policy #94-5 should she have
any questions concerning how to properly handle work or leave time
issues in the future.
On 18 May 2000, petitioner was given a
written warning regarding the issues discussed in the 3 May 2000
This written warning expressly addressed petitioner’s
failure to comply with O’Berry Center Policy #94-5.
On 15 May 2000, petitioner met with her staff to discuss
administrative matters and client care issues.
(“Decker”), Jacqueline Bell (“Bell”), Nadine Billups (“Billups”),
testified that the 15 May meeting began at 2:30 p.m. and ended at
All testified that petitioner directed them to sign out
at their regular quitting time of 3:30 p.m. rather than at 4:45
p.m., the actual time they left work.
Decker, Dawson, and Billups
expressed concern that petitioner’s directive would result in
falsified time records.
-3McCullough testified that petitioner later informed her that
she should always correctly report her time.
McCullough did not
believe that this statement was made in reference to the 15 May
meeting or was a retraction of petitioner’s prior directive.
On 7 June 2000, Exum learned of petitioner’s actions.
compensatory time on their time sheets.
Exum notified petitioner
that she was placed on administrative leave with pay pending the
outcome of the investigation.
As part of the investigation, Exum interviewed petitioner and
staff who attended the 15 May meeting.
Petitioner denied the
allegations and confirmed this denial in a letter written to Exum.
Exum testified that petitioner’s written denial was contrary to the
statements she received from all other witnesses.
On 12 June 2000, Exum informed petitioner by letter that a
scheduled for 15 June 2000. This conference was rescheduled for 11
September 2000, due to petitioner being out on approved medical
Davis notified petitioner of the rescheduled conference by
letter on 8 September 2000.
On 11 September 2000, the pre-dismissal conference was held.
Assistant Director of the O’Berry Center, attended the conference.
-4Exum and Farrell testified that petitioner again stated that she
had not directed her staff to incorrectly report their time.
and Farrell also testified that when petitioner was asked about the
contradictory statements made by her staff she replied that they
were lying and their statements were untrue.
testified and admitted to instructing her staff to incorrectly
report their time, to put their names on a separate sheet, and that
petitioner would ensure the employees received administrative leave
for their overtime hours.
On 14 September 2000, petitioner was dismissed by letter for
incorrectly report their time in direct violation of O’Berry Center
Petitioner filed a petition for a contested case
hearing with the North Carolina Office of Administrative Hearings
recommendation that petitioner’s dismissal be upheld.
Carolina State Personnel Commission (“SPC”) adopted and affirmed
superior court reversed the SPC’s order, finding that petitioner
had been dismissed without due process and that respondent’s
decision to dismiss petitioner was not supported by the whole
The issues are whether the trial court erred in finding:
petitioner was denied due process prior to her dismissal and (2)
insufficient evidence in the whole record to support respondent’s
-5decision to dismiss petitioner for unacceptable personal conduct.
Standard of Review
The North Carolina Administrative Procedure Act governs trial
and appellate court review of administrative agency decisions.
Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 673,
443 S.E.2d 114, 117 (1994).
Although N.C. Gen. Stat. § 150B-51(b)
lists the grounds upon which a court may reverse or modify an
administrative agency decision, the proper standard of review to be
employed by the court depends upon the nature of the alleged error.
Id. at 674, 443 S.E.2d at 118.
decision was based on an error of law, then de novo review is
Id. (quoting In re Appeal by McCrary, 112 N.C. App. 161,
165, 435 S.E.2d 359, 363 (1993)).
If a petitioner asserts that the
administrative agency decision was not supported by the evidence,
or was arbitrary and capricious, then the trial court employs the
“whole record” test.
Amanini, 114 N.C. App. at 674, 443 S.E.2d at
The standard of review for an appellate court upon an appeal
from an order of the superior court affirming or reversing an
administrative agency decision is the same standard of review as
that employed by the superior court.
See In re Appeal of Ramseur,
120 N.C. App. 521, 463 S.E.2d 254 (1995).
We must determine (1)
whether the trial court applied the appropriate standard of review
and, if so (2) whether the court did so properly.
N.C. at 675, 443 S.E.2d at 118-119.
-6Respondent contends the trial court erred in finding that
Petitioner contends that she was denied due process by (1) lack of
notice of the pre-dismissal conference held on 11 September 2000,
(2) Exum participating in the pre-dismissal conference, and (3) the
dismissal letter she received.
This Court has held that:
Under federal due process an employee’s
property interest in continued employment is
sufficiently protected by ‘a pretermination
post-termination administrative procedures . .
. .’ Further, the federal due process concern
for fundamental fairness is satisfied if the
employee receives ‘oral or written notice of
the charges against him, an explanation of the
employer’s evidence, and an opportunity to
present his side of the story.’ To interpret
the minimal protection of fundamental fairness
‘requiring more than this . . . would intrude
to an unwarranted extent on the government’s
interest in quickly removing an unsatisfactory
Owen v. UNC-G Physical Plant, 121 N.C. App. 682, 686, 468 S.E.2d
813, 816 (1996) (quoting Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 547-548, 84 L. Ed. 2d 494, 507 (1985) (internal citations
The 12 June 2000, letter gave petitioner legally sufficient
notice of the pre-dismissal conference.
The letter states:
conference, (3) the purpose of the conference, (4) the allegations
concerning petitioner, (5) the date the incident giving rise to the
-7allegations occurred, and (6) that petitioner would be provided an
opportunity to offer any additional information regarding the
The initial pre-dismissal conference was rescheduled
for 11 September 2000, due to petitioner being on approved medical
On 8 September 2000, Davis sent petitioner another letter
advising her that the pre-dismissal conference had been rescheduled
and that petitioner would be given the opportunity to present any
additional information pertaining to the allegations set out in the
Petitioner had been interviewed previously as
part of the initial investigation into the allegations and had
Respondent also contends that the trial court erred in finding
that the pre-dismissal conference itself was insufficient because
one of the participants of the pre-dismissal conference, Exum, had
initially investigated the allegations.
This Court, addressing a similar issue, held that no per se
due process violation occurs when an administrative tribunal acts
as both an investigator and an adjudicator in the same matter.
v. Department of Health and Human Servs., 153 N.C. App. 595, 605,
570 S.E.2d 919, 926 (2002) (quoting Leiphart v. North Carolina
School of the Arts, 80 N.C. App. 339, 354, 342 S.E.2d 914, 924
We further held that in order for there to be a violation
of due process, petitioner must show that the employer or its
representative held a personal bias against him.
Kea, 153 N.C.
-8App. at 605, 570 S.E.2d at 925.
“Mere familiarity with the facts
of a case gained by an agency or individual in the performance of
its statutory role does not, however, disqualify, a decision
No evidence shows that Exum was biased against petitioner.
The facts merely show that Exum was familiar with the facts of the
case as she was the initial investigator. Exum informed petitioner
that she would have an opportunity to offer additional information
considered before a decision was made.
Further, Farrell, Exum’s
supervisor, participated in the pre-dismissal conference and had
authority to disregard or overrule Exum’s conclusions.
Respondent contends the trial court erred in finding that the
notice of dismissal provided to petitioner was legally insufficient
to provide petitioner due process and violated the provisions of
N.C. Gen. Stat. § 126-35.
N.C. Gen. Stat. § 126-35 (2003) states:
(a) No career State employee subject to the
State Personnel Act shall be discharged,
reasons, except for just cause. In cases of
such disciplinary action, the employee shall,
before the action is taken, be furnished with
a statement in writing setting forth in
numerical order the specific acts or omissions
that are the reasons for the disciplinary
action and the employee’s appeal rights.
The purpose of N.C. Gen. Stat. § 126-35 is to provide the employee
with the reasons for the personnel action so that the employee has
sufficient information to prosecute an appeal.
App. at 351, 342 S.E.2d at 922.
Leiphart, 80 N.C.
-9Here, the dismissal letter of 14 September 2000, states:
the date of the occurrence, (2) the acts that took place, (3) the
reason for the dismissal, and (4) petitioner’s right to appeal with
a copy of the appeal procedures attached.
This letter clearly
fulfilled the purpose of N.C. Gen. Stat. § 126-35.
Petitioner was afforded sufficient due process by the letter
notifying her of the pre-dismissal conference, the holding of the
petitioner’s employment which informed her of her right to appeal.
The trial court erred in finding that petitioner was denied due
Unacceptable Personal Conduct
Respondent contends that the trial court erred in finding
insufficient evidence in the whole record to support petitioner’s
dismissal for unacceptable personal conduct.
Petitioner argued to the trial court that the record did not
contain substantial evidence to support the decision to terminate
petitioner for unacceptable personal conduct.
A claim that an
agency’s decision is not supported by substantial evidence requires
a reviewing court to apply the “whole record” test.
North Carolina Dep’t of Health and Human Servs., 155 N.C. App. 268,
272, 573 S.E.2d 628, 631 (2002), rev’d on other grounds, 357 N.C.
241, 580 S.E.2d 692 (2003).
The whole record test does not allow
a reviewing court “to replace the [agency’s] judgment as between
two reasonable conflicting views, even though the court could
justifiably have reached a different result had the matter been
-10before it de novo.”
Id. at 279, 573 S.E.2d at 635 (quoting
Thompson v. Wake County Board of Education, 292 N.C. 406, 410, 233
S.E.2d 538, 541 (1977)).
“If substantial evidence supports an
agency’s decision after the entire record has been reviewed, the
decision must be upheld.”
Pittman, 155 N.C. App. at 272, 573
S.E.2d at 631 (quoting Blalock v. N.C. Dep't of Health and Human
Servs., 143 N.C. App. 470, 473-474, 546 S.E.2d 177, 181 (2001)).
Petitioner also argued that her actions did not amount to
unacceptable personal conduct. As a determination of just cause to
dismiss an employee raises an issue of law, the reviewing court
must apply a de novo standard of review.
See Steeves v. Scotland
Cty. Bd. of Health, 152 N.C. App. 400, 406, 567 S.E.2d 817, 821
We must first address whether substantial evidence exists to
support the SPC’s findings.
The ALJ’s Conclusion of Law No. 6,
adopted by the SPC, states:
The Respondent proved by a preponderance of
the evidence that:
(1) the Petitioner
instructed her staff on May 15, 2000 to
falsely record their time, (2) such action was
a violation of the O’Berry Center’s Policy
#94-5, (3) approximately two weeks prior to
this incident, Ms. Exum counseled Petitioner
about violations of O’Berry Policy #94-5 and
directed Petitioner to review the policy
should she have any questions, (4) the
Petitioner knew or should have known that her
actions were in violation of O’Berry Policy
#94-5, and (5) Petitioner continued to deny
the allegations during the investigation, the
pre-dismissal conference, and Steps 2 and 3 of
the internal grievance procedure, despite
overwhelming evidence to the contrary.
Petitioner consistently maintained that she never told her staff to
-11falsify their work times during the 15 May meeting. Five witnesses
who attended that meeting testified that petitioner did instruct
them to record their scheduled quitting time of 3:30 p.m. rather
subsequently changed her testimony at the Level 3 conference and
admitted to instructing her staff to record the incorrect time but
that she later instructed them to go back and correct their time.
All five witnesses further testified that petitioner never recanted
her directive or told them to go back and change their time
Less than two weeks prior to the 15 May meeting, Exum and
Davis met with petitioner regarding excessive overtime being taken
by petitioner’s staff. Petitioner was directed to refer to O’Berry
Center Policy #94-5.
This meeting was followed up with a letter to
petitioner again referring to O’Berry Center Policy #94-5.
May 2000, petitioner instructed her staff to falsify their time
cards so that she could avoid another disciplinary action similar
to the one petitioner received two weeks earlier. This evidence is
sufficient to support the SPC’s findings.
We next must consider whether the substantial evidence in the
record constitutes grounds to dismiss petitioner for unacceptable
unsatisfactory job performance or unacceptable personal conduct.
Administrative Code defines unacceptable personal conduct as:
-12conduct for which no reasonable person should expect to receive
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.
25 NCAC 1J.0614(i) (2002).
This Court delineated the difference between unacceptable job
performance and unacceptable personal conduct.
App. at 679, 443 S.E.2d at 120-121.
Amanini, 114 N.C.
Unacceptable job performance
includes things such as careless errors, poor quality work, and
Id. (citing State Personnel Manual, Sec. 9, at 8.1-
Unacceptable personal conduct includes insubordination,
reporting to work under the influence of drugs or alcohol, and
stealing or misusing State property.
Amanini, 114 N.C. App. at
warning before an employee is terminated.
Leiphart, 80 N.C. App.
at 351, 342 S.E.2d at 923.
Substantial evidence shows that petitioner instructed her
staff to falsify their time in order for her to avoid further
Petitioner had been informed of O’Berry
Center Policy #94-5 less than two weeks before this incident
She was fully aware that her actions were a direct
violation of respondent’s work rules.
Petitioner argues that
falsification of state records is a mere job performance issue.
Falsification of state records, however, is a far more serious
matter that involves personal misconduct, not mere job performance.
See Leeks v. Cumberland Cty. Mental Health Dev’l Disab. & Sub.
supervisor who instructs employees under her supervision to falsify
time records, after having received a written warning for violation
of this policy less than two weeks earlier, commits a far more
egregious offense than a mere job performance issue. Falsification
of state records is not only a violation of O’Berry Center Policy
#94-5 but is also a violation of state law.
After careful review of the whole record, we hold sufficient
evidence supports respondent’s decision to terminate petitioner’s
employment based upon unacceptable personal conduct.
the trial court’s order reinstating petitioner to her former
The trial court erred in finding that petitioner was denied
due process prior to her termination and in finding that there was
insufficient evidence in the whole record to support respondent’s
termination of petitioner.
The decision of the trial court is
instructions to enter an order affirming the decision of the State
Reversed and Remanded with instructions.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).