North Carolina a & T University v. Kimber

270 S.E.2d 492 (1980)

NORTH CAROLINA A & T UNIVERSITY v. Odessa G. KIMBER.

No. 8010SC225.

Court of Appeals of North Carolina.

October 7, 1980.

*493 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Edwin M. Speas Jr., Raleigh, for North Carolina A & T University, petitioner-appellee.

Loflin, Loflin & Acker by Thomas F. Loflin III, Durham, for respondent-appellant.

HILL, Judge.

The superior court's first ground for reversing the State Personnel Commission was that the Commission had acted in excess of its statutory authority. The authority of the court is clear:

The 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: * * * * * * *494 (2) In excess of the statutory authority or jurisdiction of the agency;

G.S. 150A-51(2).

The authority of the Full Commission has been addressed by this Court in Brooks v. Best, 45 N.C.App. 540, 263 S.E.2d 362, disc. rev. denied 300 N.C. 371, 267 S.E.2d 672 (1980). This Court concluded in Brooks that "[t]he Full Commission, pursuant to G.S. 126-37, may reinstate a state employee to the position from which he has been removed. The implication in that section, however, is that the Commission can only act to correct an abuse or where there is a wrongful denial." Brooks at p. 542, 263 S.E.2d at p. 363.

Was Ms. Kimber wrongfully terminated? We find that she was not and that the Commission exceeded its authority when it reinstated Ms. Kimber. The reviewing court was correct in holding that the Commission's determination that the University acted unfairly in dismissing Ms. Kimber is not supported by substantial evidence. See G.S. 150A-51(5).

G.S. 150A-51(5) provides that the court may modify or reverse the Commission's decision if it is "unsupported by substantial evidence ... in view of the entire record ...." The standard of judicial review in subdivision (5) is the whole record test. The reviewing court is not at liberty to replace the Commission's judgment as between two reasonably conflicting views. Yet, the court must take into account whatever in the record fairly detracts from the weight of the Commission's evidence. Under subdivision (5), the reviewing court may not consider the evidence which justifies the Commission's result, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn. Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538 (1977).

The reviewing court found that the evidence presented to the Commission showed Ms. Kimber was dismissed for three reasons. Ms. Kimber had been absent without approved leave, had an habitual pattern of failing to report for duty at the assigned time and had falsified her time sheets in order to inaccurately reflect her arrival time. Such facts, which were found by the Commission and for which there is substantial evidence in the record, constituted sufficient grounds for Ms. Kimber's dismissal.

It is at this point that the Commission exceeded its authority in breach of G.S. 150A-51(2). The Commission found no facts to indicate there had been a "wrongful denial" of employment. Yet, in this case the hearing officer and the Commission sought to create an intermediate remedy by reinstating Ms. Kimber to a comparable position and ordering that her falsification of time records be made part of her permanent record. We find no authority for the Commission's action. An examination of the whole record shows no substantial evidence for a finding that Ms. Kimber had been wrongfully denied employment

In fact, the record is replete with evidence of fair and reasonable treatment of the appellant by her supervisors. This evidence is ignored by the hearing officer. The record reveals the supervisor had been working with Ms. Kimber for several years to remedy her failure to report to work on time. She was warned on at least five occasions, either in writing or orally, that her habitual absences and failure to obtain such approval for leave could lead to her dismissal. Ms. Kimber failed to heed these warnings, and it was not until it became clear that she would not change her behavior that she was terminated. In addition, Ms. Kimber was specifically warned immediately prior to the falsification of her time record to record the time she actually came to work and not the time she was scheduled to come to work. The very next day she falsified her records. The time record indicated substantial tardiness on a daily basis.

The Commission's action reinstating Ms. Kimber was in excess of its statutory authority. See G.S. 150A-51, G.S. 126-35, G.S. 126-37. The Commission has no policy under which it can excuse improper conduct by an employee and no such policy has been approved by the Governor. See Reed v. *495 Byrd, 41 N.C.App. 625, 629, 255 S.E.2d 606 (1979).

Ms. Kimber next contends the findings of fact made by the Personnel Commission that she was unfairly treated are supported by substantial evidence so that the Commission's findings are not arbitrary and capricious.

G.S. 150A-51(6) provides that the reviewing court may modify the decision of the Personnel Commission if the substantial rights of the petitioner have been prejudiced because the Commission's findings, inferences, conclusions or decisions are arbitrary or capricious.

The hearing officer in recommending that relief should be granted to Ms. Kimber, did so, at least in part, because the University failed to prove that her absences hindered the operation of the University's work and because the University failed to prove that it was unaware of her whereabouts. This conclusion was not modified by the Full Commission. The reviewing court held this action by the Commission to be arbitrary and capricious in violation of G.S. 150A-51(6). In the words of the reviewing court:

As an apparent part of its determination of unreasonableness and unfairness to Ms. Kimber, the Commission cited the failure of the University to prove that her `absences hindered the operation' of the University's work and the failure of the University to prove that they were `unaware of (Ms. Kimber's) whereabouts.' In effect, the Commission has said that it is unfair and unreasonable to dismiss an employee unless it can be proved that work was not completed or performed because of an absence, or unless it can be proved that no one knows of the whereabouts of the employee. Such considerations had no logical or rational relation to the issues before the Commission and to the extent the Commission weighed these considerations in its decision it acted arbitrarily and capriciously within the meaning of G.S. 150A-51(6). (Emphasis added.)

Ms. Kimber does not deny that such propositions are arbitrary and capricious. Instead, she argues that these factors "were offered only to buttress the conclusion" that her supervisors acted unreasonably and unfairly in denying her "flex time." These factors may not have been of primary importance in the Commission's determination of unreasonable and unfair actions by the University's supervisors. Nevertheless, such factors clearly infected and played a part in the Commission's decision and the decision-making process. The infection of an agency decision by consideration of such arbitrary and capricious matter is clearly violative of G.S. 150A-51(6).

Finally, Ms. Kimber argues that the reviewing court erred in finding no evidence in the record to support a finding of fact or conclusion by the State Personnel Commission that the work schedule of other employees at the University was varied to suit those employees' personal needs.

Without question, there is evidence that some employees were allowed "flex time." However, it is unquestioned that Ms. Kimber was assigned to a particular supervisor and her hours were set to conform to his. Likewise, there is evidence that non-administrative employees were granted "flex time." However, there is also evidence that the Physical Plant where Ms. Kimber worked was operating on a 24-hour basis, and the persons granted "flex time" were given such for the benefit of the administration. We do not believe the legislature intended the Personnel Commission to sit as a "Super Employment Committee" with authority to substitute its judgment for every person having supervisory authority over any employee.

We conclude the reviewing court was correct in its decision to reverse the action taken by the Personnel Commission.

The decision of the reviewing court is

Affirmed.

HEDRICK and WHICHARD, JJ., concur.