Bulloch v N.C. Dep't of Crime Control & Pub. Safety

Annotate this Case

Download PDF

NO. COA12-115 NORTH CAROLINA COURT OF APPEALS Filed: 2 October 2012 WADE BRYAN BULLOCH, Petitioner, v. Wake County No. 10 CVS 13807 NORTH CAROLINA DEPARTMENT OF CRIME CONTROL and PUBLIC SAFETY; NORTH CAROLINA HIGHWAY PATROL, Respondent. Appeal by Respondent from decision and order entered 23 August 2011 by Judge Howard E. Manning, Jr., in Wake County Superior Court. Heard in the Court of Appeals 15 August 2012. The McGuinness Petitioner. Law Firm, by J. Michael McGuinness, for Attorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for Respondent. Richard C. Hendrix for Amicus Curiae North Carolina Troopers Association and Richard E. Mulvaney for Amicus Curiae National Troopers Coalition. STEPHENS, Judge. On 6 May 2005, Wade Bryan Bulloch, who at the time was a Line Sergeant with the North Carolina Highway Patrol (the NCHP ), a division of the North Carolina Department of Crime Control and Public Safety (the Department), was dismissed from -2his employment on grounds of unacceptable personal conduct. On 26 July 2005, Bulloch challenged his dismissal by filing with the Office of Administrative Hearings (the OAH ) a petition for a contested case hearing against the Department. Bulloch s case was heard in the OAH on 29 and 30 July 2009 and 4 August 20091 before Administrative Law Judge Beecher R. Gray ( ALJ Gray ). The evidence before ALJ Gray tended to show the following: Bulloch served with the NCHP from 1989 until his dismissal in 2005. During his tenure with the NCHP, Bulloch earned an exemplary service record and always ha[d] been in good standing and [] never [] had any adverse action or punishment. Moreover, appraisals of Bulloch s job performance, which were admitted into evidence, demonstrate[d] substantial and consistent very high conduct ratings. In 1997, Bulloch was diagnosed 2003, with bipolar disorder. with depression, and in In early December 2004, Bulloch s physician took Bulloch off his medication for depression and thereafter prescribed lithium for Bulloch s bipolar condition. In the evening of 14 December recommended dosage of lithium. 1 2004, Bulloch took his first Later that night, when off duty, There is no indication in the record on appeal regarding the cause for the nearly four-year period between the filing of Bulloch s petition with the OAH and Bulloch s hearing. -3Bulloch consumed some alcohol and attended the NCHP Christmas party with his girlfriend. At the party, Bulloch consumed more alcohol before attempting to dance with his girlfriend. When his girlfriend resisted, Bulloch employed a defensive tactic taught by the [NCHP] and moved [his girlfriend s] arm behind her back so as to bring her along with him. His girlfriend began to cry and indicated Bulloch was hurting her. Bulloch then stopped his efforts at dancing, and he and his girlfriend left the party. Upon leaving the party, Bulloch became frustrated and very emotional, and his girlfriend told him that she was leaving him. At home, Bulloch began to break suicidal[,] and took two [] sleeping pills. down, became Bulloch retrieved his service weapon and threatened to kill himself in front of his girlfriend. When Bulloch s girlfriend left the room, Bulloch placed [his service pistol] to his temple but then removed discharged into it bedroom. told her and one round the floor of his When his girlfriend returned to the bedroom, Bulloch he had taken the entire bottle of sleeping pills. Bulloch s girlfriend called 911, and Bulloch was transported to the hospital. Shortly thereafter, Bulloch was relieved of duty for medical reasons. -4After his hospitalization, Bulloch returned to limited duty and was set to undergo a fitness-for-duty medical examination, which had been requested by Dr. Thomas Griggs, the NCHP medical director, and ordered by NCHP Commander Colonel William Fletcher Clay, Jr. Before that examination was performed, however, Colonel Clay terminated Bulloch s employment. Dr. Moira Artigues, an expert psychiatry testified who at conducted the hearing a in the field of forensic forensic that evaluation Bulloch s of behavior Bulloch, during the incident had a medical basis and was caused by [b]ipolar [d]isorder and associated medications. Based on the foregoing evidence, ALJ Gray concluded in a 15 January 2010 order that termination of Bulloch s employment for unacceptable personal conduct (1) was based upon an incomplete investigation and decision-making process ; (2) was violative of [NCHP s] own rules and order of [Colonel Clay] ; (3) was arbitrary and capricious because it failed to consider a known, underlying medical condition ; and (4) is not substantial evidence constituting just cause. supported by Thus, ALJ Gray decided that Bulloch was entitled to reinstatement. Thereafter, in a decision and order dated 13 July 2010, the State Personnel Commission (the SPC ) adopted ALJ Gray s -5findings, conclusions, and decision and ordered that Bulloch be reinstated. On 13 August 2010, the Department sought judicial review of the SPC s decision and order in Wake County Superior Court. On judicial review of an agency s final decision, a trial court may reverse or determines review modify that have such the been a decision substantial prejudiced only rights because if of the the the trial party agency s court seeking findings, inferences, conclusions, or decisions are: (1) In violation of constitutional provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Unsupported by substantial evidence . . . in view of the entire record as submitted; or (6) Arbitrary, capricious, or an abuse of discretion. N.C. Gen. Stat. § 150B-51(b) (2009); see also N.C. Dep t of Env t & Natural Res. v. S.E.2d 888, 894 (2004). Carroll, 358 N.C. 649, 658-59, 599 In this case, after a 1 August 2011 hearing before the Honorable Howard E. Manning, Jr., the trial court reviewed the SPC s decision and order, concluded that the Department s rights were not prejudiced by any of the errors -6listed above, and affirmed the SPC s decision and order. From that order, the Department appeals to this Court. On appeal from a trial court s review of a final agency decision, an appellate court s task is to examine the trial court s order for error of law by (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) determining whether the court did so properly. Holly Ridge Assocs., LLC v. N.C. Dep t of Env t & Natural Res., 361 N.C. 531, 535, 648 S.E.2d 830, 834 (2007). alleged regarding violations of subsections For errors 150B-51(b)(1) through (4), the appellate court engages in de novo review; for errors alleged regarding violations of subsections 150B-51(b)(5) or (6), the whole record test is appropriate. Carroll, 358 N.C. at 659-60, 599 S.E.2d at 895. the trial court exercised the The Department concedes that appropriate scope of review. Thus, our review of the trial court s decision is limited to whether the trial court erroneously applied that scope of review, i.e., whether the court correctly concluded that the Department s rights were not prejudiced by any of the errors listed in section 150B-51(b). The Department s overarching argument on appeal is that the trial court erred by concluding that the SPC properly determined -7that the Department did not have just cause to dismiss Bulloch from employment. The Department contends that the SPC s ultimate conclusion that the Department lacked just cause was itself erroneous and also that many of the SPC s supporting findings of fact and conclusions of law were erroneous such that the just cause conclusion should be reversed. For the following reasons, we are unpersuaded. As recently held by this Court in Warren v. N.C. Dep t of Crime Control & Pub. Saftey, __ N.C. App. __, 726 S.E.2d 920 (2012), determining whether a State agency had just cause to discipline an employee requires three inquiries: (1) whether the employee engaged in the conduct the employer alleges; (2) whether the categories North employee s of Carolina conduct unacceptable falls personal Administrative within conduct Code; and one provided (3) of the by the whether that unacceptable personal conduct amounted to just cause for the disciplinary action taken. Id. at __, 726 S.E.2d at 925. As Bulloch admitted to his actions in this case, only the latter two inquiries are relevant to this appeal. Regarding the second inquiry, the North Carolina Administrative Code provides that unacceptable personal conduct includes the willful violation of a known or written work -8rule. 25 NCAC 1J .0614(I). Bulloch s dismissal violation of the in The work rule violation that led to this NCHP s case policy on was his allegedly unbecoming willful conduct, which forbids conduct that tends to bring the [NCHP] into disrepute or reflects discredit upon any member(s) of the [NCHP]. The SPC concluded in its order, however, that Bulloch did not do anything . . . to intentionally violate any [NCHP] policy and did not commit any willful unbecoming conduct. Accordingly, the SPC s order indicates that the Department s decision did not satisfy the second inquiry of the Warren just cause analysis. The Department contends on appeal, however, that the SPC s conclusion on this issue was error because Bulloch s conduct was an intentional and willful violation of the NCHP s unbecoming conduct policy constituting unacceptable personal conduct. This alleged error, the Department urges, warrants reversal of the SPC s conclusion dismiss Bulloch. that the Department lacked just cause to We disagree. In its argument on this issue, the Department focuses on Bulloch s voluntary intoxication and that intoxication s alleged impact on Bulloch s conduct. In addressing this argument, we first address the Department s related argument that the trial court erroneously concluded that the following finding by the -9SPC was supported by substantial evidence: There is no significant evidence to support a conclusion that alcohol was a substantial proximate cause of the behavior of [] Bulloch. In that argument, the Department contends that all the evidence, including the testimony of [Bulloch] and [Dr. Artigues], supports a finding contrary to the challenged finding. The Department further argues that the SPC erred as a matter of law in failing to conclude that alcohol was a substantial proximate cause. We are unpersuaded. While the Department is correct that Dr. Artigues testified that use of alcohol was a factor in Bulloch s behavior, Dr. Artigues also testified that Bulloch s behavior was caused by a combination hypomania, bipolar of alcohol, and his Bulloch s being disorder. Dr. first relatively Artigues dose of unmedicated further lithium, for testified his that Bulloch s bipolar disorder and his emotional breakdown were very important causal factors of Bulloch s conduct, such that Dr. Artigues concluded that Bulloch s conduct was a direct result of his medical illness. Moreover, Bulloch testified that he had previously consumed alcohol and never had similar behavioral problems. In our substantial evidence view, the i.e., foregoing such testimony relevant serves evidence as as a -10reasonable mind might accept as adequate to support a conclusion, Hilliard v. N.C. Dep t of Corr., 173 N.C. App. 594, 598, 620 S.E.2d 14, 18 (2005) to support the SPC s finding that while alcohol may have played some role in [Bulloch s] behaviors, alcohol was not a substantial proximate cause of the behavior. Accordingly, we conclude that the challenged finding of fact is supported by substantial evidence. For the same reasons, we hold that the SPC s failure to conclude that alcohol was a substantial proximate cause of Bulloch s behavior was not erroneous as a matter of law. Because we agree with the SPC that Bulloch s intoxication was not a substantial proximate cause of Bulloch s conduct, we find less convincing the Department s argument that the voluntary nature of Bulloch s intoxication requires a conclusion that Bulloch s conduct was intentional and willful. the SPC, compared with Bulloch s intoxication, As found by the more important factors in Bulloch s conduct were his bipolar disorder and his first dose of lithium. Indeed, the evidence shows that Bulloch had a great deal of difficulty managing his emotions because lithium of his gave bipolar him (Emphasis added). disorder some and unexpected that his first psychoactive dose of effects. Dr. Artigues testified that the common side -11effects of lithium including mental confusion and a breakdown of emotions were consistent with Bulloch s behavior and are more likely to occur from a first dosage. Further, Dr. Artigues testified essentially that because Bulloch was between medications at the time of the incident, he was at an increased risk of an lithium. adverse reaction from a new medication like The foregoing evidence, tending to show that Bulloch was not fully in control of his behavior due to his first dose of lithium and his bipolar disorder, serves as substantial evidence that Bulloch s behavior was not intentional, but rather was a result of his medical condition and the unexpected effects of his prescribed treatment. Moreover, conclusion irrespective that Bulloch s of the conduct accuracy was not of the SPC s intentional and willful behavior that constituted unacceptable personal conduct, we cannot conclude that any error in these conclusions was prejudicial to the Department and warrants reversal of the SPC s conclusion that Bulloch. Cf. reviewing the Department N.C. Gen. Stat. court may only lacked § just cause to dismiss 150B-51(b) (providing that reverse or modify a final a agency decision where an erroneous finding or conclusion prejudices the substantial rights of an aggrieved party). As noted supra, -12under the three-part just cause analysis from Warren, even if an employee s conduct constitutes unacceptable personal conduct, it must still be determined whether that unacceptable personal conduct amounted to just cause for the disciplinary action taken because not every instance of unacceptable personal conduct . . . provides just cause for discipline. Warren, __ N.C. App. at __, 726 S.E.2d at 925. Thus, were we to assume that Bulloch s conduct qualified as unacceptable personal conduct, it must then be determined whether that misconduct amounted to just cause for dismissal, which determination is to be made based upon an examination of the facts and circumstances of each individual case. Id. According to our Supreme Court: Just cause, like justice itself, is not susceptible of precise definition. It is a flexible concept, embodying notions of equity and fairness, that can only be determined upon an examination of the facts and circumstances of each individual case. Id. at 669, 599 S.E.2d at 900-01 (internal quotation marks and citations omitted). In light of the facts and circumstances of a case, the fundamental question is whether the disciplinary action taken Inevitably, was this just. inquiry Id. at requires 669, an 599 S.E.2d irreducible at act 900. of -13judgment that cannot always be satisfied by the mechanical application of rules and regulations. Id. In this case, to determine whether the Department s dismissal of Bulloch was just, the SPC took into account many factors, including Bulloch s training and experience, whether his conduct was an isolated incident, the intentional nature of Bulloch s actions, any injury or medical condition that may have contributed to Bulloch s conduct, the effect of Bulloch s conduct on his colleagues, the likelihood of recurrence, the effect of the conduct on work performance, any extenuating, aggravating, or mitigating circumstances, the blameworthiness of Bulloch s motives, the fairness and completeness of the Department s investigation into Bulloch s conduct, selectivity of enforcement, and the proximate cause of Bulloch s conduct. The SPC concluded weighed that and the balanced totality militate in [] Bulloch s favor. of all of all the these factors pertinent and factors The SPC further concluded that the [] evidence of record demonstrates that the off-duty conduct in issue followed and was proximately caused by [Bulloch s] [b]ipolar [d]isorder medical condition and his first ingestion of a prescribed medication, [l]ithium. This first ingestion of this new medicine, which combined with [Bulloch s] medical condition and some alcohol, proximately caused [Bulloch] to contemplate suicide, discharge a weapon into -14the floor behaviors. at his home, and some related The SPC s findings indicate, however, that despite the existence of this causal medical condition, the Department did not obtain a fitness-for-duty provided especially examination, relevant which evidence likely that was would have necessary for proper personnel decision[-]making consideration under Carroll. This failure to undertake a full medical examination, the SPC concluded, demonstrated irrationality in the the Department s consideration of arbitrariness [] Bulloch s and rights. Indeed, the SPC s findings indicate that Colonel Clay was almost completely unaware of the effects of bipolar disorder and the side effects of lithium. As such, the SPC concluded that the Department failed to properly consider substantial and highly relevant facts determined dismiss dosage that the Bulloch threatened medical and of the Department because suicide, illness circumstances. (1) did Ultimately, not Bulloch s conduct, was a the pharmacological psychoactive drug, and direct have result of effect [l]ithium ; just the SPC cause to including his of and his underlying his (2) first the Department did not fully consider Bulloch s medical condition and, thus, did not fully and properly investigate the incident before determining whether discipline would be appropriate. -15Upon judicial review, the trial court concluded that the SPC s conclusions and determination that just exist were not erroneous as a matter of law. view, the forgoing conclusions are cause did We agree. supported by findings and are not erroneous as a matter of law. not In our the SPC s Moreover, we hold that these conclusions properly support the SPC s ultimate conclusion that the Department lacked just cause to dismiss Bulloch. The evidence clearly shows that, but for the 14 December 2004 incident, Bulloch was an excellent employee of the NCHP. The evidence further shows incident was a controllable through no unexpected despite fault side the that the cause of this but at the time uncontrolled, of Bulloch effects of prescribed treatment. the Department to ability of single medical condition and the However, investigate these causes and their roles in the incident, Bulloch was dismissed from employment before an adequate investigation was completed and before Bulloch s supervisor, Colonel Clay, gained any sort of understanding Moreover, Bulloch s of Bulloch s dismissal for condition hurting and his treatment. girlfriend and attempting to hurt himself was in spite of far more lenient disciplinary action in previous cases where, according to -16evidence in this case, the NCHP (1) gave a trooper a five percent reduction in pay for making 22 threatening phone calls to his ex[-]wife and threatening to kill her and for attempting to initiate a traffic stop of his ex-wife without lawful reason; and (2) gave a trooper five days of suspension without pay for assaulting an ex-girlfriend by grabbing, choking and striking her and, on another occasion, plac[ing] [a woman] in a bent wrist arm lock to the point it hurt. The forgoing evidence, in our view, is sufficient to support the determination that the Department did not have just cause to dismiss Bulloch for his conduct on 14 December 2004. Nevertheless, the Department argues that the SPC s determination that just cause did not exist was improper because it was based on the erroneous findings and conclusions that a fitness-for-duty evaluation was necessary or appropriate to resolve an issue in question. Initially, nonperformance it of separate reasons. appears the that the SPC fitness-for-duty considered evaluation for the two First, the SPC considered the evaluation s nonperformance as evidence of lack of just cause for dismissing Bulloch properly in that consider it showed substantial that and the Department highly relevant failed to facts and -17circumstances underlying regarding medical [] and Bulloch s medical pharmacological history, conditions on his [14 December 2004], [and] the effect those conditions exerted on his behavior on that nonperformance in night. support Second, of an the SPC alternative considered the ground not for imposing formal discipline where an agency fails to comply with its own policy. The Department s argument on this issue goes only to this second consideration. the fitness-for-duty whether duties. an employee evaluation is The Department contends that is medically used only capable of to determine performing his The Department goes on to argue that because Bulloch was dismissed due to his conduct on 14 December 2004 and thus would not be returning to his duties the fitness-for-duty evaluation was unnecessary. Assuming the Department s argument on this issue is correct and the failure to complete the fitness-for-duty evaluation was not a violation of agency policy, these findings do not warrant a reversal or modification of the SPC s decision and order. As noted supra, a reviewing court may only reverse or modify a final agency decision where an erroneous finding or conclusion prejudices the substantial rights of the appealing party. N.C. Gen. Stat. § 150B-51(b). In this case, the SPC s findings and -18conclusions regarding the Department s policy on performing fitness-for-duty evaluations support an alternative ground for reversing the employment, Department s i.e., that the Department s] own rules. decision to terminate Bulloch s decision was violative of [the Irrespective of the SPC s reversal based on the Department s violation of its own rules, the SPC, separately and in the alternative, reversed the Department s decision on grounds of lack of just cause for the termination of [] Bulloch circumstances. under [] unique and particular facts and As discussed supra, this conclusion by the SPC that the Department lacked just cause to dismiss Bulloch was correct. Thus, we need not address the correctness of the alternative ground for reversal and any error with respect to that alternative ground cannot be prejudicial. Cf. State ex rel. Edmisten v. Tucker, 312 N.C. 326, 357, 323 S.E.2d 294, 314 (1984) (holding that where a lower court s ruling is based on alternative grounds, a court on appeal need not address the second alternative ground where the appellate court determines that the first alternative ground was correct). Accordingly, the Department s argument is overruled. The Department next argues that the SPC s application of the rational nexus test from Eury v. N.C. Employment Sec. -19Comm n, 115 N.C. App. 590, 446 S.E.2d 383, disc. review denied, 338 N.C. 309, 451 S.E.2d 635 (1994), was erroneous and warrants reversal of the SPC s conclusion that the Department did not have just cause to terminate Bulloch s employment. We agree that application of the rational nexus test was erroneous, but we disagree that such error warrants reversal. The rational nexus test, as enunciated in Eury, applies where an employee has been dismissed based upon an act of offduty criminal conduct and requires the agency to demonstrate that the dismissal is supported by the existence of a rational nexus between the type of [off-duty] criminal conduct committed [by the employee] and the potential adverse impact on the employee s future ability to perform for the agency. Id. at 611, 446 S.E.2d at 395-96 (emphasis in original). This burden on an agency is in addition to the burden on the agency to prove that there was just cause for dismissal of the employee. See N.C. Gen. Stat. § 126-35(d) (2011). However, in Warren, a decision filed nine months after the Department gave notice of appeal in precedent this case, applying the we stated rational that nexus there was test to no binding non-criminal conduct and decline[d] to extend this test to non-criminal conduct. __ N.C. App. at __, 726 S.E.2d at 924. Accordingly, -20where an agency disciplines an employee based on off-duty noncriminal conduct, that agency is not required to prove the existence of a rational nexus between the employee s conduct and his future performance. Id. Nevertheless, we cannot conclude that the SPC s application of the rational nexus test Department in this case. decision and order, the resulted in prejudice to the First, we note that in the SPC s rational nexus test was considered separately from, and in addition to, the SPC s determination of the nonexistence of just cause. In its designation of the issues before it, the SPC listed the first issue as [w]hether [the Department has] proven that there was just cause to terminate [Bulloch s] employment, and it listed as a second, separate issue [w]hether [the Department has] proven . . . a rational nexus potential adverse perform. between [Bulloch s] impact Moreover, the on SPC off-duty [Bulloch s] concluded conduct future ability separately in and to its decision and order that (1) the totality of all the pertinent factors militate in [] Bulloch s favor and [] there was no adequate just cause for termination, and (2) [the Department] failed to prove that there was a rational nexus. Thus, it appears from the decision and order that the SPC concluded the -21Department did not have just cause to dismiss Bulloch irrespective of the Department s ability to prove a rational nexus between Bulloch s conduct and his future performance. Second, although under Warren the SPC may not require an agency to satisfy the burden of proving a rational nexus between off-duty non-criminal perform, the rational SPC s nexus recurrence, conduct and consideration analysis extenuating, an of employee s factors including the aggravating, ability relevant to to the likelihood of and mitigating circumstances, and the blameworthiness of the motives of the conduct, Eury, 115 N.C. App. at 611, 446 S.E.2d at 396 does not necessarily warrant a finding of prejudice. noted supra, just cause is a flexible concept, Indeed, as embodying notions of equity and fairness, that can only be determined upon an examination of the facts and circumstances of each individual case. Carroll, 358 N.C. at 669, 599 S.E.2d at 900 (internal quotation marks and citations omitted). Certainly, on examination of all the facts, circumstances, and equities of a case, consideration of additional factors shedding light on the employee s conduct is not improper. Thus, we conclude that, while the SPC improperly burdened the Department with proving a rational nexus in this case, that burden did not prejudice the -22Department because (1) the SPC considered the Department s burden to show just cause separately from its burden to prove a rational nexus and (2) because many of the factors relevant to that second Accordingly, burden the were also Department s relevant argument to on the this first. issue is overruled. The Department next argues that, in analyzing factors to determine the existence of just cause, the SPC erred as a matter of law in relying on the seven-factor test in Enterprise Wire. The Department contends that the SPC s consideration of factors listed in In re Enterprise Wire Co. & Enterprise Indep. Union, 46 Lab. Arb. Rep. (BNA) 359 (Mar 28, 1966), 2 was error because application of that decision does not allow the agency to consider all relevant factors mechanical application of rules. Initially, factors from we note that Enterprise improperly requires We are unpersuaded. the Wire and SPC as did not exclusive consider and, the indeed, considered many other factors beyond those listed in the case. Further, the SPC did not improperly conclude that it was bound by 2 the Enterprise Wire decision as the Department suggests. As noted by the Department, Enterprise Wire is a labor arbitration decision not issued by an appellate court in this state and has no precedential value. -23Rather, the SPC simply noted that its previous decisions had recognized the Enterprise Wire factors and, in this case, used those factors [i]n addition to the analysis and factors from other North Carolina cases. There was no improper mechanical application the of rules as Department suggests. The Department s argument is overruled. The Department next argues that the SPC improperly considered Bulloch s post-termination employment record, as well as his post-termination recovery from analysis. his compliance aberrational We agree. with behavior medical in advice the just and cause As correctly noted by the Department, evidence of Bulloch s subsequent employment record and conduct was not available to the Department at the time the decision to dismiss Bulloch was made. Thus, the SPC s consideration of that information in determining whether the Department could properly have dismissed Bulloch when they did was improper. cannot conclude subsequent Department. that the SPC s consideration employment and conduct was However, we of prejudicial Bulloch s to the We note initially that, although the Department did not have the information when Bulloch was dismissed, the fact that Bulloch ably continued his law enforcement career while appropriately dealing with his medical conditions confirms the -24SPC s findings regarding Dr. Artigues testimony that people with bipolar disorder can lead normal and productive lives, including holding jobs that are very stressful. of these findings Department cause of should furthers have Bulloch s dismiss him. the SPC s a fuller gained behavior before Confirmation conclusion that understanding making the the of the decision to Moreover, ignoring the findings and conclusions of the SPC regarding Bulloch s subsequent employment and conduct, we still conclude, in our de novo review of the SPC s determination of the Department s lack of just cause, that the remaining findings and conclusions discussed supra sufficiently support the SPC s just cause determination. Indeed, irrespective of Bulloch s subsequent employment and conduct, the evidence of the underlying medical cause for Bulloch s behavior, including his attempted suicide, and of the Department s failure to fully investigate that cause before dismissing Bulloch is sufficient to support the SPC s Department lacked just cause. determination that the As the pre-termination evidence in this case fully supports the SPC s just cause determination, we cannot obtained presented conclude had by the that SPC Bulloch. a different ignored Thus, the the result would post-termination SPC s have been evidence consideration of -25Bulloch s post-termination employment was not prejudicial error. The Department s argument is overruled. The Department next argues that the SPC erred in finding Bulloch s truthfulness and candor about the 14 December 2004 incident as a mitigating factor in the just cause analysis. disagree. had a We Although the Department may be correct that Bulloch duty to be truthful in his communications with his employer, he certainly could have ignored that duty and impeded the Department s investigation of his actions. see no error in the SPC s consideration Accordingly, we of Bulloch s truthfulness as a mitigating factor. The Department next argues that the SPC erred in considering some limited evidence of selective enforcement and disparate treatment in discipline by [the Department] offered by Bulloch. The Department irrelevant to this case. limited evidence contends We disagree. included actions that this evidence was As noted by the SPC, the by NCHP employees that involved improper intent, such as repeatedly threatening to kill and unlawfully pulling over an ex-wife, assaulting an exgirlfriend and placing her in a bent wrist arm lock to the point it hurt, and assaulting another trooper. The SPC considered these examples and noted that the NCHP employee was -26not terminated in each case. In our view, this evidence was relevant to this case and, thus, not improperly considered by the SPC. The Department s argument is overruled. The Department next argues that several of the SPC s findings and conclusions regarding the existence of just cause are erroneous because they indicate that [the Department] cannot dismiss [Bulloch] for his misconduct because it relates to his bipolar condition. This misapprehends the SPC s determination. argument, however, Rather than concluding that Bulloch s medical condition precludes his dismissal, the SPC concluded that (1) Bulloch s medical condition was a substantial cause of Bulloch s conduct, (2) Bulloch s first dose of a prescribed medication had unintended effects and substantially caused Bulloch s conduct, and (3) the Department s failure to fully investigate these causes showed an inadequate and irrational decision-making process. Nothing in the SPC s decision mere and order indicates that the existence of a medical condition precludes dismissal; however, the SPC is clear that such before a condition disciplinary ought action is to be fully taken. overrule the Department s argument. We taken into agree, account and, thus, -27Finally, the Department contends that the SPC s conclusion that the Department failed to consider all relevant factors in determining Colonel just Clay cause considered for dismissal multiple is factors, erroneous including because medical information regarding bipolar disease and depression, before dismissing Bulloch. However, as found by the SPC and undisputed by the Department, at the time of dismissal, Colonel Clay could not tell whether [b]ipolar [d]isorder could cause certain types of human behaviors, was not familiar with [l]ithium then or now, did not have a thorough understanding of bipolar disorder, reviewed but did not read in its entirety a document from the National Institute of Mental Health on bipolar disorder brought to him after the incident, and could not recall any discussions or communications at all with Dr. Griggs about the effects of [l]ithium on a patient who had been diagnosed with depression and [b]ipolar [d]isorder. In our view, the foregoing findings clearly support the SPC s conclusion that the underlying causes of Bulloch s conduct were not fully considered by the Department before termination. Accordingly, the Department s argument is overruled. Based on the foregoing, we conclude that the SPC correctly determined that the Department did not have just cause to -28dismiss Bulloch. Therefore, we hold that the trial court s review of the SPC s decision and order was proper and that the trial court correctly affirmed the SPC s decision and order. AFFIRMED. Judges STEELMAN and THIGPEN concur.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.