Campbell v. Dept. of Transp., No. COA02-81.

Docket NºNo. COA02-81.
Citation155 NC App. 652, 575 S.E.2d 54
Case DateJanuary 21, 2003
CourtCourt of Appeal of North Carolina (US)

575 S.E.2d 54
155 NC App.
652

Carolyn CAMPBELL, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION—DIVISION OF MOTOR VEHICLES, Respondent

No. COA02-81.

Court of Appeals of North Carolina.

January 21, 2003.


575 S.E.2d 56
Edmisten & Webb, by William Woodward Webb, Sr., Raleigh, for petitioner-appellee

Attorney General Roy Cooper, by Associate Attorney General Kimberly P. Hunt and Special Deputy Attorney General Hal F. Askins, for respondent-appellant.

CAMPBELL, Judge.

Respondent, the North Carolina Department of Transportation Division of Motor Vehicles, appeals from an order of the Superior Court reversing the decision of the State Personnel Commission and adopting the recommended

575 S.E.2d 57
decision of the Administrative Law Judge

Petitioner was employed by respondent from 5 October 1998 until 8 April 1999 as a Processing Assistant IV. Petitioner's job duties required her to work with stolen vehicle records kept in open files. The files were kept on shelves, not in filing cabinets, with some filed in boxes on the shelves. Petitioner has suffered from asthma since childhood and has severe allergies to dust and paint fumes. In late October 1998, petitioner noticed her conditions were aggravated, apparently by the dust in the open files. Petitioner sought medical care for asthma attacks in November and December 1998.

In early January 1999, while painters worked on her floor, petitioner was assigned to purge the open files. On 11 January 1999, petitioner suffered a severe asthma attack and was hospitalized for five days. Dr. Josephine Brown, M.D. ("Dr.Brown"), petitioner's physician, testified that upon arrival "this woman was very close to death in the emergency room. She was close to being what we call intubated, having to put in a tube for artificial respiration." On 15 January 1999, Dr. Brown, wrote to Respondent explaining that petitioner is "severely allergic to dust and paint fumes.... She will not be able to return under her present working conditions, which exposed her to dust and also to paint fumes." On 25 January 1999, petitioner returned to work. Respondent offered petitioner a mask to protect her from the dust in the records and offered to remove her from the area when painting was scheduled. Petitioner left work since Dr. Brown had not approved of her working with only a mask to prevent another attack.

On 28 January 1999, petitioner met with Mr. Ronald Oates ("Mr.Oates"), the State of North Carolina Department of Transportation's Americans with Disabilities Act (ADA) coordinator. Mr. Oates recommended that respondent, as a reasonable accommodation, search for another placement for petitioner where the environment is well ventilated, there are no open paper files or excessive dust, and no paint or other fumes. On 15 February 1999, Dr. Brown again wrote to respondent and recommended that petitioner "not be exposed to dust and fumes in the workplace, as this will exacerbate her asthma."

In relation to a workers' compensation claim petitioner filed in January, petitioner's work area was tested for respirable dust levels and petitioner was examined by another doctor for a second opinion. The dust level test revealed the respirable dust levels were very low. The report recommended that petitioner "not be allowed to open up old file boxes that appear to be dusty or have visible water damage or signs of dampness" without a face mask. On 3 March 1999, petitioner met with Dr. Craig LaForce, M.D. ("Dr.LaForce") an allergy specialist. Dr. LaForce recommended petitioner increase use of her inhaler, monitor her peak flow meter measurements and utilize a HEPA filtration system. In response to this recommendation, Dr. Brown wrote to respondent opposing Dr. LaForce's solution, explaining that "[t]he HEPA filtration system and mask may decrease the amount of dust, but judging from the severity of the last asthma attack, I recommend she be placed in another environment."

As a result of Dr. LaForce's recommendations, respondent wrote to petitioner on 19 March 1999 offering to purchase the HEPA filter and requiring that she return to work within seven days. Petitioner did not return to work on the advice of Dr. Brown, who explained "the [HEPA] machine is like a miniature air conditioner that is cold .... [it] could enhance the probability of another asthma attack." Therefore, petitioner wrote to respondent requesting again that Dr. Brown's recommendation be followed, that "I be transferred into another position in a different building at the same grade level. I will also accept a position at a lower grade."

Respondent and petitioner met on 5 April 1999 to discuss possible solutions. Respondent firmly maintained that its willingness to provide a HEPA filtration system and face mask constituted a reasonable accommodation. Petitioner firmly maintained that a reasonable accommodation would be assistance in seeking another placement. Lieutenant Colonel Brinson ("Lt.Col.Brinson") testified that he could not follow petitioner's

575 S.E.2d 58
request, as recommended by respondent's ADA coordinator, and assist in placing petitioner in a well-ventilated environment without excessive dust because "I did not have another position that does not work with files." Petitioner's testimony sheds light on this exchange
Q: ... what, if any, efforts did they make to secure you another position away from this work site in another part of the building or another building or wherever?
A: Well, they didn't because on the 5th of April of `99 when I had the meeting with, you know, several people [from DOT], you know, I was told that there was dust everywhere and they didn't have anything—any position for me to go into because there was dust everywhere.
Q: And to your knowledge, is that correct? I mean, is there dust everywhere throughout all the buildings that—
A: Well, there is dust all over the place, but it's not open files in every office that you work in. I have worked in several offices that, you know, I worked with files, but they was in a file cabinet and the dust was more contained than being open.

The meeting ended without compromise. Respondent explained to petitioner that if she did not return to work by 8 April 1999 she would be deemed to have voluntarily resigned her position. Following Dr. Brown's advice petitioner did not return to work.

On 9 June 1999, petitioner filed a petition for a contested case hearing alleging she was discriminated against due to her asthmatic condition and was unlawfully terminated. On 3 December 1999, Administrative Law Judge Robert Roosevelt Reilly, Jr. issued a recommended decision finding that petitioner was a handicapped person who had been unlawfully discriminated against, and respondent failed to make a reasonable accommodation. On 16 May 2000, the State Personnel Commission ("Commission") issued a decision rejecting the recommended decision and finding that jurisdiction was lacking, but that even if it existed, respondent had made reasonable accommodations for petitioner. On 30 October 2001, Wake County Superior Court Judge Abraham Penn Jones reversed the decision of the Commission, holding that the Commission's findings of fact and conclusions of law were unsupported by substantial evidence and were arbitrary and capricious, and the conclusions of law were also affected by errors of law. The Superior Court adopted the recommended decision of the Administrative Law Judge.

Respondent appeals to this Court asserting there is competent evidence to support the Commission's decision, the decision was not arbitrary and capricious, and there was no error of law. Respondent asserts the decision of the superior court should be reversed and the Commission's decision should be reinstated.

This Court's review is governed by N.C. Gen.Stat. § 150B-51 (2001). "Our review of a superior court order regarding an agency decision consists of: `(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.'" Souther v. New River Area Mental Health, 142 N.C.App. 1, 3, 541 S.E.2d 750, 752, aff'd, 354 N.C. 209, 552 S.E.2d 162 (2001) (citations omitted). "The proper standard of review depends upon the particular issues presented on appeal." Employment Security Comm. v. Peace, 122 N.C.App. 313, 317, 470 S.E.2d 63, 67 (1996).

Where the petitioner alleges that the agency decision was either unsupported by the evidence, or arbitrary and capricious, the [reviewing] court applies the `whole record test' to determine whether the agency decision was supported by substantial evidence contained in the entire record. Where the petitioner alleges that the agency decision was based on error of law, the reviewing court must examine the record de novo, as though the issue had not yet been considered by the agency.

Souther, 142 N.C.App. at 3-4, 541 S.E.2d at 752 (citation omitted). "[I]t appears uncontroverted that the foregoing rule should not be interpreted to mean the manner of our review is governed merely by the label an appellant places upon an assignment of error; rather, we first determine the actual nature of the contended error, then proceed with an

575 S.E.2d 59
application of the proper scope of review." Amanini v. N.C. Dept. of Human Resources, 114 N.C.App. 668, 675, 443 S.E.2d 114, 118 (1994). Therefore, we address each issue on appeal with the appropriate standard of review set forth in N.C. Gen.Stat. § 150B-51.

The issues presented to the Court on appeal are whether or not the superior court was correct in determining that: (I) the Commission committed an error of law concluding that the Office of Administrative Hearings lacked jurisdiction; and (II) the Commission's conclusions of law were affected by errors of law, unsupported by substantial evidence, and arbitrary and capricious; and (III) the Commission's findings of fact were unsupported by substantial evidence and arbitrary and...

To continue reading

Request your trial
12 practice notes
  • Taylor v. Carolina Restaurant Group, Inc., No. COA04-981.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 7, 2005
    ...(1998)). Our de novo review also applies to mixed questions of fact and law. Campbell v. N.C. Dep't of Transport., 155 N.C.App. 652, 667, 575 S.E.2d 54, 64, disc. rev. denied, 357 N.C. 62, 579 S.E.2d 386 II. De Novo Review Both the opinion and award of the deputy commissioner and Chairman L......
  • Clark v. United Emergency Services, Inc., No. COA07-592 (N.C. App. 4/15/2008), No. COA07-592
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • April 15, 2008
    ...having such an impairment." N.C. Gen. Stat. § 168A-3(7a)(d). In Campbell v. North Carolina Dept. Of Transp., 155 N.C. App. 652, 659-60, 575 S.E.2d 54, 60 (2003), an employee properly alleged she had a physical impairment that substantially limited major life activities to qualify as a perso......
  • Brackett v. SGL Carbon Corp., No. COA02-965.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 3, 2003
    ...not punishing employees for exercising their statutory rights under the Workers' Compensation Act was tenable...." ___ N.C.App. at ___, 575 S.E.2d at 54. Although the Court concluded that it arguably was, it did not decide the issue definitively because the evidence proffered by the plainti......
  • Salter v. E & J HEALTHCARE, INC., No. COA02-88.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • January 21, 2003
    ...See Amos, 331 N.C. 348, 416 S.E.2d 166. Plaintiffs are now allowed to maintain suits under narrow exceptions to the at-will doctrine 575 S.E.2d 54 grounded in public policy. See e.g., Deerman v. Beverly California Corp., 135 N.C.App. 1, 518 S.E.2d 804 (1999), disc. review denied, 351 N.C. 3......
  • Request a trial to view additional results
12 cases
  • Taylor v. Carolina Restaurant Group, Inc., No. COA04-981.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 7, 2005
    ...(1998)). Our de novo review also applies to mixed questions of fact and law. Campbell v. N.C. Dep't of Transport., 155 N.C.App. 652, 667, 575 S.E.2d 54, 64, disc. rev. denied, 357 N.C. 62, 579 S.E.2d 386 II. De Novo Review Both the opinion and award of the deputy commissioner and Chairman L......
  • Clark v. United Emergency Services, Inc., No. COA07-592 (N.C. App. 4/15/2008), No. COA07-592
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • April 15, 2008
    ...having such an impairment." N.C. Gen. Stat. § 168A-3(7a)(d). In Campbell v. North Carolina Dept. Of Transp., 155 N.C. App. 652, 659-60, 575 S.E.2d 54, 60 (2003), an employee properly alleged she had a physical impairment that substantially limited major life activities to qualify as a perso......
  • Brackett v. SGL Carbon Corp., No. COA02-965.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 3, 2003
    ...not punishing employees for exercising their statutory rights under the Workers' Compensation Act was tenable...." ___ N.C.App. at ___, 575 S.E.2d at 54. Although the Court concluded that it arguably was, it did not decide the issue definitively because the evidence proffered by the plainti......
  • Salter v. E & J HEALTHCARE, INC., No. COA02-88.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • January 21, 2003
    ...See Amos, 331 N.C. 348, 416 S.E.2d 166. Plaintiffs are now allowed to maintain suits under narrow exceptions to the at-will doctrine 575 S.E.2d 54 grounded in public policy. See e.g., Deerman v. Beverly California Corp., 135 N.C.App. 1, 518 S.E.2d 804 (1999), disc. review denied, 351 N.C. 3......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT