Corbett v. Ncdmv

• Citation: 660 S.E.2d 233
• Decision Date: 06 May 2008
• Docket Number: No. COA07-791.,COA07-791.
• Court: Court of Appeal of North Carolina (US)
• Parties: Bennie Leon CORBETT, Petitioner, v. NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent.

660 S.E.2d 233

Bennie Leon CORBETT, Petitioner, v. NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent.

No. COA07-791.

Court of Appeals of North Carolina.

May 6, 2008.

Appeal by respondent from order entered 29 June 2007 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 15 January 2008.

Ferguson, Stein, Chambers, Gresham and Sumter, by Julius L. Chambers, Charlotte, for petitioner-appellee.

Attorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton, for respondent-appellant.

CALABRIA, Judge.

The North Carolina Division of Motor Vehicles ("NCDMV") appeals an order affirming an administrative law judge's determination that respondent discriminated against Bennie Leon Corbett ("Corbett"). We affirm.

Corbett, an African-American employee of NCDMV, began employment as a vehicle enforcement officer with the motor carrier program ("motor carrier officer") on 1 December 1997. A motor carrier officer inspects commercial vehicles for safety on the highways. Shortly after Corbett began employment, he was transferred to a weight officer position under Captain J.F. Jones ("Capt. Jones"). In September 2000, Corbett requested and was granted a transfer to return to the motor carrier program. Capt. Jones remained Corbett's district supervisor.

On 22 February 2002, Corbett notified Col. David Richards ("Col. Richards"), the supervising director of the enforcement division of NCDMV, of his intention to run for Sheriff of Pender County ("Sheriff"). Corbett informed Col. Richards he would not use any state-owned equipment during his campaign, in accordance with NCDMV's policy regarding employees' candidacy for public office. Corbett was told by his district supervisor, Capt. Jones, that NCDMV did not "foresee any problems." Corbett paid his filing fee and began to campaign.

In June of 2002, Amber Bell ("Bell") of the Office of Special Counsel ("OSC") in Washington, D.C., learned that Corbett may have violated the Hatch Act. The Hatch Act prohibits employees who are employed by a state agency that receives federal funding from participating as candidates in partisan elections. 5 U.S.C.A. §§ 1501-1503 (2007). After unsuccessful attempts to contact Corbett directly, Bell notified Col. Mike Sizemore ("Col. Sizemore"), Col. Richards' successor and the acting colonel of the enforcement division, of OSC's investigation of Corbett. Col. Sizemore believed that if OSC found Corbett to be in violation of the Hatch Act, then NCDMV "would be at risk to lose all its federal highway dollars." Bell asked about Corbett's duties and the source of funding for his salary and equipment. Col. Sizemore told her "essentially everything in the fifty-eight positions . . . in the motor carrier program came from federal highway money, the equipment and the personnel." Bell told Col. Sizemore that "it appeared that . . . Corbett was in violation," if Corbett continued employment with NCDMV and continued to be a candidate. Bell also told Col. Sizemore that violators of the Hatch Act have a choice to "either . . . drop out of the election that they were in, or . . . resign from the position they held with the state."

Col. Sizemore notified Corbett's district supervisor, Capt. Jones, of the violation and asked Capt. Jones whether any other employees under his supervision were candidates for public office or held a public office. Capt. Jones named Officer Hubert Sealey ("Sealey"), an African-American employee who was a candidate for commissioner of Robeson County. Capt. Jones also supervised Lynn McCall ("McCall"), a Caucasian employee who held an elected city council position in Brunswick County. Capt. Jones mentioned Sealey's name but not McCall's to Col. Sizemore. Col. Sizemore instructed Capt. Jones to contact Sealey and Corbett regarding the Hatch Act limitations. Both Sealey and Corbett received memos from Capt. Jones directing them to either resign or withdraw from their campaigns. After further investigation of Sealey's position, the OSC determined his position did not receive the level of federal funding to render him subject to the Hatch Act.

Corbett was given ten days to decide whether to resign or withdraw from the race. He submitted an oral request to Capt. Jones for a leave of absence without pay, intending to resume his job once the campaign was over. Capt. Jones denied the request. Capt. Jones testified his denial was based on Corbett's failure to give seven days notice in advance of using vacation time. Corbett also asked for a transfer to the weight officer position, but was denied. On 21 July 2002, Corbett resigned under protest.

On 3 September 2002, Corbett applied to the Office of Administrative Hearings ("OAH") to contest his resignation. On 26 April 2004, Senior Administrative Law Judge Fred G. Morrison, Jr. ("Judge Morrison") found in favor of Corbett. On 17 June 2004, the State Personnel Commission ("SPC") considered Judge Morrison's recommendation. On 6 August 2004, the SPC dismissed Corbett's case for lack of jurisdiction.

On 28 February 2005, the SPC entered another decision and order. This order was not included in the record. Corbett requested judicial review of the SPC's 28 February 2005 decision in Wake County Superior Court. Wake County Superior Court Judge Kenneth Titus ("Judge Titus") reviewed the SPC's second order and determined the SPC did not cite reasons for not adopting Judge Morrison's findings as required by N.C. Gen. Stat. § 150-36(b)(1) (2007). Judge Titus remanded the matter to the SPC for further findings.

On 15 November 2005, the SPC reversed the OAH decision and found NCDMV's actions to be non-discriminatory. Corbett appealed to Wake County Superior Court.

In an order entered 29 June 2007, Wake County Superior Court Judge A. Leon Stanback ("Judge Stanback") reversed the SPC's 15 November 2005 decision and order, adopted the findings of the OAH, ordered Corbett to be reinstated to the same or similar position from which he resigned, and awarded attorneys' fees to Corbett. NCDMV appeals.

I. Jurisdiction

NCDMV argues resignation is not one of the grounds for appeal of a contested case under N.C. Gen.Stat. § 126-34.1. Therefore, NCDMV contends the OAH lacked grounds to hear Corbett's contested case. We disagree.

N.C. Gen.Stat. § 126-34.1(e) (2007) specifies that any issue for appeal through filing of a contested case that "has not been specifically authorized by this section shall not be grounds for a contested case under Chapter 126." See also University of N.C. at Chapel Hill v. Feinstein, 161 N.C.App. 700, 703, 590 S.E.2d 401, 403 (2003). N.C. Gen.Stat. § 126-34.1(a) allows State employees to file in the Office of Administrative Hearings a contested case

only [for] the following personnel actions or issues:

. . . .

(2) An alleged unlawful State employment practice constituting discrimination, as proscribed by G.S. 126-36, including:

a. Denial of a promotion, transfer, or training, on account of the employee's . . . race. . . .

b. Demotion, reduction in force, or termination of an employee in retaliation for the employee's opposition to alleged discrimination on account of the employee's . . . race. . . .

. . . .

(10) Harrassment in the workplace based upon . . . race, color, national origin . . . whether the harassment is based upon the creation of a hostile work environment or upon a quid pro quo.

Constructive discharge is recognized as grounds for jurisdiction over an employee's claim where an employee alleges his or her choices are limited to working under conditions in violation of the law or be deemed to have resigned. In Campbell v. N.C. Dep't of Transp., 155 N.C.App. 652, 661, 575 S.E.2d 54, 60 (2003), this Court concluded that when an employee is "deemed to have voluntarily resigned" for his or her inability or unwillingness to work in conditions that may constitute discrimination, such resignation may constitute a constructive discharge entitling the employee to file a contested case alleging termination pursuant to N.C. Gen.Stat. § 126-34.1(a)(2)(b).

Corbett's contested case hearing was based on his resignation under protest¹. Corbett alleged he was forced to either resign or withdraw from the campaign for Sheriff. Corbett alleged this treatment was discriminatory because only African-American employees were given the choice to withdraw from the campaign or resign from employment. Corbett's letter of resignation stated he resigned under protest and his resignation was not voluntary. We hold this was sufficient to establish a claim under N.C. Gen.Stat. § 126-34.1.

II. Standard of Review

"When this Court reviews appeals from superior court either affirming or reversing the decision of an administrative agency, our scope of review is twofold . . .: (1) whether the superior court applied the appropriate standard of review and, if so, (2) whether the superior court properly applied this standard." Mayo v. N.C. State Univ., 168 N.C.App. 503, 507, 608 S.E.2d 116, 120 (2005) (citation omitted). N.C. Gen.Stat. § 150B-51(c) (2007) provides the standard of review of a final decision in a contested case in which the agency does not adopt the ALJ's decision:

[T]he [superior] court shall review the official record, de novo, and shall make findings of fact and conclusions of law. In reviewing the case, the court shall not give deference to any prior decision made in the case and shall not be bound by the findings of fact or the conclusions of law contained in the agency's final decision. The court shall determine whether the petitioner is entitled to the relief sought in the petition, based upon its review of the official record. The court reviewing a final decision under this subsection may adopt the administrative law judge's decision; may adopt, reverse, or modify the agency's decision; may remand the case to the agency for further explanations under G.S. 150B-36(b1), 150B-36(b2), or 150B-36(b3), or reverse or modify the final...