Dorsey v. University of North Carolina-Wilmington

• Decision Date: 19 March 1996
• Docket Number: R,UNC-WILMINGTO,No. COA95-169,COA95-169
• Citation: 122 N.C.App. 58,468 S.E.2d 557
• Court: North Carolina Court of Appeals
• Parties: , 108 Ed. Law Rep. 985 Kathleen DORSEY, Petitioner-Appellant, v.espondent-Appellee.

Page 557

468 S.E.2d 557

122 N.C.App. 58, 108 Ed. Law Rep. 985

Kathleen DORSEY, Petitioner-Appellant, v. UNC-WILMINGTON, Respondent-Appellee.

No. COA95-169.

Court of Appeals of North Carolina.

March 19, 1996.

McSurely and Dorosin by Alan McSurely and Mark Dorosin, Chapel Hill, for petitioner-appellant.

Attorney General Michael F. Easley by Assistant Attorney General Anne J. Brown, for respondent-appellee.

JOHN C. MARTIN, Judge.

Petitioner, Kathleen Dorsey, appeals from an order of the superior court affirming the decision of the State Personnel Commission ("Commission") to reject Ms. Dorsey's claim that she had been discriminated against on the basis of her race in connection with an employment promotion decision by respondent, the University of North Carolina at Wilmington ("UNC-W").

The record shows that Ms. Dorsey, who is black, has been employed as a secretary in the Office of Legal Affairs and Compliance at UNC-W since 1983 and, in 1992, was secretary to the University's general counsel. In early 1992, the Administrative Assistant to Chancellor James Leutze gave notice of her intent to resign. The vacancy in the position was announced to all UNC-W employees, fourteen of whom, including Ms. Dorsey, applied for the position. The position was classified at salary grade 63; Ms. Dorsey's position was classified at salary grade 59.

The applications were reviewed by the Chancellor's staff and six candidates, including Ms. Dorsey, were selected for interviews after consultation with the director of UNC-W's Human Resources Department. Four of the candidates were white and two were black. After reviewing the applications, personally interviewing each candidate, and considering staff recommendations, Chancellor Leutze chose Lynne Goodspeed, who is white, for the position.

Ms. Dorsey alleged the decision had been racially discriminatory and followed UNC-W's grievance procedures. After her grievance was denied, she filed a contested case petition with the Office of Administrative Hearings. After a hearing, the Administrative Law Judge made extensive findings of fact and concluded that Ms. Dorsey had established a prima facie case of discrimination, that UNC-W had rebutted the prima facie case by articulating legitimate nondiscriminatory reasons for not selecting her, and that Ms. Dorsey had not proven that the nondiscriminatory reason was merely a pretext for illegal discrimination. The Administrative Law Judge issued a recommended decision that the decision to promote Ms. Goodspeed be left undisturbed, but that UNC-W consider reclassifying Ms. Dorsey's current position to pay grade 63.

The State Personnel Commission adopted the Administrative Law Judge's recommended findings of fact, with three minor amendments, and his recommended conclusions of law, with the exception of the conclusion of law pertaining to the salary reclassification of Ms. Dorsey's current position, which it determined not to be supported by substantial evidence. The Commission affirmed UNC-W's decision not to select Ms. Dorsey for the administrative assistant position.

Ms. Dorsey petitioned for judicial review, pursuant to G.S. § 150B-45, of the order of the State Personnel Commission. Upon her motion and with consent of UNC-W, the superior court vacated the Commission's decision on the grounds that the Commission had made its ruling without having before it the entire official record of the case and remanded the case to the Commission with instructions to "consider all exceptions properly filed in this matter after a review of the complete official record, and make a final administrative decision in accordance with applicable law."

Upon remand, the Commission again issued a decision and order affirming UNC-W's decision not to select Ms. Dorsey. Ms. Dorsey petitioned for judicial review of the Commission's order, alleging that the order was affected by error of law, was unsupported by substantial evidence, and was arbitrary and capricious. Upon review, the superior court determined that the Commission's decision was not in violation of constitutional provisions; was not in excess of its statutory authority or jurisdiction; was not made upon unlawful procedure; was not affected by other error of law; was not arbitrary or capricious; and was supported by substantial evidence in view of the entire record. Ms. Dorsey now appeals to this Court.

I.

Chapter 150B of the North Carolina General Statutes, the North Carolina Administrative Procedure Act, governs trial and appellate court review of administrative agency decisions. Pursuant to G.S. § 150B-51(b), the superior court may reverse or modify an administrative agency decision if the substantial rights of the petitioners have been prejudiced because the agency's 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 or capricious.

Although G.S. § 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. Amanini v. N.C. Dept. of Human Resources, 114 N.C.App. 668, 674, 443 S.E.2d 114, 118 (1994). If a petitioner asserts that the administrative agency decision was based on an error of law, then "de novo" review is required. Id. " 'De novo' review requires a court to consider a question anew, as if not considered or decided by the agency." Id. (citing Black's Law Dictionary 435 (6th Ed.1990)). "The court may 'freely substitute its own judgment for that of the agency.' " Friends of Hatteras Island v. Coastal Resources Comm., 117 N.C.App. 556, 567, 452 S.E.2d 337, 344 (1995) (quoting Brooks, Commissioner of Labor v. McWhirter Grading Co., 303 N.C. 573, 580-81, 281 S.E.2d 24, 29 (1981)).

On the other hand, if a petitioner asserts that the administrative agency decision was not supported by the evidence, or was arbitrary or capricious, then the court employs the "whole record" test. Amanini, 114 N.C.App. 668, 674, 443 S.E.2d 114, 118. The "whole record" test requires the court to examine all competent evidence comprising the "whole record" in order to ascertain if substantial evidence therein supports the administrative agency decision. Id. "Substantial evidence is that which a reasonable mind would regard as adequately supporting a particular conclusion." Walker v. N.C. Dept. of Human Resources, 100 N.C.App. 498, 503, 397 S.E.2d 350, 354 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991) (citing Joyce v. Winston-Salem State University, 91 N.C.App. 153, 370 S.E.2d 866, cert. denied, 323 N.C. 476, 373 S.E.2d 862 (1988)). 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. In re Appeal of Ramseur, 120 N.C.App. 521, 463 S.E.2d 254 (1995).

II.

By her first and third assignments of error, Ms. Dorsey disputes the superior court's finding that the decision of the Commission to reject her claim of "disparate treatment" against UNC-W was supported by the record. Ms. Dorsey contends that this finding was in error because UNC-W (1) failed to produce a legitimate nondiscriminatory reason for rejecting her and hiring Ms. Goodspeed, and (2) relied only on "subjective and pretextual" qualifications in its hiring process. Her argument challenges the sufficiency of the record evidence, thus the applicable standard of review is the "whole record" test.

When, as in the present case, an employee raises a claim of "disparate treatment" in an employment promotion decision, she is asserting that the employer specifically treated her less favorably than other employees. N.C. Dept. of Correction v. Hodge, 99 N.C.App. 602, 611, 394 S.E.2d 285, 290 (1990). According to "disparate treatment" analysis, once the complaining employee meets her initial burden of proving, by a preponderance of the evidence, a prima facie case of such "disparate treatment", the employer then has the burden of articulating some legitimate, nondiscriminatory reason for the employee's rejection. Id. The employer's burden is satisfied if it simply produces evidence that it hired a better-qualified candidate. Id. However, the employee can ultimately prevail in her claim of "disparate treatment" if she can prove that the employer's claim to have hired a better-qualified applicant is pretextual by showing that she was, in fact, better-qualified than the person chosen for the job. Id. at 613, 394 S.E.2d at 291.

In the present case, the record contains substantial evidence that Ms. Goodspeed was, in fact, better-qualified for the position than was Ms. Dorsey. The advertised qualifications for the position, as contained in the notice for applications, were:

ADMINISTRATIVE ASSISTANT I Serves as office manager responsible for supervision of clerical staff, budgeting, accounting, and purchasing functions. Performs chief executive level secretarial duties with high degree of accuracy and efficiency. Plans and coordinates meetings including travel and room accommodations, agenda, and record keeping. Requires proficiency in shorthand, effective written and oral communication skills, experience in maintaining a travel and appointment calendar ...