Employment Sec. Com'n of North Carolina v. Peace

Citation470 S.E.2d 63,122 N.C.App. 313
Decision Date07 May 1996
Docket NumberNos. COA94-1283,COA95-678,s. COA94-1283
CourtCourt of Appeal of North Carolina (US)
PartiesEMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Appellant-Respondent, v. William PEACE, Appellee-Petitioner. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Appellee-Respondent, v. William H. PEACE, III, Appellant-Petitioner.

Attorney General Michael F. Easley by Chief Deputy Attorney General Andrew A. Vanore, Jr., and Assistant Attorney General Valerie Bateman, for North Carolina Department of Justice; and Chief Counsel T.S. Whitaker and Fred R. Gamin, Raleigh, for North Carolina Employment Commission, respondent appellant-appellee.

Hilliard & Jones by Thomas Hilliard, III, Raleigh, for petitioner appellant-appellee.

SMITH, Judge.

Petitioner, William H. Peace, III, appeals a superior court order reversing a State Personnel Commission decision which reinstated petitioner as an employee of respondent, the Employment Security Commission of North Carolina ("ESC"). ESC appeals a superior court order affirming an Office of Administrative Hearing ("OAH") decision finding a Title VII violation and reinstating petitioner. After carefully reviewing the record, we agree with petitioner's contention that ESC has failed to show that it dismissed petitioner with just cause. Therefore, we affirm the decision of the State Personnel Commission reinstating petitioner. For reasons stated herein, we do not address the merits of ESC's appeal.

William H. Peace, III, began his employment with respondent on 15 October 1985 as its Equal Employment Opportunity ("EEO") officer. On 10 April 1991, an incident between Peace and a co-worker occurred which ultimately led to Peace's dismissal for alleged unacceptable personal conduct. The State Personnel Commission adopted, inter alia the following facts as recommended by the Administrative Law Judge ("ALJ"): During his 1985 orientation, petitioner was informed that by paying $2.00 per month to the Personnel Office petty fund, he would be entitled to obtain an occasional cup of coffee from a pot located in the personnel file room. He paid the dues; however, his usual practice was to go to the agency's cafeteria for morning coffee. Prior to 10 April 1991, no one informed petitioner that his payment into the petty fund did not entitle him to obtain coffee from the personnel file room. Over the years, on an irregular basis, he obtained coffee from the petty fund coffee pot. At a staff meeting which petitioner did not attend, a coffee fund was established, for which membership dues were $3.40 per month. Petitioner was not made aware of a separate coffee fund, nor was he asked to join.

On 10 April 1991, petitioner got a cup of coffee from the personnel file room. As petitioner was leaving the office with the coffee an exchange between him and Ms. Catherine High, a supervisor in the personnel office, took place in which she told him that he should pay her for the coffee. Petitioner refused. Ms. High called petitioner "despicable" and told him she hoped he was fired. She ended the colloquy by telling petitioner that, if he got another cup of coffee and did not pay her, she would get a cup of coffee and scald him with it. Ms. High informed her supervisor and Mr. Gene Baker, who became petitioner's immediate supervisor as of 22 April 1991, of the incident.

On the afternoon of 10 April 1991, petitioner contacted the magistrate's office regarding the incident with Ms. High. He was informed that if he believed she was capable of carrying out her threat, he should take out a warrant against her. Petitioner spoke with Ms. High following his conversation with the magistrate's office, at which time he gave her an opportunity to apologize. Ms. High did not apologize. Thereafter, petitioner had the magistrate's office issue summons against Ms. High charging her with communicating a threat. The charge was dismissed by the trial court as frivolous and petitioner was ordered to pay court costs.

Petitioner was not contacted by his superiors regarding the incident until he received a predismissal conference memorandum on 5 June 1991, from Gene Baker, his immediate supervisor. Following a 6 June dismissal conference, petitioner was discharged for unacceptable personal conduct. In a 7 June letter, Ann Q. Duncan, Chairperson of the Employment Security Commission explained that petitioner was being dismissed for unacceptable conduct, including taking the coffee without paying Catherine High and filing criminal charges against High, which were found to be frivolous. Such conduct, said Duncan, caused petitioner's reputation as the EEO officer at ESC to be called into question and his respect among fellow employees diminished.

Petitioner filed two appeals to the ESC decision to discharge him. The basis of his appeals were that ESC lacked "just cause" to dismiss him pursuant to N.C. Gen.Stat. § 126-35 (1995), and that he had been discharged in retaliation for having filed discrimination charges against ESC in 1989, in violation of Title VII, Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C.2000e-3 (1964). Petitioner did not appeal upon a state claim of retaliatory discharge pursuant to N.C. Gen.Stat. § 126-36. Pursuant to N.C. Gen.Stat. § 7A-759, petitioner's charge of retaliatory discharge was investigated by the Civil Rights Division of the Office of Administrative Hearings.

Through its investigation, OAH found reasonable cause to believe that a violation of Title VII had occurred. OAH presented petitioner with three options. He could: (1) receive a right to sue letter; (2) commence a contested case hearing in OAH; or (3) do nothing. Petitioner chose to commence a contested case hearing with regard to the retaliatory discharge claim. He also filed a petition for contested case hearing with regard to the N.C. Gen.Stat. § 126-35 lack of "just cause" claim. Pursuant to an order of the Chief Administrative Law Judge of OAH, both cases were consolidated for hearing. A hearing was conducted by ALJ Sammie Chess on 12-14 July 1993.

Pursuant to N.C. Gen.Stat. § 7A-759(e), an ALJ decision on the merits of a retaliatory discharge claim is a final decision binding on the parties. However, with regard to the N.C. Gen.Stat. § 126-35 lack of "just cause" claim, an ALJ issues a recommended decision to the State Personnel Commission, which then issues a final decision. N.C. Gen.Stat. § 126-37 (1995). ALJ Chess issued two separate decisions following the hearing. In his recommended decision to the State Personnel Commission, ALJ Chess found that ESC had the burden of proving it had "just cause" to discharge petitioner. ALJ Chess concluded that ESC had failed to meet that burden and recommended petitioner be reinstated. In his final decision regarding the retaliatory discharge claim pursuant to Title VII, ALJ Chess concluded that petitioner's discharge violated Section 704(a) of Title VII of the Civil Rights Act of 1964, in that his dismissal was retaliatory. Pursuant to that holding, ALJ Chess ordered petitioner reinstated.

The ALJ's recommended decision reinstating petitioner for lack of "just cause" was adopted, with slight modification, by the State Personnel Commission. ESC appealed the State Personnel Commission order and the ALJ final decision separately, pursuant to N.C. Gen.Stat. § 150B-50 (1995). In a 13 August 1994 order, Judge Narley L. Cashwell upheld the final decision of the ALJ with regard to the retaliatory discharge claim in which petitioner was ordered reinstated. In a 13 March 1995 order, Judge Wiley F. Bowen reversed the final decision of the State Personnel Commission and dismissed Peace's petition challenging his dismissal. From these superior court orders, ESC appeals Judge Cashwell's order affirming the retaliatory discharge claim. Petitioner appeals Judge Bowen's order reversing the State Personnel Commission decision to reinstate him.

Initially, we note that the two cases should have been consolidated for all purposes except the final agency decision by the ALJ pursuant to N.C. Gen.Stat. § 150B-26. Failing that, the appeals from the ALJ and State Personnel Commission orders should have been consolidated in ESC's petition for judicial review to the superior court. At the very least, the two appeals should have been consolidated for hearing in the superior court, as both appeals involved identical facts and similar questions of law. As a result of the failure to consolidate and the filing of two separate petitions for judicial review, two inconsistent orders were issued from Wake County Superior Court. In addition, we are now presented with two records on appeal and two sets of lengthy briefs, all arising out of the same set of facts.

After careful review of both records and both sets of briefs in this case, we agree with petitioner that the superior court erred in reversing the State Personnel Commission decision to reinstate petitioner. For this reason, it is unnecessary for us to reach the merits of ESC's appeal of the superior court order affirming the ALJ order to reinstate petitioner under the retaliatory discharge claim, as that issue is rendered moot by our decision reinstating the decision of the State Personnel Commission.

This Court's as well as the superior court's review of a final agency decision is governed by N.C. Gen.Stat. § 150B-51 (1995). In Re: Appeal of Ramseur, 120 N.C.App. 521, 463 S.E.2d 254 (1995); Dockery v. Dept. of Human Resources, 120 N.C.App. 827, 463 S.E.2d 580 (1995). The proper standard of review depends upon the particular issues presented on appeal. Brooks v. Ansco & Associates, 114 N.C.App. 711, 716, 443 S.E.2d 89, 92 (1994). "If it is alleged that the agency's decision was based on an error of law, then de novo review is required. If, however, it is alleged that the agency's decision was not supported by the evidence or that the decision was arbitrary or capricious, then the reviewing court must apply the 'whole record' tes...

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3 cases
  • Peace v. Employment Sec. Com'n of North Carolina, 599A97.
    • United States
    • United States State Supreme Court of North Carolina
    • December 4, 1998
    ...and petitioner's appeal, and both were originally heard in the Court of Appeals on 7 May 1996. See Employment Sec. Comm'n v. Peace, 122 N.C.App. 313, 470 507 S.E.2d 277 S.E.2d 63 (1996). This Court allowed the ESC's petition for discretionary review and thereupon remanded the case to the Co......
  • Campbell v. Dept. of Transp., COA02-81.
    • United States
    • Court of Appeal of North Carolina (US)
    • January 21, 2003
    ......652 Carolyn CAMPBELL, Petitioner, . v. . NORTH CAROLINA DEPARTMENT OF TRANSPORTATION—DIVISION ... issues presented on appeal." Employment Security Comm. v. Peace, 122 N.C.App. 313, 317, ......
  • Employment Sec. Com'n of North Carolina v. Peace, 261PA96
    • United States
    • United States State Supreme Court of North Carolina
    • March 6, 1997
    ...Bradshaw, Assistant Attorney General, for Employment Security Commission. Thomas Hilliard, III, Raleigh, for Peace. Prior report: 122 N.C.App. 313, 470 S.E.2d Upon consideration of the petition filed by Attorney General in this matter for discretionary review of the decision of the North Ca......

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