Floyd v. North Carolina Dept. of Commerce, 8910SC1033

• Court: North Carolina Court of Appeals
• Writing for the Court: ARNOLD
• Citation: Floyd v. North Carolina Dept. of Commerce, 392 S.E.2d 660, 99 N.C.App. 125 (N.C. App. 1990)
• Decision Date: 19 June 1990
• Docket Number: No. 8910SC1033,8910SC1033
• Parties: Charles FLOYD v. N.C. DEPARTMENT OF COMMERCE.

Page 660

392 S.E.2d 660

99 N.C.App. 125

Charles FLOYD v. N.C. DEPARTMENT OF COMMERCE.

No. 8910SC1033.

Court of Appeals of North Carolina.

June 19, 1990.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Charles J. Murray, Raleigh, for respondent-appellee.

Genevieve C. Sims, Raleigh, for petitioner-appellant.

ARNOLD, Judge.

Petitioner Floyd contends that the superior court judge erred in affirming the State Personnel Commission's decision and order because it was not supported by substantial evidence. A permanent employee subject to the State Personnel Act may only be discharged for just cause. N.C.Gen.Stat. § 126-35. According to State Personnel Commission regulations promulgated pursuant to N.C.Gen.Stat. § 126-35, disciplinary action including dismissal can be imposed on the basis of either job performance or personal conduct. N.C.Admin.Code tit. 25, r.01J.0604. Petitioner was dismissed for personal misconduct in the form of insubordination. Insubordination is a willful failure or refusal to comply with known policies and procedures. Kandler v. Dept. of Correction, 80 N.C.App. 444, 451, 342 S.E.2d 910, 914 (1986).

Petitioner Floyd does not contest the agency's findings as to his conduct in April 1986. Rather, he argues that his conduct did not constitute insubordination. Therefore, the question before us is whether there is substantial evidence in the whole record to support the Commission's conclusions that petitioner's conduct constituted insubordination.

Initial judicial review of administrative agency decisions is governed by N.C.Gen.Stat. § 150B-51(b). Under § 150B-51(b)(5), the initial reviewing court, here, the superior court, applies the "whole record" test to determine if the agency's findings and conclusions are supported by substantial evidence in light of the whole record.

Appellate judicial review of the decision of the lower court is governed by N.C.Gen.Stat. § 150B-52. The scope of review to be applied by this Court is the same as for other civil cases. Henderson v. N.C. Dept. of Human Resources, 91 N.C.App. 527, 531, 372 S.E.2d 887, 890 (1988). Our review is, therefore, limited to determining if the superior court made any errors of law. Id. To make this determination, we must decide whether the superior court was correct as a matter of law in holding that the State Personnel Commission's decision and order was supported by substantial evidence in light of the whole record. See id.

The "whole record" test does not permit the reviewing court to substitute its judgment for the agency's as between two reasonably conflicting views; however, it does require the court to take into account both the evidence justifying the agency's decision and the contradictory evidence from which a different result could be reached.... "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Watson v. N.C. Real Estate Comm., 87 N.C.App. 637, 639, 362 S.E.2d 294, 296 (1987) (quoting Lackey v. N.C. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982)). Ultimately, the whole record test is a means to determine if the administrative decision had a rational basis in the evidence. Henderson, 91 N.C.App. at 531, 372 S.E.2d at 890.

The Commission made three conclusions of law that form the basis of its decision to uphold petitioner's dismissal. First, the Commission adopted the A.L.J.'s first conclusion of law, which stated:

The respondent had just cause to dismiss the petitioner for personal misconduct in the form of insubordination on April 7, 1986 when the petitioner willfully refused to accept a reasonable work assignment, to examine certain consumer finance companies in Yadkinville, Wilkesboro and Elkin.

The facts surrounding Floyd's assignment for the week of 7 April and his unsuccessful efforts to convince his superiors to change that assignment are uncontested. Floyd argues, however, that his conduct in not carrying out the assigned work was not a willful failure to comply with known policies and procedures, Kandler, 80 N.C.App. at 451, 342 S.E.2d at 914, for two reasons. He contends first that Currie, the Commissioner of Banks, gave him the option of proceeding with the assignment or taking sick leave and second, that he had been allowed in the past to change his assignment when he had personal or transportation problems.

Were this question before us for de novo review, we might find, in light of past department practice and Currie's...