Pittman v. DHHS

• Decision Date: 31 December 2002
• Docket Number: No. COA01-1285.,COA01-1285.
• Citation: 573 S.E.2d 628
• Court: North Carolina Court of Appeals
• Parties: Donna PITTMAN, Petitioner, v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.

573 S.E.2d 628

Donna PITTMAN, Petitioner, v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.

No. COA01-1285.

Court of Appeals of North Carolina.

December 31, 2002.

Mast, Schulz, Mast, Mills & Stem, P.A., by David F. Mills, Smithfield, for petitioner-appellant.

Attorney General Roy Cooper, by Assistant Attorney General Thomas M. Woodward, for the State.

BIGGS, Judge.

Petitioner (Donna Pittman) appeals from an order of the trial court affirming the State Personnel Commission's decision to uphold her termination by respondent, North Carolina Department of Health and Human Services (hereinafter referred to as NCDHHS). We affirm the trial court.

Petitioner was employed by the North Carolina Special Care Center (NCSCC) from 1994 to 1998, as a Health Care Technician (HCT). The NCSCC, operated by respondent, is a 208 bed long-term care nursing facility for residents suffering from mental illness, Alzheimer's disease, senile dementia, and other psychological disorders, as well as unrelated medical or physical problems. NCSCC accepts patients who cannot be cared for elsewhere; their residents typically are unable to bathe, feed, or dress themselves, and cannot make decisions on their own. As an HCT, petitioner was responsible for the feeding, bathing, and general care of these residents.

In September, 1998, a new HCT expressed concerns about "short-cuts" taken by some of the other HCT's on the sixth floor, where petitioner worked. Respondent's supervisory staff observed that the sixth floor distribution of meals took far less time than on other halls, and undertook an investigation. They interviewed HCTs, observed the care and feeding of residents on the sixth floor, and inspected the charts and records kept for sixth floor residents. During this investigation, several HCTs reported having seen petitioner discard the residents' evening snacks without offering them to the residents, while other reports indicated that petitioner had put a resident to bed without completing his bathing and shaving; had given another resident both his meal and also the meal intended for his roommate; and had allowed difficult residents to eat only sweets for supper. In early November, 1998, the assistant director of nursing met with petitioner to discuss respondent's concerns. Petitioner denied throwing out residents' food, distributing meals improperly, or failing to bathe patients in her care. She offered explanations for some of the alleged incidents, but the residents' charts were inconsistent with petitioner's explanations.

On 4 December 1998, NCSCC held a pre-dismissal conference with petitioner, and discussed with her the allegations of the other HCTs. Petitioner admitted substituting foods on occasion, but denied ever throwing out food or drink, except on rare occasions when an item had spoiled. She was dismissed the same day.

Petitioner appealed her dismissal, and was granted a hearing before a NCDHHS officer in February, 1999. The hearing officer concurred with the decision to terminate her. Petitioner was then granted a contested case hearing, held before an Administrative Law Judge (ALJ) on 10 August 1999. Although the record suggests that the ALJ filed a decision favorable to petitioner on 15 August 1999, the decision was not made a part of the record. Respondent appealed, and the matter was heard by the State Personnel Commission (SPC) on 27 April 1999. The SPC issued a decision on 16 May 2000, reversing the ALJ's recommendation, and reinstating petitioner's dismissal. Petitioner sought judicial review in superior court, and on 13 July 2001, the court issued an order affirming the SPC's decision. Petitioner appeals from this order.

Standard of Review

Petitioner's appeal from the final decision of the SPC to the trial court is governed by N.C.G.S. § 150B-51(b) (2001). The statute authorizes the court to reverse or modify the agency's decision, or adopt the administrative law judge's decision if the substantial rights of the petitioners may 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, capricious, or an abuse of discretion.

On appeal, this Court must determine (1) whether the trial court applied the appropriate standard of review and, if so, (2) whether the court did so properly. Amanini v. N.C. Dep't of Human Resources, 114 N.C.App. 668, 675, 443 S.E.2d 114, 118-19 (1994). The issues presented dictate the appropriate standard of review to be applied. "Where the petitioner alleges that the agency decision was either unsupported by the evidence, or arbitrary and capricious, the superior 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 an error of law, the reviewing court must examine the record de novo, as though the issue had not yet been considered by the agency." Id.

In applying the whole record test, "[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Comr. of Insurance v. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977). "If substantial evidence supports an agency's decision after the entire record has been reviewed, the decision must be upheld." Blalock v. N.C. Dep't of Health and Human Servs., 143 N.C.App. 470, 473-74, 546 S.E.2d 177, 181 (2001).

I.

Petitioner argues first that the trial court erred by concluding that the dismissal letter of 8 December 1998(1) sufficiently provided petitioner with notice of the reasons for her dismissal, and (2) did not violate either petitioner's right to due process guaranteed by the U.S. Constitution, or the requirements of N.C.G.S. § 126-35. We disagree with both contentions.

Petitioner contends that the dismissal letter she received, informing her of the NCSCC's decision to terminate petitioner for "violation of our Abuse, Neglect, and Exploitation Policy," was constitutionally deficient. The trial court applied de novo review to this question, which we conclude is the correct standard of review. Owen v. UNC-G Physical Plant, 121 N.C.App. 682, 686, 468 S.E.2d 813, 816 (1996) ("When reviewing an agency decision for constitutional or procedural errors, this Court applies de novo review.").

We next consider whether the trial court correctly applied de novo review to the issues concerning the dismissal letter. Petitioner is a career State employee. "The North Carolina General Assembly created, by enactment of the State Personnel Act, a constitutionally protected property interest in the continued employment of career State employees." Peace v. Employment Sec. Com'n of North Carolina, 349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998). Petitioner's right to due process of law, "guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 19, 23, and 27 of the North Carolina Constitution[,]" State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), applies to employment termination procedures. Leiphart v. North Carolina School of the Arts, 80 N.C.App. 339, 348-349, 342 S.E.2d 914, 921, cert. denied, 349 S.E.2d 862, 318 N.C. 507 (1986).

Although "the exact nature and mechanism of the required procedure will vary based upon the unique circumstances surrounding the controversy," "[t]he fundamental premise of procedural due process protection is notice and the opportunity to be heard." Peace v. Employment Sec. Com'n of North Carolina, 349 N.C. 315, 322, 507 S.E.2d 272, 278 (1998) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 547-548, 105 S.Ct. 1487, 1496-97, 84 L.Ed.2d 494, 506-507 (1985)). An employee's property interest in his or her employment "is sufficiently protected by `a pretermination opportunity to respond, coupled with post-termination administrative procedures[,]' and `the minimal protection of fundamental fairness established by federal due process'" is satisfied "if the employee receives `oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.'" Owen v. UNC-G Physical Plant, 121 N.C.App. 682, 686, 468 S.E.2d 813, 816 (1996) (quoting Loudermill, id.).

The dismissal letter which petitioner received is just one feature of a statutory scheme, outlined in N.C.G.S. § Chapter 126, which provides an employee with notice and opportunity to be heard prior to termination, as well as the opportunity to appeal a termination decision. The North Carolina Supreme Court previously has held that the statutory procedure "fully comports with the constitutional procedural due process requirements mandated by the Fourteenth Amendment, and no additional safeguards are needed to avoid erroneous deprivation." Peace at 327, 507 S.E.2d at 280.

Nonetheless, petitioner contends that this letter is "unconstitutionally vague" because it "contains no details as to time, place, events, or people involved." We disagree. The letter included the following:

... [HCTs] have witnessed you pouring nourishments out prior to offering them to the Residents. Irene Moore, Julian Mack and Geishala Norfleet ... have seen you pour [bedtime] nourishments down the sink in the kitchen and the Resident's room. Ms Norfleet ... [saw] you open nourishments and pour half of it out and then throw the remainder in the trash without offering them to the Resident. Ms. Moore has seen you pour nourishments down the kitchen sink and down sinks in the Resident's rooms prior to offering them[, and] indicated that ... the self-feeders were the [only] ones that received the snack.

...