Price v. State
| Decision Date | 02 December 2014 |
| Docket Number | No. COA14–375.,COA14–375. |
| Citation | 767 S.E.2d 705 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | John PRICE, Petitioner, v. STATE of North Carolina OFFICE OF the STATE AUDITOR, Respondent. |
Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman, for respondent-appellant.
The Law Offices of Michael C. Byrne, by Michael C. Byrne, for petitioner-appellee.
Where the trial court properly applied and engaged in de novoreview in adopting the decision of the administrative law judge, we affirm the decision of the trial court.
On 20 January 2011, petitioner John Price filed a petition for a contested case hearing in the Office of Administrative Hearings alleging that he had been discharged by respondent, State of North Carolina Office of the State Auditor, from his job without just cause. Hearings were held on 14–18 November 2011, and 15–16 February 2012, Administrative Law Judge Melissa Owens Lassiter (“ALJ”) presiding. The evidence presented at the hearings tended to show the following.
Petitioner was a career employee of respondent, having been initially hired by respondent in 1989. During his time with respondent, petitioner was promoted several times to positions including Assistant State Auditor I, II, and III, and Assistant State Auditor Supervisor. Petitioner also worked for a number of departments within respondent, including the Financial, Fraud, Performance Audit, and Non–Governmental divisions.
In September 2009, petitioner was reassigned from the Non–Governmental to the Performance division to fill a non-supervisory role. Prior to this reassignment, petitioner had received no disciplinary actions in twenty years with respondent. When petitioner underwent a performance evaluation in December 2009, his supervisor, Sarah Dozier, gave him a “Below Expectations” rating on every criterion.
On 15 January 2010, petitioner was assigned a new supervisor, Bill Styres, who, in an interim performance evaluation on 10 February, rated petitioner's performance as not meeting expectations. Petitioner was given a development plan to help him improve his job performance and advised that he would undergo another performance evaluation around 30 April.
On 8 June, petitioner underwent his yearly performance review in which he was rated as either “Below Expectations” or “Unsatisfactory” on every criterion. Petitioner was assigned another development plan and advised that he would be reevaluated on 31 August.
On 15 July, petitioner was assigned a third supervisor, Carla Jacobs, to help him improve his job performance. On 2 August, Jacobs issued a written warning to petitioner regarding his failure to correct deficiencies in his work performance.
On 8 September, petitioner received a new performance evaluation in which he was given “Unsatisfactory” ratings on every criterion. A second written warning was issued to petitioner on 14 September. A pre-disciplinary conference was held with petitioner on 15 October, and on 19 October, petitioner was dismissed for unsatisfactory job performance.
On 8 September, petitioner received a new performance evaluation in which he was given “Unsatisfactory” ratings on every criterion. A second written warning was issued to petitioner on 14 September. A pre-disciplinary conference was held with petitioner on 15 October, and on 19 October, petitioner was dismissed for unsatisfactory job performance.
On 26 July 2012, the ALJ entered a decision reversing respondent's termination of petitioner's employment and ordering petitioner to be reinstated with back pay and attorneys' fees. In its order, the ALJ made the following pertinent findings of fact:
25. In May of 2009, Respondent transferred Petitioner to work in the Performance Audit Division. At that time, Petitioner had more than 20 years of service with Respondent, and had received no prior disciplinary actions.
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28. On May 28, 2009, Petitioner's supervisor in the Non–Governmental Division conducted an annual evaluation of Petitioner's job performance for the 2008–2009 year, and gave Petitioner an overall “Meets Expectation” rating. (Resp.Exh.12)
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31. During Petitioner's prior 13 years in the Performance Audit Division, he received annual performance evaluations and interim performance evaluations. However, between May 2009 until his termination in October 2010, Petitioner received approximately five or six written performance evaluations. (T. pp. 1015, 1016) Petitioner received written evaluations from a supervisor in February 2010, May 2010, September 2010, and October 2010. (T. pp. 1015–16)
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37. Styres acknowledged at [the] hearing that Respondent's annual performance management cycle begins in May of each year.
38. Yet, on February 10, 2010, Styres issued Petitioner another performance evaluation; the performance evaluation that Sarah Dozier had completed in December 2009, but never [gave] to Petitioner. (T. p. 69) Styres reviewed that evaluation with Petitioner, wherein Petitioner's performance was rated at “Below Expectations” in the areas of determine/design audit procedures, gather/analyze/evaluate evidence, communication skills, leadership/influence, integrity/objectivity, and technical/professional knowledge. Styres' concerns with Petitioner's work included not providing work in a timely manner, not providing feedback or helping others, and the lack of work product being completed.
39. At [the] hearing, Styres explained that Petitioner had charged about 700 hours to the service contract audit, and only produced two work papers. (T. p. 123) However, in the Dozier evaluation of December 2009, the evaluation merely stated, “John fails to complete work in a timely manner.” (Resp.Exh.2, p. 69) The evaluation also made general statements, such as John “has not demonstrated an ability to determine or design audit procedures,” or [”]John does not provide direction or training to other team members.” No further specificity is provided in that evaluation regarding how Petitioner failed to perform these expectations. (Resp .Exh. 2, p. 66)
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48. A review of the June 2010 evaluation showed that Styres “cut and pasted” seven incidents, written by Dozier in her December 2009 evaluation, into his June 2010 annual evaluation of Petitioner, even though Styres had no personal knowledge of those incidents as he was not supervising Petitioner in the fall of 20[09]. Styres used the same “result comment” to support “unsatisfactory” and “below expectations” ratings of Petitioner's work on different key responsibilities. For example, Styres wrote that Petitioner was not completing work in a timely manner and/or exceeded the time budget under both key responsibilities of “Planning” and “Auditing: Performing Audit Procedures.” (T. p. 277; Resp. Exh. 3, pp. 44–45)
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51. In mid-July 2010, Styres asked Carla Jacobs to review some of Petitioner's work. On July 15, 2010, Styres assigned Ms. Jacobs to be Petitioner's supervisor. (Pet.Exh.1, 16) At that time, Ms. Jacobs had been employed with Respondent for 1 year and 8 months, as Respondent had hired Jacobs in November 2008 as an Assistant State Auditor Advanced, or ASA3. Jacobs had never, in her employment with Respondent, performed an audit by herself as she had been assigned to work only on large scope and in-scale audits.
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53. In January 2010, Ms. Jacobs had started working in a “work against position for supervisor.” When Ms. Jacobs began supervising Petitioner, Jacobs had not officially been promoted to supervisor. Kenneth Barnette, the Performance Division Manager, did not recommend Jacobs to be promoted to supervisor until September 13, 2010. Jacobs' official promotion to supervisor occurred on October 13, 2010, six days before Petitioner was dismissed from employment.
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55. Between January and October of 2010, Ms. Jacobs issued two written warnings to M.D., one of the employees she supervised in the DOT audit. After discussing M.D.'s performance evaluations with Bill Styres and Ken Barnette, “it was decided that disciplinary action was needed.” (T. p. 629) Jacobs acknowledged at [the] hearing that she did not independently issue written warnings to M.D., but issued those warnings to M.D. with the concurrence of Styres and Barnette. (T. p. 629)
56. As of the fall of 2010, 2 o[f] the 3 employees whom Jacobs supervised were terminated from employment with Respondent.
57. On August 2, 2010, Styres issued a written warning to Petitioner for unsatisfactory job performance, even though Styres had stated in the June 2010 development plan that “John will be reevaluated as of August 31, 2010.” (Resp. Exh. 3, p. 59; T. p. 288)
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61. Jacobs and Petitioner had difficult relations from the start of her supervision in mid-July 2010. Jacobs kept almost daily, detailed notes on Petitioner's performance, totaling approximately 13 pages. (Resp.Exh.9) At [the] hearing, Jacobs noted that from August to October 2010, she could not point out one “non-negative” comment she made about Petitioner.
62. On September 8, 2010, Jacobs issued another performance evaluation to Petitioner covering a work period from August 2, 2010 to September 3, 2010. (Resp.Ex.5)
a. In this review, Jacobs gave Petitioner “Unsatisfactory” ratings, the lowest rating possible, because Petitioner was not able to identify internal controls and differentiate between processes and control activities. Jacobs issued a development plan, giving Petitioner 30 days to improve his performance. In this evaluation, significant verbiage was “lifted” or excerpted directly from previous performance reviews conducted by Styres and Dozier.
b. In this evaluation, Jacobs criticized Petitioner because (1) he “brought his daughter to the office due to school transportation issues,” and failed to notify her in advance, and (2) for failing to follow leave procedures when Petitioner left work early to take his mother to the emergency room.
c. There was no evidence at [the] hearing that Respondent considered Petitioner's response to this evaluation. Petitioner explained that his...
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