Souther v. NEW RIVER AREA MENTAL HLTH. DEV.
Decision Date | 06 February 2001 |
Docket Number | No. COA99-1092.,COA99-1092. |
Citation | 142 NC App. 1,541 S.E.2d 750 |
Parties | Betty J. SOUTHER, Petitioner, v. NEW RIVER AREA MENTAL HEALTH DEVELOPMENT DISABILITIES AND SUBSTANCE ABUSE PROGRAM, Respondent. |
Court | North Carolina Court of Appeals |
Legal Services of the Blue Ridge, by Charlotte Gail Blake, Boone, for petitioner-appellee.
McElwee Firm, PLLC, by Elizabeth K. Mahan and William H. McElwee, III, North Wilkesboro, for respondent-appellant.
Respondent New River Area Mental Health appeals from the trial court's order reversing its termination of petitioner Betty J. Souther. We affirm.
New River employed Souther in September 1988 as an habilitation assistant for the Community Alternatives Program For People With Mental Retardation. The Community Alternatives Program allows disabled individuals to avoid institutionalization by receiving care at home. Under the program, habilitation assistants provide personal and respite care to the disabled participants. The assistants typically serve one client at a time. During Souther's employment with New River, Randy Johnson was her immediate supervisor; Suzanne Tate was the Director of Developmental Disabilities and Johnson's supervisor; and, Dorothy Beamon was the Area Director and supervisor of New River's mental health programs.
In 1988, New River assigned Souther to care for Robinette Jenkins, the daughter of Lester and Virginia Jenkins. Robinette was severely disabled and required constant assistance with personal maintenance. In late June or early July 1993, Souther informed Lester Jenkins that she was having trouble with her neighbors; so, he allowed her to move her trailer onto his lot. Later in 1993, Souther complained to her immediate supervisor, Johnson, that Mr. Jenkins was sexually harassing her and expressed concerns about working in the Jenkins' home. Upon receiving these complaints, New River allowed Souther to take vacation time and to care for Robinette in her own home; at the same time, New River undertook an investigation of her complaints. New River's investigation concluded that Souther's allegations were without merit. Accordingly, at a meeting on 20 September 1993, Beamon asked Souther to resume assisting Robinette in the Jenkins' home. Souther, however, refused. Thereafter, New River terminated her employment.
Souther appealed to the Office of Administrative Hearings. After conducting an evidentiary hearing, the assigned Administrative Law Judge entered a Recommended Decision to affirm the dismissal for just cause. Souther appealed to the State Personnel Commission, which conducted a whole record review and adopted the recommended findings and conclusions of the Administrative Law Judge and recommended that New River "find and conclude that it had just cause to terminate Souther for her unacceptable personal conduct due to her refusal to obey a reasonable work [order]." Thereafter, Souther brought a Petition for Judicial Review before the Superior Court in Wilkes County. The trial court granted the petition and, "after hearing the arguments of counsel and reviewing the official record, including the transcript of the administrative hearing, and the memoranda submitted by counsel," found that New River's decision to terminate Souther was "arbitrary and capricious and not supported by substantial evidence in light of the whole record." From the trial court's order reversing Souther's termination, New River appeals.
Our review of a superior court order regarding an agency decision consists of: "`(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.'" ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dep't of Human Resources, 114 N.C.App. 668, 675, 443 S.E.2d 114, 118-19 (1994)).
The proper standard for the superior court to apply depends upon the issues presented on appeal. 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 error of law, the reviewing court must examine the record de novo, as though the issue had not yet been considered by the agency.
Avant v. Sandhills Center for Mental Health, 132 N.C.App. 542, 546, 513 S.E.2d 79, 82 (1999) (internal citations omitted).
Both parties contend the superior court, in reviewing the Administrative Law Judge's decision, appropriately employed the "whole record" standard. However, this Court has held that a superior court's determination of whether a termination was for "just cause" based upon personal misconduct is a question of law, and that questions of law are to be reviewed de novo. See Amanini, 114 N.C.App. at 677, 678,
443 S.E.2d at 119, 120. A de novo review "requires a court to consider a question anew, as if not considered or decided by the agency." Id. at 674, 443 S.E.2d at 118.
A state employee may be dismissed only for "just cause." N.C. Gen.Stat. § 126-35 (1995). An employee challenging his or her termination for just cause has the burden of proving that the agency's decision was improper. As our Supreme Court has said:
[A]n employee terminated pursuant to the "just cause" provision of N.C.G.S. § 126-35 should bear the burden of proof in an action contesting the validity of that termination. Petitioner, the terminated employee, is the party attempting to alter the status quo. The burden should appropriately rest upon the employee who brings the action, even if the proof of that position requires the demonstration of the absence of certain events or causes. Neither party in a "just cause" termination dispute has peculiar knowledge not available to the opposing party. A terminated employee may readily utilize the procedures outlined in chapter 126 and section 1A-1 of the North Carolina General Statutes, as well as title 26 of the North Carolina Administrative Code, to obtain any and all necessary information to establish and advocate his or her position.
Peace v. Employment Sec. Comm'n of North Carolina, 349 N.C. 315, 328, 507 S.E.2d 272, 281-82 (1998). Just cause may result either from unacceptable job performance or unacceptable personal conduct. See Amanini at 679, 443 S.E.2d at 120. The difference is important because an employee must receive certain warnings before being terminated for unsatisfactory job performance, while no warnings are required for termination based on personal misconduct. See id. at 679, 443 S.E.2d at 121. However, "[t]he categories are not mutually exclusive, as certain actions by employees may fall into both categories, depending upon the facts of each case." N.C. Admin. Code tit. 25, r. 1J.0604 (June 2000).
Although New River never specifically stated the grounds for Souther's dismissal, Beamon's letter terminating petitioner read in pertinent part:
Thus, New River's finding of just cause was based on (1) petitioner's refusal to provide service to her client, and (2) petitioner's failure to attend the 15 September 1993 meeting with her supervisors.
New River contends that these reasons for dismissal constitute insubordination. "Insubordination" is defined as "the refusal to accept a reasonable and proper assignment from an authorized supervisor." Mendenhall, 119 N.C.App. at 651,459 S.E.2d at 824 (citation omitted). Insubordination has been defined more broadly as ...
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