Wetherington v. N.C. Dep't of Crime Control

• Decision Date: 17 December 2013
• Docket Number: No. COA13–405.,COA13–405.
• Citation: 752 S.E.2d 511
• Court: North Carolina Court of Appeals
• Parties: Thomas C. WETHERINGTON, Petitioner, v. N.C. DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY; North Carolina Highway Patrol; Respondent.

752 S.E.2d 511

Thomas C. WETHERINGTON, Petitioner,

v.N.C. DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY; North Carolina Highway Patrol; Respondent.

No. COA13–405.

Court of Appeals of North Carolina.

Dec. 17, 2013.

Appeal by Petitioner and Respondent from order entered 14 December 2012 by Judge Howard E. Manning, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 22 October 2013.

The McGuinness Law Firm, Elizabethtown, by J. Michael McGuinness, for Petitioner.

Attorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for Respondent.

Richard Hattendorf for the Fraternal Order of Police, amicus curiae.

Richard C. Hendrix for the North Carolina Troopers Association, amicus curiae.

McGEE, Judge.

Thomas C. Wetherington (“Petitioner”) was employed as a trooper with the North Carolina State Highway Patrol (“Respondent”) on 29 March 2009. A complaint was filed against Petitioner on 21 May 2009 with the Internal Affairs unit of Respondent, alleging that Petitioner had violated Respondent's Truthfulness policy. Respondent dismissed Petitioner on 4 August 2009 for violating the Truthfulness policy.

Petitioner filed a petition for a contested case hearing in the Office of Administrative Hearings on 23 October 2009, challenging his dismissal. The administrative law judge (the “ALJ”), following a hearing, concluded that the “decision to dismiss Petitioner for violations of Respondent's truthfulness policy” was supported by the evidence. The State Personnel Commission (the “SPC”), over a dissent, entered a final decision and order adopting the ALJ's decision on 2 February 2011. Petitioner filed a “Petition for Judicial Review and Notice of Appeal” on 25 February 2011 from the final decision of the SPC in Superior Court, Wake County.

The superior court reversed the final decision of the SPC on 14 December 2012. The superior court concluded that Petitioner's “unacceptable personal conduct did not rise to the level to constitute just cause for dismissal as a matter of law.” The superior court also concluded, as a separate ground, that the decision to dismiss Petitioner was arbitrary and capricious.

Petitioner and Respondent appeal.

I. Respondent's Appeal

Respondent first argues that the “facts and circumstances in this case amount to just cause for the dismissal of Petitioner.”

A. Standard of Review

When this Court reviews appeals from superior court reversing the decision of an administrative agency, “our scope of review is twofold, and is limited to determining: (1) whether the superior court applied the appropriate standard of review and, if so, (2) whether the superior court properly applied this standard.” Mayo v. N.C. State Univ., 168 N.C.App. 503, 507, 608 S.E.2d 116, 120,aff'd per curiam,360 N.C. 52, 619 S.E.2d 502 (2005).

B. Analysis

The superior court may reverse or modify the agency'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 admissible under G.S. 150B–29(a), 150B–30, or 150B–31 in view of the entire record as submitted; or

(6) Arbitrary, capricious, or an abuse of discretion.

N.C. Gen.Stat. § 150B–51(b) (2009).¹

In the present case, the superior court concluded that: (1) Petitioner's conduct “did not rise to the level to constitute just cause for dismissal as a matter of law” and (2) the decision to dismiss Petitioner was arbitrary and capricious.

The superior court's first conclusion, on just cause for dismissal, refers to an error of law in the SPC's decision. N.C.G.S. § 150B–51(b)(4) (allowing the superior court to reverse an agency's decision on the basis of an error of law). Where “the gravamen of an assigned error is that the agency violated” N.C.G.S. § 150B–51(b)(4), the superior court “engages in de novo review.” N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 659, 599 S.E.2d 888, 895 (2004). Under the de novo standard of review, the superior court “consider[s] the matter anew[ ] and freely substitutes its own judgment for the agency's.” Id. at 660, 599 S.E.2d at 895 (alterations in original).

In the present case, the superior court stated that whether Petitioner's “conduct constitutes just cause for the discipline taken is a question of law and is reviewed de novo.” As to the first prong of our review in Mayo, the superior court applied the appropriate de novo standard of review. We proceed to the second prong in Mayo, whether the superior court properly applied this standard.

“Determining whether a public employer had just cause to discipline its employee requires two separate inquiries: first, whether the employee engaged in the conduct the employer alleges, and second, whether the conduct constitutes just cause” for the discipline imposed. Carroll, 358 N.C. at 665, 599 S.E.2d at 898 (internal quotation marks omitted). “Just cause, like justice itself, is not susceptible of precise definition. It is a flexible concept, embodying notions of equity and fairness, that can only be determined upon an examination of the facts and circumstances of each individual case.” Id. at 669, 599 S.E.2d at 900 (internal citations and quotation marks omitted).

This Court discussed Carroll in Warren v. N.C. Dep't of Crime Control, ––– N.C.App. ––––, 726 S.E.2d 920,disc. review denied,366 N.C. 408, 735 S.E.2d 175 (2012). We concluded in Warren “that the best way to accommodate the Supreme Court's flexibility and fairness requirements for just cause is to balance the equities after the unacceptable personal conduct analysis.” Id. at ––––, 726 S.E.2d at 925.

Respondent contends that, “based on the balance of equity and fairness, and the facts and circumstances of this case, including, but not limited to, the importance of truthfulness in the [Highway] Patrol, the detailed and prolonged nature of the untruth and Petitioner's pattern and practice of being untruthful,” there was just cause for dismissal of Petitioner.

i. Whether Petitioner Engaged in the Conduct Respondent Alleges

The facts found by the ALJ and adopted by the SPC that are relevant to this issue are below: ²

5. On March 29, 2009, Petitioner, while on duty, observed a pickup truck pulling a boat and made a traffic stop of that truck on U.S. 70 at approximately 10:00 pm. During that traffic stop, Petitioner discovered two loaded handguns in the truck and smelled the odor of alcohol coming from the interior of the truck. The two male occupants of the truck were cooperative and not belligerent.

Petitioner took possession of the handguns. At the conclusion of that traffic stop, Petitioner proceeded to a stopped car that had pulled off to the side of the road a short distance in front of the truck and boat trailer.

6. Petitioner testified that he first noticed his [trooper] hat missing during his approach to the car parked in front of the truck. Petitioner heard a crunch noise in the roadway and saw a burgundy eighteen-wheeler drive by.

7. Petitioner testified that after the conclusion [of] his investigation of the stopped car, he looked for his hat. Petitioner found the gold acorns from his hat in the right hand lane near his patrol vehicle. The acorns were somewhat flattened.

.... 9. After searching for, but not locating his hat, Petitioner contacted Sergeant Oglesby, his immediate supervisor, and told him that his hat blew off of his head and that he could not find it.

....

11. Trooper Rink met Petitioner on the side of the road of U.S. 70. Trooper Rink asked Petitioner when he last saw his hat. Petitioner said he did not know. Petitioner said that he was going down the road ... and was putting something in his seat when he realized he did not have his hat. Petitioner then indicated that he turned around and went back to the scene of the traffic stops and that is when he found the acorns from his hat. Petitioner was very upset and Trooper Rink told Petitioner that everybody loses stuff and that if Petitioner did not know what happened to his hat, then he should just tell his Sergeants that he didn't know what happened to it. Petitioner replied that it was a little late for that because he already had told his Sergeant that a truck came by and blew it off of his head.

....

13. The testimony of Trooper Rink provides substantial evidence that Petitioner did not know what happened to his hat, was untruthful to Sergeant Oglesby when he said it blew off of his head, and that Petitioner's untruthfulness was willful.

....

15. The next day, March 30, 2009, Sergeant Oglesby and several other members of the Patrol looked for Petitioner's hat.

16. Sergeant Oglesby had a detailed conversation with Petitioner on the side of the road regarding how the hat was lost. During the conversation, Petitioner remained consistent with his first statement to Sergeant Oglesby from the night of March 29, 2009 as he explained to Sergeant Oglesby that a gust of wind blew his hat off of his head. Petitioner continued stating that the wind was blowing from the southeast to the northwest. Petitioner said he turned back towards the direction of the roadway and saw a burgundy eighteen wheeler coming down the road so he could not run out in the roadway and retrieve his hat. Petitioner then heard a crunch and did not see his hat anymore.

....

18. Petitioner was not truthful to Sergeant Oglesby on March 30, 2009, when he explained how he lost his hat.

....

20. Petitioner testified that, approximately three to four days after the loss of the hat, he suddenly realized that the hat did not blow off of his head, but that he had placed the hat on the light bar of his Patrol vehicle and it blew off of the light bar. Petitioner never informed any supervisors of this sudden realization.

21. Approximately three weeks...