Ann JOYCE
v.
WINSTON-SALEM STATE UNIVERSITY.
No. 8810SC74.
Court of Appeals of North Carolina.
August 16, 1988.*868 Lawrence J. Fine, Winston-Salem, for petitioner-appellee.
Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Kaye R. Webb, Raleigh, for respondent-appellant.
WELLS, Judge.
The question is whether the trial court properly found that the Commission's decision to deny petitioner her promotion was (1) arbitrary and capricious and (2) unsupported by substantial evidence in view of the whole record. After careful scrutiny of the Record and consideration of the arguments of the parties, we conclude, for reasons to follow, that the trial court's Order must be affirmed.
At the time this case was commenced, N.C.Gen.Stat. § 150A-51 (now codified as G.S. § 150B-51) provided the scope of review of decisions of administrative agencies. In pertinent part, the statute authorized a reviewing court to modify or reverse an agency's decision if
the substantial rights of the petitioners may have been prejudiced because the agency findings, inferences, conclusions, or decisions are:
. . . . .
(5) Unsupported by substantial evidence... in view of the entire record as submitted; or
(6) Arbitrary or capricious.
N.C.Gen.Stat. Ch. 150A (April 1983 Replacement). Our Supreme Court agrees that an agency decision is arbitrary and capricious if it clearly evinces a lack of fair and careful consideration or want of impartial, reasoned decisionmaking. See Comr. of Insurance v. Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980). In the present case our review confirms that the Commission's adopted Opinion reflects a failure to consider that respondent WSSU took no account of the Commission's own promotion policy in making its decision not to promote Ms. Joyce. Pursuant to N.C.Gen. Stat. § 126-4(6) the State Personnel Commission has promulgated, in pertinent part, the following promotion policy: "Promotion is a change in status upward ... resulting from assignment to a position of higher level. When it is practical and feasible, a vacancy should be filled from among the eligible permanent employees. Selection should be based upon demonstrated capacity, quality, and length of service." N.C. Admin.Code tit. 25, r. 1D.0301 (Oct. 1987). *869 Thus, it is the established policy of the Commission that vacancies should be filled from within whenever practicable; and the Commission's failure in its review of petitioner's appeal to make any finding relative to this established policy evinces a lack of fair and careful consideration.
Furthermore, our review confirms that the Commission made no finding relevant to evidence that Ms. Gwyn filed her application for the August 1983 opening a month before notice of it was actually posted, or Ms. Gwyn's testimony that Ms. Williams effectively offered her the job before it was posted, or that Ms. Gwyn was hired even though she did not meet the stated qualifications for the position. This was critical evidence in view of the fact, as indicated above, that the two principal issues in petitioner's appeal to the Commission were whether respondent had abused its discretion in not promoting petitioner and whether the respondent had followed proper procedure in its hiring decision. In view of the stated issues involved, the Commission's failure to make findings with respect to such telling evidence of abuse of discretion and improper procedure clearly betrays a want of careful and impartial decisionmaking.
Our review of the Record also confirms the trial court's determination that the Commission's findings of fact and decision were not supported by substantial evidence in view of the entire Record. In reviewing an administrative decision to determine if it is supported by substantial evidence, the court must apply the "whole record" test. Leiphart v. N.C. School of the Arts, 80 N.C.App. 339, 342 S.E.2d 914, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). Under the "whole record" test the reviewing court must consider not only the evidence that supports the agency's decision, but also contradictory evidence or evidence from which conflicting inferences might be drawn. Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977). If an agency decision is not supported by substantial evidence in view of the entire record as submitted, it may be reversed. General Motors Corp. v. Kinlaw, 78 N.C.App. 521, 338 S.E.2d 114 (1985). Substantial 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, 231 S.E.2d 882 (1977); and substantial evidence "is more than a scintilla or a permissible inference." Lackey v. Dept. of Human Resources, 306 N.C. 231, 293 S.E.2d 171 (1982).
In the present case we find that essentially the only evidence relied on by the Commission to decide against the petitioner was the unsubstantiated opinion of Ms. Williams that the petitioner was uncooperative and difficult to work with. However, the Record contains on this point much evidence to the contrary. For example, Ms. Beverly Wilson, a secretary in the Personnel Office, testified that she had never observed petitioner express an unwillingness to assist Ms. Williams. And Ms. Gwyn testified that she had never noticed Ms. Joyce being unwilling to assist Ms. Williams or anyone else.
In its eleventh finding of fact the Commission includes excerpts from a negative pre-evaluation letter prepared by Ms. Williams for the petitioner in May 1983. However, the Commission's Opinion ignores the official evaluation completed one month later that gave the petitioner a very positive evaluation of her work. Furthermore, prior to Ms. Williams' installment as Personnel Director, the petitioner had received outstanding evaluations from her superior, Dr. Bernell Jones. Dr. Jones testified that petitioner was dependable and professional and "stood out more so than anyone else in the office while I was working there." Esther Turman, another employee of the respondent's personnel office, also testified that Ms. Joyce was a diligent worker and was knowledgeable about the responsibilities of the office. Ms. Gwyn herself impliedly conceded that when she was hired in 1983 instead of petitioner, the petitioner was more qualified for the job because of her experience.
*870 In sum, our review of the whole Record as submitted persuades us that the Commission's conclusion that respondent did not abuse its discretion in failing to promote petitioner is not only unsupported by substantial evidence, but is overwhelmingly refuted by evidence to the contrary. We hold that the trial court correctly found that the Commission acted arbitrarily and capriciously in denying petitioner's promotion and that the Commission's findings of fact and decision were not supported by substantial evidence in view of the entire record.
Thus, the Order of the trial court must be, and is
Affirmed.
BECTON and PHILLIPS, JJ., concur.