Trotter v. NC Department of Health & Human Services

GEER, Judge,

concurring in the result only.

While the trial court stated the correct standard of review in its decision below, I cannot agree with the majority opinion that it properly applied that standard of review. Nor can I fully agree that the *663trial court properly concluded that the State Personnel Commission erred in its conclusions of law. As a result, I concur in the result only.

Dr. Trotter filed a petition for a contested case pursuant to the State Personnel Act, N.C. Gen. Stat. § 126-1 et seq. (2007), initially asserting that she was denied employment “without justifiable cause.” She subsequently filed an amended petition, alleging race, sex, and age discrimination when she was denied an interview. The administrative law judge, Sammie Chess, Jr., concluded that Dr. Trotter was not subjected to unlawful discrimination, and the State Personnel Commission adopted that decision.

In her petition for judicial review, Dr. Trotter contended: (1) the Commission erred in its statement of the issue by focusing on a denial of employment rather than the denial of an interview; (2) the Commission’s determination that Dr. Trotter was not discriminated against based on her age was not supported by substantial evidence in view of the whole record; and (3) the finding of no age discrimination was arbitrary and capricious.

The majority opinion does not address the trial court’s discussion of the first issue: the correct articulation of the issue before the Commission. The trial court concluded that the Commission’s decision was “infected by an error in applying discrimination law, mainly not examining the ultimate decision here — to deny Dr. Trotter an interview.” While I agree that this issue is properly a question of law, subject to de novo review, the trial court’s conclusion cannot be reconciled with the State Personnel Act.

N.C. Gen. Stat. § 126-34.1(b) (2007) provides:

An applicant for initial State employment may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes based upon:
(1) Alleged denial of employment in violation of G.S. 126-16.
(2) Denial of the applicant’s request for removal of allegedly inaccurate or misleading information from the personnel file as provided by G.S. 126-25.
(3) Denial of equal opportunity for employment and compensation on account of the employee’s age, sex, race, color, national origin, religion, creed, political affiliation, or handicapping condition as defined by Chapter 168A of *664the General Statutes. This subsection with respect to equal opportunity as to age shall be limited to persons who are at least 40 years of age. An applicant may not, however, file a contested case where political affiliation was the reason for the person’s nonselection for (i) an exempt policymaking position as defined in G.S. 126-5(b)(3), (ii) a chief deputy or chief administrative assistant position under G.S. 126-5(c)(4), or (iii) a confidential assistant or confidential secretary position under G.S. 126-5(c)(2).
(4) Denial of the veteran’s preference in initial State employment provided by Article 13 of this Chapter, for an eligible veteran as defined by G.S. 126-81.
(5) Denial of employment in violation of G.S. 126-14.2, where an initial determination found probable cause to believe that there has been a violation of G.S. 126-14.2.

Thus, under the statute, an applicant for state employment may bring a contested case for a denial of employment, but no provision authorizes a contested case for denial of an interview.

The Commission properly reviewed Dr. Trotter’s case as asserting a claim for discrimination in employment since otherwise, Dr. Trotter asserted no claim at all. It was the trial court — and not the Commission — that addressed the wrong issue.

With respect to Dr. Trotter’s contention that the evidence did not support the Commission’s finding of no discrimination, we apply the analytical framework set out in N.C. Dep’t of Corr. v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983). In Gibson, our Supreme Court adopted the framework first established for federal employment discrimination actions in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Our Supreme Court explained that the plaintiff carries an initial burden of establishing a prima facie case of discrimination. Gibson, 308 N.C. at 137, 301 S.E.2d at 82. The Court stressed that “[t]he burden of establishing a prima facie case of discrimination is not onerous.” Id. (emphasis added). For example, in a termination case, “a prima facie case of discrimination may be made out by showing that (1) a claimant is a member of a minority group, (2) he was qualified for the position, (3) he was discharged, and (4) the employer replaced him with a person who was not a member of a minority group.” Id., 301 S.E.2d at 82-83.

*665Once a plaintiff establishes a prima facie case, “a presumption arises that the employer unlawfully discriminated against the [plaintiff].” Id. at 138, 301 S.E.2d at 83. Nevertheless, “[t]he showing of a prima facie case is not equivalent to a finding of discrimination.” Id. Instead, it only shifts the burden to the employer “of producing evidence to rebut the presumption of discrimination raised by the prima facie case.” Id. The employer satisfies this burden “if [it] simply explains what [it] has done or produces evidence of legitimate nondiscriminatory reasons. The employer is not required to prove that its action was actually motivated by the proffered reasons . ...” Id.

When the employer articulates a nondiscriminatory reason for its action, “the plaintiff is then given the opportunity to show that the employer’s stated reasons are in fact a pretext for intentional discrimination.” Id. at 139, 301 S.E.2d at 84. Our Supreme Court stressed, however, that “[t]he trier of fact is not at liberty to review the soundness or reasonableness of an employer’s business judgment when it considers whether alleged disparate treatment is a pretext for discrimination.” Id. at 140, 301 S.E.2d at 84. With respect to this prong of McDonnell Douglas, “an employee must prove ‘both that the reason was false, and that discrimination was the real reason.’ ” N.C. Dep’t of Crime Control & Pub. Safety v. Greene, 172 N.C. App. 530, 540, 616 S.E.2d 594, 601 (2005) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 422, 113 S. Ct. 2742, 2752 (1993)). As this Court explained: “ ‘It is not enough, in other words, to disbelieve the employer; the factfinder must believe the [employee’s] explanation of intentional discrimination.’ ” Id. (quoting St. Mary’s Honor Ctr., 509 U.S. at 519, 125 L. Ed. 2d at 424, 113 S. Ct. at 2754).

With respect to the prima facie case required in an age discrimination proceeding brought under the State Personnel Act, this Court has set forth the following elements:

An employee can establish a prima facie case of age discrimination when the employee shows that (1) the employee is a member of the protected class, or over forty years old; (2) the employee applied or sought to apply for an open position with the employer; (3) the employee was qualified for the position; and (4) the employee was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. An inference of unlawful discrimination arises when an employee is replaced by a substantially younger worker.

*666Greene, 172 N.C. App. at 538, 616 S.E.2d at 600-01 (emphasis added) (internal citations and quotation marks omitted).

I agree with the majority opinion and the trial court that the State Personnel Commission erred in concluding that Dr. Trotter had not met her burden of establishing this prima facie case. The Commission overlooked Greene’s holding that the fourth element only requires a showing that a “substantially younger” applicant was hired. The evidence is undisputed that Dr. Trotter met the actual final element set forth in Greene.1

Like the majority opinion, I conclude that the trial court erred in reviewing the Commission’s decision regarding the evidence at the pretext stage. Whether or not the reason articulated by the employer is a pretext for intentional discrimination is a question for the trier of fact. The Commission found: “Petitioner is extremely well qualified for the position. However, the evidence put forth by Petitioner falls short of demonstrating that Respondent’s proffered reasons for its actions are false and a mere pretext for race, age and sex discrimination.” This finding must be reviewed under the whole record test.

I do not agree with the majority opinion’s conclusion that the trial court applied the correct standard of review. Although the trial court recited the whole record test, it proceeded to substitute the court’s own evaluation of the evidence for that of the Commission. Rather than determining whether there was substantial evidence to support the Commission’s finding, the trial court asserted that “there is ample evidence” that the reasons offered by Mr. Pritchard were false.2

*667Our Supreme Court has, however, explained:

A court applying the whole record test may not substitute its judgment for the agency’s as between two conflicting views, even though it could reasonably have reached a different result had it reviewed the matter de novo. Rather, a court must examine all the record evidence — that which detracts from the agency’s findings and conclusions as well as that which tends to support them — to determine whether there is substantial evidence to justify the agency’s decision.

Watkins v. N.C. State Bd. of Dental Exam’rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004) (internal citation omitted). In turn, “ ‘[substantial evidence’ is defined as ‘relevant evidence a reasonable mind might accept as adequate to support a conclusion.’ ” Id. (quoting N.C. Gen. Stat. § 150B-2(8b) (2003)).

Thus, it is immaterial whether “ample evidence” exists to support the trial court’s view. The question is whether the record contains evidence that a reasonable mind could accept as adequate to support the Commission’s findings. Here, the record contains evidence that would permit a reasonable mind to find that Mr. Pritchard’s reasons were true. Mr. Pritchard explained in his testimony why he found Ms. Seay’s education and experience more directly relevant to the vacant position and why he believed she would be a better fit for the job.

The trial court’s and Dr. Trotter’s arguments regarding the credibility of Mr. Pritchard’s testimony were questions for the AU and the Commission to consider. The trial court was not free to revisit those credibility determinations. As this Court stated in Greene, 172 N.C. App. at 536, 616 S.E.2d at 599 (quoting Little v. N.C. State Bd. of Dental Exam’rs, 64 N.C. App. 67, 69, 306 S.E.2d 534, 536 (1983)): “On review of an agency’s decision, a trial court ‘is prohibited from replacing the Agency’s findings of fact with its own judgment of how credible, or incredible, the testimony appears to [the trial court] to be, so long as substantial evidence of those findings exist in the whole record.’ ” See also N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 674, 599 S.E.2d 888, 904 (2004) (holding that it is the agency’s responsibility, and not the court’s, to determine the weight and sufficiency of the evidence and the credibility of the witnesses, to draw inferences from the facts, and to appraise conflicting and circumstantial evidence).

The trial court also disregarded the principle that even if the plaintiff presents evidence that the reasons offered were untrue, the *668trier of fact is still not required to conclude that the reasons were a pretext for intentional unlawful discrimination. See Miller v. Barber-Scotia College, 167 N.C. App. 165, 168, 605 S.E.2d 474, 477 (2004) (“ ‘The ultimate question is whether the employer intentionally discriminated, and proof that the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that [plaintiff’s] proffered reason ... is correct. It is not enough to disbelieve the defendants here; the fact-finder must believe [plaintiff’s] explanation of intentional race discrimination.’ ” (quoting Love-Lane v. Martin, 355 F.3d 766, 788 (4th Cir.), cert. denied, 543 U.S. 813, 160 L. Ed. 2d 18, 125 S. Ct. 49 (2004))). In other words, a trier of fact could find that the reasons were untrue, but were a pretext for some motive other than the alleged discrimination.

Dr. Trotter makes little effort to argue that the actual motive was age discrimination apart from pointing to the age disparity. Indeed, her argument primarily suggests that Mr. Pritchard was implementing his desire to promote from within. Even assuming without deciding, that such a motivation was improper under state regulations, that motive is not age discrimination. I would, therefore, conclude that under the whole record test, the Commission’s determination that Dr. Trotter was not denied employment as a result of her age is supported by substantial evidence. Since the Commission’s finding of no discrimination is supported by substantial evidence, it is not arbitrary and capricious.

While Dr. Trotter may have presented sufficient evidence to permit a finding of discrimination, hér evidence did not mandate such a finding. The trial court was not permitted to substitute its view of the evidence for the Commission’s and should have upheld the Commission’s decision. .

. Although the trial court properly concluded that Dr. Trotter established a prima facie case, I am concerned that its analysis, stating that it is “beyond question” that DHHS filled the position by hiring a “less-qualified” applicant, amounts to fact finding by the trial court. The elements of a prima facie case required only a determination that Dr. Trotter was qualified for the position. The trial court’s gratuitous assertion that Dr. Trotter was indisputably more qualified than the younger employee improperly resolved an issue of fact.

. Notably, the trial court pointed to the Commission’s conclusion that Dr. Trotter was “extremely well qualified.” The trial court then translated this finding as meaning that Dr. Trotter was “the highest qualified candidate for the position” — a translation contradicted by the remainder of the Commission’s and ALJ’s decision. The trial court was thus substituting its judgment that Dr. Trotter was “the strongest and highest qualified candidate” for the Commission’s determination that Dr. Trotter was “extremely well qualified.” The fact that someone is well qualified — even extremely well qualified — does not necessarily mean that they would be the best fit for the job, one of the criteria apparently applied by Mr. Pritchard. See Enoch v. Alamance County Dep’t of Soc. Servs., 164 N.C. App. 233, 246, 595 S.E.2d 744, 754 (2004) (rejecting argument that superior qualifications necessarily establish pretext for discriminatory motive). It was not the trial court’s role to decide who should have been hired.