IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-341
Filed: 7 March 2017
Office of Administrative Hearings, No. 15 OSP 05500
STEVEN HARRIS, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Respondent.
Appeal by respondent from final decision entered 25 January 2016 by
Administrative Law Judge Donald W. Overby in the Office of Administrative
Hearings. Heard in the Court of Appeals 3 October 2016.
Law Offices of Michael C. Byrne, by Michael C. Byrne, for petitioner.
Attorney General Roy Cooper, by Assistant Attorney General Tamika L.
Henderson, for respondent.
TYSON, Judge.
The North Carolina Department of Public Safety (“Respondent”) appeals from
a final decision of the North Carolina Office of Administrative Hearings, which
concluded as a matter of law that Respondent lacked just cause to terminate Steven
Harris (“Petitioner”) from his position as a correctional officer, and ordering his
reinstatement. We affirm the decision of the administrative law judge.
I. Background
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
Petitioner began working in February 2013 as a correctional officer at Maury
Correctional Institution (“Maury Correctional”), a state prison operated by
Respondent. Petitioner attended Respondent’s basic training program and continued
to be trained annually regarding Respondent’s policies and procedures, including its
Use of Force policy. Petitioner’s personnel record contained no disciplinary action
prior to the incident at issue.
Petitioner was working the night shift at Maury Correctional on 5 February
2015. He was working in the “Gray Unit,” which housed the prison’s segregation cell
block. Inmate Christopher Walls (“Walls”) was housed on the Gray Unit. Walls
placed his feces into a plastic bag and placed the bag into the toilet, which caused
water to leak onto the floor. Walls then poured the feces onto the floor. In response
to Walls’ actions, Sergeant Vernell Grantham ordered Ronnie Johnson (“Officer
Johnson”), Devon Alexander (“Officer Alexander”), and Dominique Sherman (“Officer
Sherman”) (together “the officers”) to remove Walls from his cell to allow a janitor to
clean up the feces and extinguish the stench.
The officers restrained Walls with handcuffs behind his back, a waist chain,
and leg cuffs. Petitioner was not tasked with transporting Walls from his cell to
another location. Officers Johnson, Alexander, and Sherman testified Petitioner
approached Walls, stated to him: “You think this is funny” and punched Walls in the
stomach. Walls was physically restrained, compliant, and under the other officers’
-2-
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
control at the time Petitioner punched Walls. The officers each testified that Walls
did not attempt to spit on Petitioner and was not offering any resistance at the time
Petitioner punched him. While the Gray Unit is equipped with several security
cameras, the incident was not captured, because it occurred in a blind spot inside the
facility. Officer Johnson became upset and informed Petitioner that he was going to
report him for punching the inmate.
Walls, the inmate, stated to Sergeant Grantham, “Y’all hit like bitches.” Less
than thirty minutes after the incident occurred, Walls was taken to and screened by
medical personnel, who observed no bruising or redness on his abdomen. At no point
in time did Walls complain that Petitioner had struck him or abused him in any way.
After the incident was reported, Respondent conducted an internal
investigation, concluded Petitioner had violated Respondent’s Use of Force policy,
and recommended corrective action. Petitioner received a written notice, dated 14
April 2015, of a pre-disciplinary conference with Administrator Dennis Daniels and
Administrative Services Manager Gary Parks, to be held the following day. The
written notice stated the conference was to discuss a recommendation for Respondent
to terminate Petitioner from his position for “unacceptable personal conduct.”
Petitioner was provided with the reasons his termination was recommended and was
given an opportunity to respond to the allegations.
-3-
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
Following the conference, Respondent’s management approved the
recommendation to terminate Petitioner’s employment. Petitioner was notified by
letter dated 17 April 2015 that his employment was terminated for unacceptable
personal conduct. Petitioner filed an appeal with the Employee Advisory Committee,
which recommended Petitioner’s dismissal be upheld. Respondent notified Petitioner
by letter dated 29 June 2015 of its final agency decision upholding Petitioner’s
dismissal.
Petitioner filed a petition for a contested case hearing with the Office of
Administrative Hearings (“OAH”). The case was heard before an Administrative Law
Judge (“the ALJ”) on 23 October 2015. Following that hearing, the ALJ issued a final
decision on 25 January 2016. The final decision contained twenty-seven findings of
fact. Utilizing the framework established by our Supreme Court in N.C. Dep’t of Env’t
& Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004) and by this Court in
Warren v. N.C. Dep’t of Crime Control, 221 N.C. App 376, 726 S.E.2d 920, disc. review
denied, 366 N.C. 408, 735 S.E.2d 175 (2012), the ALJ concluded as a matter of law
that “[t]o the extent . . . Petitioner’s conduct [punching Walls in his stomach]
constituted unacceptable personal conduct, it does not rise to the level of conduct that
would justify the severest sanction of dismissal under the totality of facts and
circumstances of this contested case” and that “[i]t is not ‘just’ to terminate
Petitioner[.]”
-4-
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
The ALJ reversed Respondent’s decision to terminate Petitioner’s employment,
ordered Petitioner to be retroactively reinstated to his position of employment, and
ordered a deduction from Petitioner’s pay, equivalent to a one-week suspension.
Respondent appeals.
II. Jurisdiction
Pursuant to N.C. Gen. Stat. § 7A-29(a) (2015), an appeal as of right lies directly
to this Court from a final decision of the Office of Administrative Hearings under G.S.
126-34.02. Respondent’s appeal is properly before us.
III. Issues
Respondent argues: (1) the ALJ erred as a matter of law by concluding
Respondent failed to establish just cause to dismiss Petitioner for unacceptable
personal conduct; (2) the ALJ erred as a matter of law by substituting his own
judgment for that of Respondent and imposing new discipline upon Petitioner; (3)
certain findings of fact and conclusion of law of the ALJ are not supported by
substantial evidence, are unsupported by the findings of fact, or are affected by an
error of law; and, (4) the ALJ erred as a matter of law by excluding evidence that was
not specifically mentioned in Respondent’s dismissal letter to Petitioner.
IV. Just Cause for Dismissal
Respondent argues the ALJ erred by concluding Respondent failed to establish
just cause for Petitioner’s dismissal. We disagree.
-5-
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
A. Statutory Scheme and Standard of Review for Determining Just Cause
In 2013, our General Assembly significantly amended and streamlined the
procedure governing state employee grievances and contested case hearings,
applicable to cases commencing on or after 21 August 2013. See generally 2013 N.C.
Sess. Laws ch. 382. Our Supreme Court explained the previous statutory framework
in detail in Carroll, 358 N.C. at 657-58, 599 S.E.2d at 893-94.
A career state employee who alleged he was dismissed, demoted, or suspended
without pay without just cause under N.C. Gen. Stat. § 126-35 was first required to
“pursue any grievance procedures established by the employing agency or
department.” Id. at 657, 599 S.E.2d at 893 (citations omitted). Once those internal
grievance procedures were exhausted, the aggrieved employee could demand a
formal, quasi-judicial evidentiary hearing before an ALJ by filing a contested case
petition with the Office of Administrative Hearings. Id. The ALJ issued a
“recommended decision,” and each party was entitled to pursue an administrative
appeal by filing exceptions and written arguments with the State Personnel
Commission (“SPC”). Id. at 657, 599 S.E.2d at 893-94.
The SPC issued its final agency decision based on its “review of the parties’
arguments and the materials preserved in the official record[.]” Id. at 658, 599 S.E.2d
at 894. The SPC was authorized “to reinstate a wrongfully terminated employee and
to order a salary adjustment or other suitable action to correct an improper
-6-
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
disciplinary action.” Id. (citation omitted). The SPC’s decision was subject to judicial
review upon the petition of either the employee or the employing agency in the
superior court. Id. (citation omitted). The superior court’s decision was subject to
further review in the appellate division. Id. (citation omitted).
As part of the 2013 amendments, the General Assembly enacted N.C. Gen.
Stat. §§ 126-34.01 and 126-34.02 into the North Carolina Human Resources Act.
Under N.C. Gen. Stat. § 126-34.01 (2015), a State employee “having a grievance
arising out of or due to the employee’s employment” must first discuss the matter
with the employee’s supervisor, and then follow a grievance procedure approved by
the North Carolina Human Resources Commission. The agency will issue a final
decision, approved by the Office of State Human Resources. Id. While a final agency
decision under the previous statutory framework included formal findings of fact and
conclusions of law, a final agency decision under the current framework simply “set[s]
forth the specific acts or omissions that are the basis of the employee’s dismissal.” 25
NCAC 01J .0613(4)(h) (2016).
Once a final agency decision is issued, a potential, current, or former State
employee may appeal an adverse employment action as a contested case pursuant to
the method provided in N.C. Gen. Stat. § 126-34.02 (2015). As relevant to the present
case, N.C. Gen. Stat. § 126-34.02(a) provides:
(a) [A] former State employee may file a contested case in
the Office of Administrative Hearings under Article 3 of
-7-
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
Chapter 150B of the General Statutes. . . . In deciding
cases under this section, the [ALJ] may grant the
following relief:
(1) Reinstate any employee to the position from
which the employee has been removed.
(2) Order the employment, promotion, transfer,
or salary adjustment of any individual to
whom it has been wrongfully denied.
(3) Direct other suitable action to correct the
abuse which may include the requirement of
payment for any loss of salary which has
resulted from the improper action of the
appointing authority.
One of the issues, which may be heard as a contested case under this statute,
is whether just cause existed for dismissal, demotion, or suspension. As here, “[a]
career State employee may allege that he or she was dismissed, demoted, or
suspended for disciplinary reasons without just cause.” N.C. Gen. Stat. § 126-
34.02(b)(3). In such cases, “the burden of showing that a career State employee was
discharged, demoted, or suspended for just cause rests with the employer.” N.C. Gen.
Stat. § 126-34.02(d). In a contested case, an “aggrieved party” is entitled to judicial
review of a final decision of an administrative law judge [ALJ] by appeal directly to
this Court. N.C. Gen. Stat. § 126-34.02(a); N.C. Gen. Stat. § 7A-29(a).
While Chapter 126 is silent on the issue, Chapter 150B, the Administrative
Procedure Act, specifically governs the scope and standard of this Court’s review of
an administrative agency’s final decision. See Overcash v. N.C. Dep’t of Env’t &
-8-
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
Natural Res., 179 N.C. App. 697, 702, 635 S.E.2d 442, 446 (2006), disc. review denied,
361 N.C. 220 (2007). Article 4 of Chapter 150B is entitled “Judicial Review,” and
includes N.C. Gen. Stat. § 150B-43:
[a]ny . . . person aggrieved by the final decision in a
contested case, and who has exhausted all administrative
remedies made available to the . . . person aggrieved by
statute or agency rule, is entitled to judicial review of the
decision under this Article, unless adequate procedure for
judicial review is provided by another statute.
N.C. Gen. Stat. § 150B-43 (2015) (emphasis supplied).
Chapter 150B also includes Section 51, which is entitled “Scope and standard
of review.” N.C. Gen. Stat. § 150B-51 (2015). The statute provides:
The court reviewing a final decision may affirm the
decision or remand the case for further proceedings. It may
also reverse or modify the decision if the substantial rights
of the petitioners may have been prejudiced because the
findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the
agency or administrative law judge;
(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.
-9-
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
Id.
The standard of review is dictated by the substantive nature of each
assignment of error. N.C. Gen. Stat. § 150B-51(c); Carroll, 358 N.C. at 658, 599 S.E.2d
at 894. “It is well settled that in cases appealed from administrative tribunals,
questions of law receive de novo review, whereas fact-intensive issues such as
sufficiency of the evidence to support an agency’s decision are reviewed under the
whole-record test.” Carroll, 358 N.C. at 659, 599 S.E.2d at 894-95 (brackets, quotation
marks and citation omitted). The court engages in de novo review when the error
asserted is within § 150B-51(b)(1), (2), (3), or (4). N.C. Gen. Stat. § 150B-51(c). “Under
the de novo standard of review, the trial court considers the matter anew and freely
substitutes its own judgment for the agency’s.” Overcash, 179 N.C. App. at 703, 635
S.E.2d at 446 (brackets, quotation marks, and citation omitted).
On the other hand, when the error asserted is within N.C. Gen. Stat. § 150B-
51(b)(5) & (6), the reviewing court applies the “whole record standard of review.” N.C.
Gen. Stat. §150B-51(c). Under the whole record test,
[The court] 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.
Substantial evidence is relevant evidence a reasonable
mind might accept as adequate to support a conclusion.
- 10 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
Carroll, 358 N.C. at 660, 599 S.E.2d at 895 (internal citations and quotation marks
omitted).
We undertake this review with a high degree of deference
because it is well established that
“[i]n an administrative proceeding, it is the prerogative and
duty of [the ALJ], once all the evidence has been presented
and considered, 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 credibility of witnesses and
the probative value of particular testimony are for the
[ALJ] to determine, and [the ALJ] may accept or reject in
whole or part the testimony of any witness.”
N.C. Dep’t of Pub. Safety v. Ledford, __ N.C. App. __, __, 786 S.E.2d 50, 64 (2015)
(quoting City of Rockingham v. N.C. Dep’t of Env’t. & Natural Res., 224 N.C. App.
228, 239, 736 S.E.2d 764, 771 (2012)), review allowed, __ N.C. __, 792 S.E.2d 152
(2016).
“[O]ur Supreme Court has made [it] clear that even under our de novo
standard, a court reviewing a question of law in a contested case is without authority
to make new findings of fact.” Id. at __, 786 S.E.2d 50, 63-64 (2015) (citing Carroll,
358 N.C. at 662, 599 S.E.2d at 896).
In a contested case under the APA, as in a legal proceeding
initiated in District or Superior Court, there is but one fact-
finding hearing of record when witness demeanor may be
directly observed. Thus, the ALJ who conducts a contested
case hearing possesses those institutional advantages that
- 11 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
make it appropriate for a reviewing court to defer to his or
her findings of fact.
Carroll, 358 N.C. at 662, 599 S.E.2d at 896 (internal citations and quotations marks
omitted).
Our separately writing colleague asserts the provisions of Chapter 150B are
inapplicable because of N.C. Gen. Stat. § 150B-43, which states a person is entitled
to judicial review of the final decision under Chapter 150B “unless adequate
procedure for judicial review is provided by another statute, in which case the review
shall be under such other statute.” N.C. Gen. Stat. § 150B-43 (2015). The separate
opinion asserts N.C. Gen. Stat. § 126-34.02 is “another statute,” which provides “an
adequate procedure for judicial review.” We disagree.
The provisions of Chapters 126 and 150B are not inconsistent. N.C. Gen. Stat.
§ 126-34.02 simply provides the employee’s procedure to file a contested case, the
issues the employee may bring before the ALJ, the types of relief the ALJ may impose,
and the right to appeal directly to this Court from the ALJ’s final decision. The scope
and standard of review of this Court’s review of the ALJ’s final decision is expressly
set forth in § 150B-51. Chapter 126 is silent on this issue. While Chapter 126 governs
the proceeding before the ALJ and provides the aggrieved party the right to appeal
to this Court, Chapter 150B sets forth our standard of review, which is the same
standard of review that has been consistently applied by our appellate courts and is
not contested by our separately writing colleague.
- 12 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
We perceive no intent, through the 2013 changes to this procedural framework,
to alter the applicable standard of review. Consistent with the Administrative
Procedure Act, the ALJ makes “a final decision or order that contains findings of fact
and conclusions of law” in each contested case. N.C. Gen. Stat. § 150B-34(a).
Respondent argues the ALJ must give deference to the agency in determining
whether just cause exists for the agency’s action.
Respondent’s assertion is directly contrary to the express statutory burden
established by the General Assembly for contested case hearings of this nature.
Given that the statute explicitly places the burden of proof on the agency to show just
cause exists for the discharge, demotion, or suspension of a career State employee, it
is illogical for an ALJ to accord deference to an agency’s legal conclusion and to the
particular consequences or sanction imposed. See N.C. Gen. Stat. § 126-34.02(d)
An appellate court’s standard of review of an agency’s final decision—and now,
an administrative law judge’s final decision—has been, and remains, whole record on
the findings of fact and de novo on the conclusions of law. See Carroll, 358 N.C. at
666-67, 599 S.E.2d at 898 (noting that whether just cause existed is a question of law
which is reviewed de novo on appeal); Blackburn v. N.C. Dept. of Pub. Safety, ___ N.C.
App. __, __, 784 S.E.2d 509, 518, disc. review denied, 786 S.E.2d 915 (2016) (“‘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
- 13 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
been considered by the agency.’” (quoting Souther v. New River Area Mental Health,
142 N.C. App. 1, 4, 541 S.E.2d 750, 752, aff’d per curiam, 354 N.C. 209, 552 S.E.2d
162 (2001)).
An ALJ, reviewing an agency’s decision to discipline a career State employee
within the context of a contested case hearing, owes no deference to the agency’s
conclusion of law that either just cause existed or the proper consequences of the
agency’s action. This Court came to the same conclusion in a recent unpublished
opinion. See Clark v. N.C. Dep’t of Pub. Safety, __ N.C. App. __, __, 791 S.E.2d 661, __
(Sept. 6, 2016) (unpublished) (rejecting Respondent’s argument that “the ALJ
[improperly] substituted his own judgment for that of” the agency in holding that
“whether just cause exists is a conclusion of law, which the ALJ had authority to
review de novo.” (citing Carroll, 358 N.C. at 666, 599 S.E.2d at 898)).
After receiving and considering the evidence, and entering findings of fact, an
ALJ is free to substitute their judgment for that of the agency regarding the legal
conclusion of whether just cause existed for the agency’s action. Based upon the
evidence presented and the findings of fact supporting the legal conclusion of just
cause, the ALJ may order any remedy within the range provided in N.C. Gen. Stat. §
126-34.02, without regard to the initial agency’s determination.
B. Whether Petitioner’s Conduct Warranted Termination
- 14 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
Respondent contends the ALJ erred in concluding Respondent’s dismissal of
Petitioner for unacceptable personal conduct was not supported by just cause. A
career state employee subject to the North Carolina Human Resources Act may only
be “discharged, suspended, or demoted for disciplinary reasons” upon a showing of
“just cause.” N.C. Gen. Stat. § 126-35(a) (2015). Under the North Carolina
Administrative Code, “just cause” for the dismissal, suspension, or demotion of a
career state employee may be established only on a showing of “unsatisfactory job
performance, including grossly inefficient job performance,” or “unacceptable
personal conduct.” 25 NCAC 1J .0604 (2016).
“Just cause, like justice itself, is not susceptible of precise definition.” Carroll,
358 N.C. at 669, 599 S.E.2d at 900 (citations and quotation marks omitted). The term
“just cause” has been interpreted by our Supreme Court as 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. (citation and
quotation marks omitted). “Inevitably, this inquiry requires an irreducible act of
judgment that cannot always be satisfied by the mechanical application of rules and
regulations.” Id.
In Warren v. N.C. Dep’t of Crime Control, 221 N.C. App. 376, 726 S.E.2d 920,
this Court delineated a three-part inquiry to guide judges in determining whether
just cause existed for an employee’s dismissal for unacceptable personal conduct:
- 15 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
We conclude 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. This avoids contorting the
language of the Administrative Code defining
unacceptable personal conduct. The proper analytical
approach is to first determine whether the employee
engaged in the conduct the employer alleges. The second
inquiry is whether the employee’s conduct falls within one
of the categories of unacceptable personal conduct provided
by the Administrative Code. Unacceptable personal
conduct does not necessarily establish just cause for all
types of discipline. If the employee’s act qualifies as a type
of unacceptable conduct, the tribunal proceeds to the third
inquiry: whether that misconduct amounted to just cause
for the disciplinary action taken.
Warren, 221 N.C. App. at 382-83, 726 S.E.2d at 925 (emphasis supplied) (citations
and footnote omitted). The first two prongs of Warren are easily satisfied. The ALJ
found and concluded as follows:
12. Here, the preponderance of the evidence shows that
Petitioner engaged in the conduct alleged by Respondent.
While there is some evidence to the contrary, the greater
weight of evidence demonstrates that Petitioner struck a
restrained inmate in the abdomen.
. . . .
18. Hitting inmate Walls while in restraints does not fit
any of the categories identified for use of force. The only
reason that makes any sense at all for the force used in this
case is as some form of retribution for having defecated in
his cell or to make a point that such behavior is not to be
tolerated. Such behavior by Petitioner is prohibited.
Hitting Walls was not “justified.”
19. Thus, hitting a restrained inmate as found herein
violates Respondent’s Use of Force Policy and constitutes
- 16 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
unacceptable personal conduct as Petitioner’s conduct
violates a written work rule.
As to the first prong, the unchallenged findings of fact tend to show Petitioner
punched Walls in the stomach, without provocation, and at a time when Walls was
restrained and under the control of multiple officers.
As to the second prong, Petitioner’s conduct amounts to the “willful violation
of known or written work rules,” which is one of the listed instances of unacceptable
conduct pursuant to 25 NCAC 1J .0614(8)(d) (2016). Petitioner had been trained and
was aware of Respondent’s Use of Force policy, which limited the use of force to
“instances of justifiable self-defense, protection of others, protection of state property,
prevention of escapes, and to maintain or regain control, and then only as a last
resort” and noted that “[i]n no event is physical force justifiable as punishment.”
We agree with the ALJ’s finding of fact that punching Walls, while he was in
restraints and under the control of other officers, “does not fit into any of the
categories identified for use of force,” and that force was used by Petitioner as “some
form of retribution” for Walls’ actions. We also agree with Respondent and the ALJ
that the record evidence and the ALJ’s conclusions support the determination that
Petitioner’s conduct constituted “unacceptable personal conduct” and warranted
discipline for his actions. 25 NCAC 1J .0604.
Having found the first two Warren prongs satisfied, we proceed to a
consideration of whether “[Petitioner’s] misconduct amounted to just cause for the
- 17 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
disciplinary action taken.” Warren, 221 N.C. App. at 382-83, 726 S.E.2d at 925
(emphasis supplied). The ALJ found:
28. In this contested case, there are considerable
mitigating factors to consider. They are as follows:
a. This Tribunal has found as fact and concluded as a
matter of law there is sufficient probative evidence that
Petitioner punched Walls in the stomach as alleged by
Respondent in the dismissal letter. While Sgt. Grantham
lacks credibility, the other correctional officers are credible.
However, there are aspects of the facts that remain
troubling and serve to mitigate in favor of Petitioner.
b. The Petitioner has a good work history with Respondent
generally and with inmate Walls in particular. There is no
evidence of any prior instances of unacceptable personal
conduct, disciplinary action, or anything in Petitioner’s
past suggesting he would engage in an act of excessive force
against an inmate. His regular shift sergeant described
him as a hard worker and an asset to his unit.
c. Petitioner had a good working relationship with Walls,
an inmate who has more than 100 adjudicated disciplinary
infractions. Petitioner testified without contradiction that
he was the staff member on his regular shift who could
calm Walls down because Walls thought Petitioner was a
fellow Muslim. There was no indication that Petitioner had
a prior specific problem with Walls or any substantially
negative prior interaction with Walls.
d. This action took place when Petitioner was not working
his regular shift. He was working with a supervisor
(Grantham) and other correctional officers (Johnson,
Sherman, and Alexander) with whom he had not worked
before. It does not seem logical for Petitioner to punch an
inmate without provocation while working with strangers.
- 18 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
e. The medical evidence—or lack thereof—also militates in
Petitioner’s behalf. Petitioner is a very large man and
inmate Walls is a small man. The Use of Force Medical
screening conducted within half an hour of the alleged
assault found (Petitioner’s Exhibit 3E) no evidence
whatsoever of Walls having been punched by anyone.
There was no sign of any injury at all; not even redness.
f. Among inmate Walls’s many disciplinary issues, there
were multiple complaints by Walls that he was assaulted
by staff, all of which were unsubstantiated. On this
occasion, Walls never claimed to anyone that he was
assaulted by Petitioner. He did not file a grievance against
Petitioner or write any statement against Petitioner as he
had against other officers in the past.
g. Walls also had a documented history of making fictitious
or exaggerated medical complaints. On this occasion, less
than 30 minutes after allegedly being punched by
Petitioner, Walls made no complaints of pain or injury
whatever and was in “no active distress,” with “no
complaints,” even though he was being attended to in the
medical clinic at the facility with every opportunity to
complain. It strains credulity to conclude that an inmate
with this kind of history would make no complaint
whatever after receiving an unprovoked assault from a
staff member.
h. The statement “Y’all hit like bitches” attributed to Walls
was plural, made no reference to Petitioner, and was
spoken to Sergeant Grantham.
i. Video taken moments after the supposed unprovoked
assault shows Walls walking erect, smiling, and in no
apparent distress. Petitioner and officers Sherman and
Alexander appear to be engaged in friendly conversation
and are smiling and at times laughing. Johnson is in front
escorting the inmate, and is not engaged in the
conversation, but the video fails to show him remonstrating
with Petitioner or trying to keep Petitioner away from the
- 19 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
inmate. Everything about the video shows a completely
uneventful situation. Likewise, the video taken directly
before the incident shows nothing unusual.
j. There is no evidence that Walls ever bent over even in
the slightest after having been hit by a very large man. He
was not winded by having been punched. There was no
evidence at all from any of the corrections officers of any
physical reaction to having been punched.
k. The facts that Walls made no complaint, that he made
the statement to Grantham, that there was no physical
reaction to having been punched, that there was no sign of
assault in the physical exam and moments later he is
walking as though nothing has happened are indicative
that only one of two possible scenarios existed on that date
and at that time: either (1) Petitioner did not hit inmate
Walls at all, or (2) Petitioner did hit Walls but with such
insignificant force that it was practically non-existent.
l. Having concluded that the three corrections officers’
testimony was sufficiently credible and concluded that
indeed Petitioner did strike inmate Walls, then the only
rational conclusion based on the totality of the
circumstances in this contested case is that Petitioner
struck Walls with very little force.
These findings, which are challenged by Respondent, are listed in the ALJ’s
final decision under the heading “Conclusions of Law.” However, they are more
appropriately reviewed as findings of fact. See Barnette v. Lowe’s Home Ctrs., Inc., __
N.C. App. __, __, 785 S.E.2d 161, 165 (2016) (“[A]ny determination requiring the
exercise of judgment or the application of legal principles is more properly classified
a conclusion of law,” while a “determination reached through logical reasoning from
the evidentiary facts is more properly classified a finding of fact.” (citation omitted)).
- 20 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
We consider and review them as findings of fact, without regard to the given label.
See N.C. State Bar v. Key, 189 N.C. App. 80, 88, 658 S.E.2d 493, 499 (2008)
(“[C]lassification of an item within [an] order is not determinative, and, when
necessary, the appellate court can reclassify an item before applying the appropriate
standard of review.”).
As the sole fact-finder, the ALJ has both the duty and prerogative to determine
the credibility of the witnesses, the weight and sufficiency of their testimony, “to draw
inferences from the facts, and to sift and appraise conflicting and circumstantial
evidence.” Ledford, __ N.C. App. at __, 786 S.E.2d at 64 (citation omitted). We afford
“a high degree of deference” to the ALJ’s findings, when they are supported by
substantial evidence in the record. Id. After reviewing the whole record, we find
substantial evidence support the ALJ’s findings, and they are binding on appeal. See
Carroll, 358 N.C. at 660, 599 S.E.2d at 895.
Just cause is determined upon “examination of all the facts, circumstances,
and equities of a case, [and] consideration of additional factors shedding light on the
employee’s conduct[.]” Bulloch v. N.C. Dept. of Crime Control and Pub. Safety, 223
N.C. App. 1, 12, 732 S.E.2d 373, 381, disc. review denied, 366 N.C. 418, 735 S.E.2d
178 (2012). The Court in Warren referred to this process as “balanc[ing] the equities.”
Warren, 221 N.C. App. at 382, 726 S.E.2d at 925. This Court recently explained, “A
just and equitable determination of whether the unacceptable personal conduct
- 21 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
constituted just cause for the disciplinary action taken requires consideration of the
facts and circumstances of each case, including mitigating factors.” N.C. Dep’t of Pub.
Safety v. Shields, __ N.C. App. __, __, 781 S.E.2d 718, __ (Jan. 19, 2016) (unpublished),
disc. review denied, __ N.C. __, 784 S.E.2d 176 (2016).
Based upon the evidence received and the findings set forth above, the ALJ
determined Petitioner’s conduct “does not rise to the level of conduct that would
justify the severest sanction of dismissal under the totality of facts and circumstances
of this contested case; it is not the ‘right’ thing to do.” While we do not condone
Respondent’s behavior, we recognize the ALJ is the sole fact-finder, and the only
tribunal with the ability to hear testimony, observe witnesses, and weigh credibility.
As such, we defer to the ALJ’s findings of fact, even if evidence was presented to
support contrary findings. Ledford, __ N.C. App. at __, 786 S.E.2d at 64.
In consideration of the findings of fact set forth above, and after “balancing the
equities,” we hold the ALJ did not err in determining the agency did not meet its
burden to show just cause for Respondent’s termination. Warren, 221 N.C. App. at
383, 726 S.E.2d at 925.
C. Imposition of Alternative Discipline by the ALJ
The North Carolina Administrative Code sets forth four disciplinary
alternatives, which may be imposed against an employee upon a finding of just cause:
“(1) written warning; (2) Disciplinary suspension without pay; (3) Demotion; and (4)
- 22 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
Dismissal.” 25 NCAC 1J.0604(a). “Unacceptable personal conduct does not
necessarily establish just cause for all types of discipline. . . . Just cause must be
determined based upon an examination of the facts and circumstances of each
individual case.” Warren, 221 N.C. App. at 383, 726 S.E.2d at 925. Under the
necessarily malleable judgment standard created by our precedents, and after
considering the totality of the unique facts and circumstances of the present case, we
affirm the ALJ’s determination that just cause did not exist to impose the most severe
form of discipline: dismissal from employment. See Carroll, 358 N.C. at 669, 599
S.E.2d at 900.
In a contested case, “the burden of showing a career State employee was
discharged, demoted, or suspended for just cause rests with the employer.” N.C. Gen.
Stat. § 126-34.02(d). There are likely scenarios in which the employer meets its
burden to show just cause exists to impose a disciplinary action, but just cause does
not exist to support dismissal of the employee. The General Assembly recognized this
range of possible sanctions and enacted N.C. Gen. Stat. § 126-34.02 as part of the
2013 amendments. The statute reads:
(a) Once a final agency decision has been issued in
accordance with G.S. 126-34.01, an applicant for
State employment, a State employee, or former State
employee may file a contested case in the Office of
Administrative Hearings under Article 3 of Chapter
150B of the General Statutes. The contested case
must be filed within 30 days of receipt of the final
agency decision. Except for cases of extraordinary
- 23 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
cause shown, the Office of Administrative Hearings
shall hear and issue a final decision in accordance
with G.S. 150B-34 within 180 days from the
commencement of the case. In deciding cases under
this section, the Office of Administrative Hearings
may grant the following relief:
(1) Reinstate any employee to the position from
which the employee has been removed.
(2) Order the employment, promotion, transfer, or
salary adjustment of any individual to whom it
has been wrongfully denied.
(3) Direct other suitable action to correct the abuse
which may include the requirement of payment
for any loss of salary which has resulted from
the improper action of the appointing
authority.
N.C. Gen. Stat. § 126-34.02(a) (2015) (emphases supplied).
Under subsection (a)(3) of the statute, the ALJ has express statutory authority
to “[d]irect other suitable action” upon a finding that just cause does not exist for the
particular action taken by the agency. Under the ALJ’s de novo review, the authority
to “[d]irect other suitable action” includes the authority to impose a less severe
sanction as “relief.” See id.
Because the ALJ hears the evidence, determines the weight and credibility of
the evidence, makes findings of fact, and “balanc[es] the equities,” the ALJ has the
authority under de novo review to impose an alternative discipline. Upon the ALJ’s
determination that the agency met the first two prongs of the Warren standard, but
- 24 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
just cause does not exist for the particular disciplinary alternative imposed by the
agency, the ALJ may impose an alternative sanction within the range of allowed
dispositions. See id. We hold the ALJ acted within his authority by determining the
agency failed to meet its burden to show just cause existed to warrant Petitioner’s
termination for unacceptable personal conduct.
Our separately writing colleague states N.C. Gen. Stat. § 126-34.02(a)(3) is
inapplicable, because “the ALJ could only invoke his or her powers pursuant to [this
subsection] if it first determined there was no just cause for the termination of
Petitioner’s employment.” The ALJ clearly determined just cause does not exist for
Petitioner’s termination. The separate opinion would impose the harshest
alternative allowed as a sanction for unacceptable personal conduct. No process or
standard is proposed to guide the substitution of the sanction for that imposed by the
finder of fact.
The final decision states the ALJ “finds that there was not just cause to dismiss
Petitioner for unacceptable personal conduct.” (emphasis supplied). The ALJ heard
the evidence, weighed the credibility, and determined dismissal of Petitioner was
unwarranted under these facts, and imposed a written warning and a one-week
suspension without pay. Under our de novo review, we agree the evidence and
findings of fact tends to show just cause exists to impose discipline upon petitioner as
- 25 -
HARRIS V. N.C. DEP’T OF PUB. SAFETY
Opinion of the Court
a result of his unacceptable personal conduct. The ALJ imposed a sanction within
the range of authorized disciplinary alternatives. See 25 N.C.A.C. 1J .0604(a).
V. Conclusion
Under our de novo review of the existence of just cause, and giving whole record
deference to the ALJ’s findings of fact, the ALJ’s conclusion that Petitioner’s conduct
“does not rise to the level of conduct that would justify the severest sanction of
dismissal under the totality of facts and circumstances of this contested case,” and
dismissal of Petitioner “is not the ‘right’ thing to do” is affirmed. The ALJ’s conclusion
that just cause existed for a written warning and a one-week suspension without pay
is also affirmed. The final decision of the ALJ is affirmed.
AFFIRMED.
Judge DIETZ concurs.
Chief Judge McGEE concurs in part, dissents in part, with separate opinion.
- 26 -
No. COA16-341 – Harris v. N.C. Dep’t of Pub. Safety
McGEE, Chief Judge, concurring in part and dissenting in part.
I concur in the majority’s conclusion that an “administrative law judge,
reviewing an agency’s decision to discipline a career state employee . . . owes no
deference to the agency’s conclusion of law that . . . just cause existed” for the action
taken by the agency. I also agree that “[a]fter receiving and considering the evidence,
and entering findings of fact, an administrative law judge is free to substitute their
judgment for that of the agency as to the legal conclusion of whether just cause . . .
existed for the agency’s action.” However, I respectfully dissent from the majority’s
assertion that the standards of review provided in N.C. Gen. Stat. § 150B-51 apply to
this case. I further dissent from the majority’s conclusion, in its application of the
three-prong “just cause” analysis created by this Court in Warren v. N.C. Dep’t of
Crime Control, 221 N.C. App 376, 726 S.E.2d 920, disc. review denied, 366 N.C. 408,
735 S.E.2d 175 (2012), that Petitioner’s actions in the present case did not give rise
to just cause for his termination – the disciplinary action chosen by the agency.
I. Changes in the Just Cause Statutory Framework
The present case is the first time this Court has interpreted the changes made
to the statutory scheme for determining when just cause exists for an agency’s
disciplinary decision. See generally 2013 N.C. Sess. Laws ch. 382 (“the 2013
amendment”). The most significant change made by the 2013 amendment was to
alter the role of the ALJ in the just cause determination process. Under the former
statutory framework, an ALJ provided a “recommended decision,” complete with
HARRIS V. N.C. DEP’T OF PUB. SAFETY
McGEE, C.J., concurring in part and dissenting in part
findings of facts and conclusions of law, before entry of a final agency action. See N.C.
Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 657-58, 599 S.E.2d 888, 893-
94 (2004). Through the 2013 amendment, the General Assembly created N.C. Gen.
Stat. §§ 126-34.01 and 126-34.02, and in doing so significantly shifted the role of the
ALJ in the just cause determination process. A contested case hearing is now
initiated in the Office of Administrative Hearings “[o]nce a final agency decision has
been issued[.]” N.C. Gen. Stat. § 126-34.02(a) (2015). N.C. Gen. Stat. § 126-34.02
currently allows the ALJ to review an agency decision to terminate the employment
of a career State employee under the following relevant circumstances:
(b) The following issues may be heard as contested
cases after completion of the agency grievance procedure
and the Office of State Human Resources review:
....
(3) Just cause for dismissal, demotion, or
suspension. – A career State employee may
allege that he or she was dismissed, demoted,
or suspended for disciplinary reasons without
just cause.
N.C. Gen. Stat. § 126-34.02(b)(3) (2015). The language of N.C. Gen. Stat. § 126-
34.02(b)(3) allows a State employee to initiate a contested case in the Office of
Administrative Hearings to review whether just cause existed to dismiss, demote, or
suspend that employee. Id. There is nothing in the language of N.C.G.S. § 126-
34.02(b)(3) to indicate that a career state employee may initiate a contested case to
2
HARRIS V. N.C. DEP’T OF PUB. SAFETY
McGEE, C.J., concurring in part and dissenting in part
argue that he should have received a lesser disciplinary action, although just cause
existed for the disciplinary action received.
Further, N.C. Gen. Stat. § 126-34.02(a) limits the Office of Administrative
Hearings to the following relief when it has determined that the final agency decision
was erroneous:
Once a final agency decision has been issued in accordance
with G.S. 126-34.01, . . . a State employee, or former State
employee may file a contested case in the Office of
Administrative Hearings under Article 3 of Chapter 150B
of the General Statutes. . . . In deciding cases under this
section, the Office of Administrative Hearings may grant
the following relief:
(1) Reinstate any employee to the position from
which the employee has been removed.
(2) Order the employment, promotion, transfer,
or salary adjustment of any individual to
whom it has been wrongfully denied.
(3) Direct other suitable action to correct the
abuse which may include the requirement of
payment for any loss of salary which has
resulted from the improper action of the
appointing authority.
N.C. Gen. Stat. § 126-34.02 (2015). N.C. Gen. Stat. § 126-34.02(a)(2) is not relevant
to the issue before us. N.C. Gen. Stat. § 126-34.02(a)(1) authorizes reinstatement of
an employee if the ALJ in a contested case hearing determines that there was no just
cause to terminate the employee. N.C.G.S. § 126-34.02(a)(1) does not specifically
authorize the ALJ to grant any relief other than reinstatement if it determines that
3
HARRIS V. N.C. DEP’T OF PUB. SAFETY
McGEE, C.J., concurring in part and dissenting in part
dismissal was not supported by just cause. N.C. Gen. Stat. § 126-34.02(a)(3) allows
the ALJ to take other suitable action that may include actions not specifically
mentioned in the statute, but only “to correct the abuse [or the ‘improper action of the
appointing authority’].” Id. In other words, N.C.G.S. § 126-34.02(a)(3) only applies
if the ALJ had determined that the final agency decision was erroneous. In the case
before us, the ALJ could only invoke his or her powers pursuant to N.C.G.S. § 126-
34.02(a)(3) if it first determined there was no just cause for the termination of
Petitioner’s employment.1
In short, the Office of Administrative Hearings is authorized by N.C.G.S. § 126-
34.02 to take action in a contested case if it has first determined that the actual
discipline included in the final agency decision was not supported by just cause. If
the ALJ determines that there was just cause to support the final agency decision, it
lacks authority to do anything other than affirm that decision.
While the majority principally cites and quotes from N.C.G.S. § 126-34.02, the
majority simultaneously concludes that N.C. Gen. Stat. § 150B-51 “governs the scope
and standard of review of this Court’s review of an administrative agency’s final
decision,” and that “[t]he standard of review is dictated by the substantive nature of
1 I would further note that nothing in N.C.G.S. § 126-34.02(a)(3) suggests that an ALJ is
granted authority to substitute his or her judgment for that of the relevant agency as to the correct
disciplinary action to be imposed. N.C.G.S. § 126-34.02(a)(3) only gives the ALJ the authority to
remedy any damages to a petitioner flowing from an incorrect discipline imposed by a final agency
decision.
4
HARRIS V. N.C. DEP’T OF PUB. SAFETY
McGEE, C.J., concurring in part and dissenting in part
each assignment of error.” (citations omitted). I disagree with any reliance the
majority places on N.C.G.S. § 150B-51, a separate statutory framework which is, in
my view, inapplicable to the present case. N.C.G.S. § 150B-51, a part of Article 4 of
Chapter 150B of the General Statutes, is entitled “Judicial Review” and allows “[t]he
court reviewing a final decision” of an ALJ to reverse or modify that decision under
certain circumstances and under various standards of review. See N.C. Gen. Stat. §§
150B-51(b)(1)-(6) (2015). N.C. Gen. Stat. § 150B-43, another statute in Article 4,
describes when the procedure provided by Article 4 of Chapter 150B governs judicial
review of an ALJ’s decision, and when it does not:
Any party or person aggrieved by the final decision in a
contested case, and who has exhausted all administrative
remedies made available to the party or person aggrieved
by statute or agency rule, is entitled to judicial review of
the decision under this Article, unless adequate procedure
for judicial review is provided by another statute, in which
case the review shall be under such other statute.
N.C. Gen. Stat. § 150B-43 (2015) (emphasis added).
The procedure in Article 4 of Chapter 150B, including the standards of review
in N.C.G.S. § 150B-51, are inapplicable because N.C.G.S. § 126-34.02, which states
that “[a]n aggrieved party in a contested case under this section shall be entitled to
judicial review of a final decision by appeal to the Court of Appeals,” serves as
“another statute” which provides an “adequate procedure for judicial review” and
thereby renders N.C.G.S. §§ 150B-43 through 150B-52 not relevant. This view is
reinforced by reading N.C.G.S. § 126-34.02, which provides judicial review directly to
5
HARRIS V. N.C. DEP’T OF PUB. SAFETY
McGEE, C.J., concurring in part and dissenting in part
the Court of Appeals, in pari materia with N.C.G.S. § 150B-45, which provides that,
under the procedures set out in Article 4 of Chapter 150B, judicial review is
undertaken first in superior court. See N.C. Gen. Stat. § 150B-45 (2015) (“To obtain
judicial review of a final decision under [Article 4 of Chapter 150B], the person
seeking review must file . . . [a] petition for review . . . in the superior court[.]”). Both
statutes cannot control judicial review of contested case hearings of this nature, and
because N.C.G.S. § 126-34.02 was specifically enacted to provide for judicial review
directly to this Court, I find it to be the “adequate procedure for judicial review”
contemplated by N.C.G.S. § 150B-43. Therefore, the statutory procedure set forth in
Article 4 of Chapter 150B, including the standards of review in N.C.G.S. § 150B-51,
are inapplicable.2 I dissent from the majority’s conclusion, to the extent that it holds
that the standards of review contained in N.C.G.S. § 150B-51 are applicable to this
case.
II. Warren Analysis: Just Cause for Petitioner’s Termination
N.C. Gen. Stat. § 126-35(a) provides: “No career State employee subject to the
North Carolina Human Resources Act shall be discharged, suspended, or demoted for
disciplinary reasons, except for just cause. . . . The State Human Resources
2While the standards of review provided in N.C.G.S. § 150B-51 are inapplicable, the standards
of review that are applicable to judicial review of contested cases of this nature are well established,
and are cited by the majority. Findings of fact are reviewed under the whole record test, and
conclusions of law are reviewed de novo. See N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C.
649, 655, 599 S.E.2d 888, 898 (2004); Barron v. Eastpointe Human Servs. LME, ___ N.C. App. ___, ___,
786 S.E.2d 306, 310-11 (2016).
6
HARRIS V. N.C. DEP’T OF PUB. SAFETY
McGEE, C.J., concurring in part and dissenting in part
Commission may adopt, subject to the approval of the Governor, rules that define just
cause.” N.C. Gen. Stat. § 126-35(a) (2015). Exercising that delegated authority, the
State Human Resources Commission has adopted rules, codified in the North
Carolina Administrative Code, that define just cause for disciplinary action: “Either
unsatisfactory or grossly inefficient job performance or unacceptable personal
conduct as defined in 25 NCAC 1J .0614 of this Section constitute just cause for
discipline or dismissal.” 25 NCAC 01J .0604(c). Unacceptable personal conduct, the
reason for dismissal in this case, includes “the willful violation of known or written
work rules.” 25 NCAC 01J .0614(8)(d).
In Warren, as noted by the majority, this Court delineated a three-part inquiry
to guide courts in determining whether an employee was dismissed for “just cause”
for unacceptable personal conduct:
[T]he 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. This avoids contorting the language of
the Administrative Code defining unacceptable personal
conduct. The proper analytical approach is to first
determine whether the employee engaged in the conduct
the employer alleges. The second inquiry is whether the
employee’s conduct falls within one of the categories of
unacceptable personal conduct provided by the
Administrative Code. Unacceptable personal conduct does
not necessarily establish just cause for all types of
discipline. If the employee’s act qualifies as a type of
unacceptable conduct, the tribunal proceeds to the third
inquiry: whether that misconduct amounted to just cause
for the disciplinary action taken.
7
HARRIS V. N.C. DEP’T OF PUB. SAFETY
McGEE, C.J., concurring in part and dissenting in part
Warren, 221 N.C. App. at 382-83, 726 S.E.2d at 925 (citations and footnote omitted).
Applying Warren’s framework in the present case, I, too, find the first two inquiries
satisfied.3 As to the first inquiry, the unchallenged findings of fact provide that
Petitioner punched Walls in the stomach with his fist, without provocation, and at a
time when Walls was restrained and under the complete control of multiple
correctional officers. As to the second inquiry, Petitioner’s conduct amounted to the
“willful violation of known or written work rules,” which is one of the instances of
unacceptable personal conduct pursuant to 25 NCAC 01J .0614(8)(d).
However, I must disagree with the majority as to “the third inquiry: whether
[the petitioner’s] misconduct amounted to just cause for the disciplinary action
taken.” Warren, 221 N.C. App. at 382-83, 726 S.E.2d at 925. After considering the
totality of the facts and circumstances of the present case, I believe Petitioner’s
actions of unacceptable personal conduct gave rise to “just cause” for his termination
by Respondent. The unchallenged findings show that Petitioner punched an inmate
in the stomach with his fist, without justification, and while the inmate was
restrained, compliant, and under the complete control of other correctional officers.
The three correctional officers present at the scene, and tasked with removing Walls
from his cell, testified as to Petitioner’s actions, and their effect on Walls.
3 Although our Supreme Court is not bound by Warren’s three-prong analysis, see, e.g.,
Northern Nat’l Life Ins. v. Miller Machine Co., 311 N.C. 62, 76, 316 S.E.22d 256, 265 (1984), Warren’s
analysis is a helpful conceptualization of N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649,
599 S.E.2d 888 (2004), and is useful in the just cause analysis.
8
HARRIS V. N.C. DEP’T OF PUB. SAFETY
McGEE, C.J., concurring in part and dissenting in part
Officer Johnson testified that Petitioner entered through a side door, said to
Walls, “you think this is funny,” and punched Walls in the stomach. Officer Johnson
explained that the “blow was unexpected,” and it caused Walls to “ma[ke] a sound”
and fall to the ground. Officer Alexander likewise described Walls’ reaction to
Petitioner’s punch: “[Walls] grunted, leaned forward, shook his head, and stood back
up.” Petitioner found this funny, and “laugh[ed] all the way” from the scene of the
assault to Walls’ holding cell. Officer Johnson “couldn’t believe [Petitioner] did what
he did,” and was so astonished that he needed “to clear [his] head.” Petitioner later
sought out Officer Johnson and, while refusing to answer “why [he] hit that inmate
for no reason,” explained that the fact the assault occurred in a known blind spot was
not coincidental; Petitioner explained that he waited to strike until Walls was in a
known blind spot: Petitioner explained to Officer Johnson that “[h]e knew where all
the blind spots was [sic], and the camera didn’t pick up nothing. Didn’t see it.”
Petitioner also threatened Officer Johnson, telling Sergeant Grantham that “if
[Officer] Johnson wrote anything against him, that he [Petitioner] was going to hurt
Johnson.”
Petitioner was aware of Respondent’s Use of Force policy, which limited use of
force to a “last resort” and prohibited force as a form of punishment. The reason for
Petitioner’s attack on Walls was not inmate safety, institutional security, or some
other legitimate penological purpose; rather, Petitioner punched Walls as “some form
9
HARRIS V. N.C. DEP’T OF PUB. SAFETY
McGEE, C.J., concurring in part and dissenting in part
of retribution” for spreading feces in his cell. The majority places great weight on
various “mitigating factors” found by the ALJ including, inter alia: (1) Petitioner’s
good prior work history, including a “good working relationship with Walls;” (2) that
Petitioner was not working his regular shift; (3) the absence of bruising on Walls
thirty minutes after the assault; and (4) the fact that Walls was “walking erect,
smiling, and in no apparent distress” after the incident.
Given the testimony of three correctional officers, who unanimously testified
to Petitioner’s use of unwarranted physical force on an inmate, Petitioner’s prior work
history or prior “good working relationship” with Walls has little relevance to the
question of whether Respondent had just cause to terminate Petitioner. Regardless
of his past work history, I find Petitioner’s present acts troubling; Petitioner laid in
wait until Walls was in a known blind spot, approached and punched him in the
stomach as “some form of retribution” for spreading feces in his cell, found Walls’
physical response to being punched funny, and subsequently threatened violence
against another officer if that officer reported the incident. And while it appears to
me that Petitioner’s punch was of much greater force than the majority and the ALJ
believe – Officer Johnson testified that the force of the punch brought Walls to the
ground, and Officer Alexander characterized Walls as keeling over and shaking his
head – the force of Petitioner’s punch has little relevance to the just cause
determination in the present case.
10
HARRIS V. N.C. DEP’T OF PUB. SAFETY
McGEE, C.J., concurring in part and dissenting in part
Notwithstanding Petitioner’s positive performance reviews and his lack of
problems preceding this incident, I would hold that a single incident of intentionally
and maliciously punching a restrained and compliant inmate for no legitimate
penological purpose in violation of Respondent’s Use of Force policy amounts to
unacceptable personal conduct that provides just cause for termination, regardless of
the amount of force used.
Nearly all of North Carolina’s correctional officers endeavor on a daily basis to
ensure the public’s safety and undertake their duties in a professional manner, and
society calls on our correctional officers to make judgments to assure the safety and
security of the public and inmates alike. See Blackburn v. N.C. Dep’t of Pub. Safety,
___ N.C. App. ___, ___, 784 S.E.2d 509, 528 (2016) (noting that the “most important
‘job requirement’” of a correctional officer is “that of exercising good judgment in a
supervisory position of great responsibility”). Under the majority’s rationale, so long
as a correctional officer has maintained a positive work history and injures an inmate
in a way that does not leave physical markings, Respondent does not have just cause
to remove that officer from his or her position, a position of great trust and confidence.
Id.
III. Conclusion
I agree with the majority that an administrative law judge “owes no deference
to the agency’s conclusion of law that . . . just cause existed” for the action taken by
11
HARRIS V. N.C. DEP’T OF PUB. SAFETY
McGEE, C.J., concurring in part and dissenting in part
the agency, and that “[a]fter receiving and considering the evidence, and entering
findings of fact, an administrative law judge is free to substitute their judgment for
that of the agency as to the legal conclusion of whether just cause . . . existed for the
agency’s action.” However, I respectfully dissent from the majority’s reliance on the
standards of review in N.C.G.S. § 150B-51. Because judicial review is established for
cases of this type in “another statute” – namely, N.C.G.S. § 126-34.02 – I believe
N.C.G.S. § 150B-51 is not applicable to this case. I further dissent from the majority’s
application of Warren’s third prong, and would conclude that Petitioner’s actions
provided Respondent with just cause to terminate Petitioner for unacceptable
personal conduct. Therefore, I would reverse the decision of the ALJ.
12
Harris v. N.C. Dep't of Pub. SafetyÂ
Court: Court of Appeals of North Carolina
Date filed: 2017-03-07
Citations: 798 S.E.2d 127, 252 N.C. App. 94
Copy CitationsCombined Opinion