Opinion
No. 07-944.
Filed 5 August 2008.
Wake County No. 05 CVS 12349.
Appeal by petitioner from judgment entered 17 April 2007 by Judge A. Leon Stan back, Jr. in Wake County Superior Court. Heard in the Court of Appeals 20 February 2008.
Schiller Schiller, PLLC, by David G. Schiller, for petitioner-appellant. Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Thomas J. Ziko, for respondent-appellee.
Agnes Louise Mankes ("petitioner") appeals from a superior court judgment concluding that she was not entitled to any relief pursuant to her dismissal by employer North Carolina State Education Assistance Authority, Guaranty Services Division ("the Authority" or "respondent"). After careful review, we affirm.
I.
In 2000, the Authority hired petitioner to work in its Health, Education and Welfare Division. In 2001, petitioner was promoted from Processing Assistant III to Processing Assistant V and began working in a different department of the same division. While in that position, the Authority issued her three letters of discipline. Petitioner was transferred from that division to the Authority's Guaranty Agency Services Division in October 2003 and demoted to Processing Assistant IV, where her role would involve processing borrowers' accounts. Petitioner did not show up to begin work until January 2004, after she was notified that if she did not show up to work she would be terminated.
On 21 January 2004, petitioner's first day of work, she met with two supervisors for an extended orientation. Petitioner was also provided with a number of training manuals, including a procedures and policy manual and a manual for Galahad, the software system used by the Authority to track accounts. On 28 January 2004, petitioner left work early without notifying a supervisor, and on 5 February 2004, the Authority issued her a written warning that petitioner could be terminated if such behavior occurred again.
By mid-February 2004, petitioner was asked by her supervisor, Je'Neise Harris, to begin handling borrower accounts on her own. Shortly thereafter, Ms. Harris noticed that petitioner was not performing her work adequately or accurately.
On 26 February 2004, Ms. Harris and the department director held a pre-dismissal conference with petitioner to give her an opportunity to respond. At this meeting, the issues that had come up during petitioner's time at the department were discussed, including discussion of specific accounts. After the meeting, Ms. Harris and the director agreed that petitioner had too many errors and had failed to accept responsibility for those errors. As such, on 1 March 2004, Ms. Harris sent petitioner a letter of dismissal detailing the reasons for the dismissal and explaining petitioner's right to appeal.
Petitioner appealed the decision to the Office of Administrative Hearings. An administrative law judge heard the case and concluded that the Authority had just cause to dismiss petitioner. The State Personnel Commission adopted the judge's findings and conclusions. Petitioner then appealed that ruling to Wake County Superior Court. On 17 April 2007, a superior court order was issued adopting the decision and order of the State Personnel Commission. Petitioner appeals that ruling to this Court.
II. A.
Per the North Carolina Administrative Code:
In order to be dismissed for a current incident of unsatisfactory job performance an employee must first receive at least two prior disciplinary actions: First, one or more written warnings followed by a warning or other disciplinary action which notifies the employee that failure to make the required performance improvements may result in dismissal.
25 N.C.A.C. 1J.0605(b) (2006). Petitioner argues that the administrative law judge who held the initial hearing on her dismissal erred by not allowing her to present evidence that she did not receive any such warnings before receiving the dismissal letter. As this is a question of law, we review it de novo. See N.C. Gen. Stat. § 150B-52 (2007); N.C. Dep't of Env't Natural Res. v. Carroll, 358 N.C. 649, 665, 599 S.E.2d 888, 898 (2004).
Petitioner argues that she should be able to present evidence about her demotion because it is the first item listed in the letter of dismissal. Petitioner seems to be arguing that the demotion constituted one of the two warnings required by the code quoted above. Essentially, however, petitioner is attempting to appeal the demotion, something she may not do at this time. That demotion occurred on 17 October 2003, and petitioner did not file an appeal at that time. She has therefore lost her right to appeal that decision. The issue before this Court is her dismissal, and therefore the validity of her dismissal letter; the facts and circumstances behind the two prior warnings mentioned in the dismissal letter are not before us. As such, we overrule this assignment of error.
We note that a small portion of petitioner's argument to this Court is in the guise of a denial of due process under our state constitution. See N.C. Const. art. I, § 19. There, she claims that "[t]he prior written warnings are part and parcel of the basis of the Authority's dismissal of Ms. Mankes[,]" and therefore evidence must be heard on it. This is a mischaracterization of the warnings. The prior warnings are not part of the issue to be settled requiring that evidence be presented to elucidate them; rather, they are themselves evidence in a determination regarding her dismissal. Further, as this Court stated in Owen v. UNC-G Physical Plant, 121 N.C. App. 682, 468 S.E.2d 813 (1996), our Legislature enacted N.C. Gen. Stat. § 126-35(a) in order to create a higher standard of due process than that required by the United States Constitution. Id. at 686-87, 468 S.E.2d at 816-17; see also State v. Smith, 90 N.C. App. 161, 163, 368 S.E.2d 33, 35 (1988) (noting that the due process clause of the federal constitution and art. I, § 19 of our state constitution "are synonymous"), affirmed per curiam, 323 N.C. 703, 374 S.E.2d 866, cert. denied, 490 U.S. 1100, 104 L. Ed. 2d 1007 (1989). As such, our analysis under the statute involves a higher standard than general due process requires.
B.
Petitioner next argues that the court erred in upholding the administrative law judge's failure to conclude that the Authority's dismissal letter failed to meet the specificity requirement of N.C. Gen. Stat. § 126-35. Again, we review de novo. N.C. Dep't of Env't Natural Res., 358 N.C. at 659, 599 S.E.2d at 894-95.
N.C. Gen. Stat. § 126-35(a) (2007) mandates that, where disciplinary action is taken against a career state employee, "the employee shall, before the action is taken, be furnished with a statement in writing setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employee's appeal rights." Petitioner argues that the instances of unacceptable personal conduct and performance in the letter of dismissal do not meet this requirement because they do not state borrowers' names, the dates the instances occurred, or "exactly what the specific work deficiencies were." This argument is without merit. The letter of dismissal, dated 1 March 2004, listed the following instances of "unacceptable personal conduct as well as unsatisfactory performance" that had taken place since petitioner's 5 February 2004 written warning:
We note that while petitioner's letter of dismissal states that both "unacceptable personal conduct as well as unsatisfactory performance" were the bases for her dismissal, both parties — particularly petitioner — essentially ignore the "unacceptable personal conduct" portion and argue almost exclusively as to "unsatisfactory performance." As a result, we have done the same. Petitioner does obliquely argue the "unacceptable personal conduct" angle at this point, however, in the following manner: Petitioner argues that respondent produced no written rule prohibiting the conduct complained of. However, 25 N.C.A.C. 1J.0614(i)(4) (2006) states that unacceptable personal conduct includes "the willful violation of known or written work rules" (emphasis added). From the record, it is clear petitioner knew about the rule (Ms. Harris spoke to petitioner about the conduct at least twice before petitioner was dismissed) and that she was at least at one point notified of it in writing (in the warning letter to petitioner prior to the dismissal letter).
1 * Not following designated procedures regarding the prohibition of printing and photocopying of borrower computer records, and the resulting? improper use of those hardcopy records.
2 * Not working your assigned tickler accounts accurately.
3 * Not making adequate, documented telephone calls to borrowers.
4 * Improperly working borrower accounts that have not been assigned to you.
5 * Not following designated procedures regarding letter requests for borrowers applying for total and permanent disability discharges.
6 * Not following designated procedures regarding the prohibition against the recording of borrower Social Security Numbers in your personal, unauthorized work journal.
The letter also mentions a pre-dismissal conference conducted on 26 February 2004 during which specific examples of the above-listed behavior were provided to petitioner.
Petitioner's sole legal argument is that this letter's reasons for dismissal were "vague criticisms" that did not provide the legally required "sufficiently particular description of the `incidents [supporting disciplinary action] . . . so that the discharged employee will know precisely what acts or omissions were the basis of his discharge.'" Owen, 121 N.C. App. at 687, 468 S.E.2d at 817 (emphasis omitted; citation omitted). Petitioner argues that the statements in her dismissal letter are similar to those held not sufficiently specific and descriptive in two of this Court's previous cases. Both cases are distinguishable.
Petitioner first cites to Employment Security Comm. v. Wells, 50 N.C. App. 389, 392-93, 274 S.E.2d 256, 258-59 (1981), where the petitioner-employer gave respondent-employee four general reasons for his dismissal (such as "Violated Agency Procedure by not reporting illegal aliens") with no reference to names, dates, or specific instances of the conduct described. This Court held these reasons were too vague to give the employee notice of why he was being dismissed. Id. at 393-94, 274 S.E.2d at 259. However, this case is distinguishable in two key respects: First, in Wells, the only notice the employee had as to the reasons for his dismissal were those in the letter; he received no earlier written or oral notice of the unacceptable conduct. Id. at 393, 274 S.E.2d at 259. Second, the employee in Wells requested that such specific information be provided, and the state refused to provide it. Id. In the case at hand, petitioner was given notice both in writing and orally prior to this letter of dismissal, and specific instances of the complained-of conduct were provided at an earlier meeting.
In the other case cited by petitioner, the respondent-employer gave two reasons for the petitioner-employee's dismissal, and both described specific incidents that occurred on specific dates. Owen, 121 N.C. App. at 683-84, 468 S.E.2d at 815. However, both made reference to accusations made by "employees": "[E]mployees had complained[,]" "you began to talk with employees[,]" "[y]ou have also told employees," "attempts to intimidate employees[,]" etc. Id. at 684, 468 S.E.2d at 815. This Court noted that "not a single allegation specifically named her accuser[,]" preventing her from identifying the incidents at issue, and therefore from preparing an appropriate defense. Id. at 687, 468 S.E.2d at 817. There, however, the only reasons justifying the employee's dismissal related to her conduct toward other employees; the identity of those individuals was therefore a vital piece of information. In the case at hand, the reasons given for petitioner's dismissal were her own conduct, specific examples of which were given to petitioner by Ms. Mankes.
Further, petitioner in this case was in the employ of this department for a total of six weeks — from 21 January to 1 March — and began receiving disciplinary notices on 5 February, two weeks after she began work. The above-listed types of unacceptable conduct are specific enough that, along with the information provided in the several prior warnings, petitioner should certainly have known to what the specific instances referred. We overrule this assignment of error.
C.
N.C. Gen. Stat. § 126-35(a) states: "No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause." Petitioner's final argument is that the court erred in upholding the administrative law judge's conclusion that the authority had "just cause" to dismiss petitioner from employment.
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 that conduct constitutes just cause for [the disciplinary action taken]." . . . Because the latter inquiry is a question of law, the SPC's conclusion as to whether the employee's conduct gave rise to "just cause" for the disciplinary action taken is reviewed de novo.N.C. Dep't of Env't Natural Res., 358 N.C. at 665-66, 599 S.E.2d at 898 (citations omitted; alteration in original). Petitioner does not dispute whether she engaged in the conduct complained of; she argues to this Court only that it does not constitute "just cause." We therefore need only review the lower court's conclusion that just cause did exist, which we do de novo.
Petitioner makes arguments as to each of the six items in the bulleted list above, which we reproduce here:
7 * Not following designated procedures regarding the prohibition of printing and photocopying of borrower computer records, and the resulting? improper use of those hardcopy records.
8 * Not working your assigned tickler accounts accurately.
9 * Not making adequate, documented telephone calls to borrowers.
10 * Improperly working borrower accounts that have not been assigned to you.
11 * Not following designated procedures regarding letter requests for borrowers applying for total and permanent disability discharges.
12 * Not following designated procedures regarding the prohibition against the recording of borrower Social Security Numbers in your personal, unauthorized work journal.
We consider each in turn.
As to the first, regarding improper photocopying, petitioner argues that the printing did not in fact cause any problems in the department. However, her supervisor, Ms. Harris, testified that petitioner "was regularly printing mass volumes of information about borrowers which was stopping my counselors from doing their reports. . . . [P]lus it was slowing up productivity with the other counselors." Further, although petitioner states she was doing so to "aid her in learning her new position," Ms. Harris testified that petitioner began this voluminous printing early on — specifically, the week before she took on her own accounts. This finding of fact is, therefore, based on the testimony of petitioner's direct supervisor, the person in the best position to know how this behavior was affecting the office as a whole. This argument is therefore without merit.
As to the second and third points, regarding petitioner's failure to properly work her tickler accounts or make "adequate, documented telephone calls to borrowers[,]" petitioner argues that the tickler system was complex and that both of these reasons were only produced after petitioner was dismissed as post hoc justification of that action. However, the record reflects copious evidence that these problems were noted by Ms. Harris during petitioner's employment. Ms. Harris testified as follows: After Ms. Harris asked petitioner to start handling her own accounts, she noticed and reported to her own supervisor that petitioner was not adequately or accurately working through the accounts on her tickler; rather than working this list, petitioner was spending her time printing and copying screens; and in monitoring petitioner's phone calls in her role as supervisor, Ms. Harris noted several times that petitioner was not on the telephone at all when she should have been making calls to borrowers.
Petitioner's argument that these reasons were created post hoc is based on one piece of Ms. Harris's testimony: When asked about the errors petitioner had made, she stated, "[t]hese errors that we are showing that are in this exhibit book have come up after that." Petitioner argues this shows that neither Ms. Harris nor others at the Authority knew about petitioner's issues before her dismissal. However, Ms. Harris went on to state that they were aware of errors, but did not have "a whole list" of them before the trial. She also stated that since petitioner's dismissal they have found further errors because all of petitioner's work had to be redone; those errors, combined with those previously discovered, have shown petitioner's mistakes to be to an extent to which Ms. Harris was not aware. This argument, therefore, is without merit.
As to the fourth reason, improperly working borrower accounts that did not belong to her, petitioner first argues that this entry is unclear in that it could mean either that (a) she worked accounts that did not belong to her, which was a mistake, or (b) in working others' accounts, which was correct procedure, she performed poorly. Regardless, however, there is ample evidence in the record that both are true here. As to the first, petitioner argues that her supervisors gave conflicting testimony as to her responsibility for others' accounts: Ms. Harris testified that petitioner should have worked the calls, and the director of the department testified that she should not. However, Ms. Harris actually testified that when a call came in on an account that was not petitioner's, if the person who was handling that account was away from her desk or at lunch, whoever answered the phone was responsible for fielding that call. The director testified that petitioner was attempting to work an entire account herself instead of passing information on to the person assigned to that account. That these two statements pertain to different situations is obvious from a cursory reading of the transcript. As to the second possibility, Ms. Harris testified that petitioner made errors in handling calls for co-workers' accounts, and when her co-workers attempted to talk to her about the errors, she refused to discuss them. Thus, ample evidence of both mistakes exists in the record, and this argument is without merit.
As to the fifth reason, "following designated procedures regarding letter requests for borrowers applying for total and permanent disability discharges[,]" petitioner argues that this reflects an isolated incident that resulted in no actual loss to the Authority, and as such was not grounds for her dismissal. The incident supporting this reason is petitioner's entering a code that would have caused to be generated a letter discharging a debt of close to $6,000.00 instead of a letter providing the borrower with a form to request consideration for such a discharge. The letter was not actually generated or sent out apparently due to another error by petitioner. While no money was lost by the Authority due to this error, it is certainly a significant error that could easily have resulted in thousands of dollars lost to the Authority. This argument is therefore without merit.
As to the sixth and final reason, recording borrowers' social security numbers in a private journal, petitioner argues that the journal assisted her in learning her duties, and if the Authority had been genuinely worried about keeping the information secure, they would not have introduced borrowers' information into the record. However, as the Authority notes, their introducing this information into evidence does not negate the fact that petitioner continued to record the numbers after being specifically told to stop doing so. This could well be considered insubordination, as it is "[t]he willful failure or refusal to carry out a reasonable order from an authorized supervisor." 25 N.C.A.C. 1J.0614(h). "Insubordination is considered unacceptable personal conduct for which any level of discipline, including dismissal, may be imposed without prior warning." Id. This argument is therefore without merit.
Because petitioner has not shown that just cause did not exist, we overrule this assignment of error.
III.
Because petitioner has not shown that the superior court committed reversible error, we affirm.
Affirmed.
Judges BRYANT and JACKSON concur.
Report per Rule 30(e).