Opinion
No. COA09-1466
Filed 1 June 2010 This case not for publication
Appeal by Petitioner from order entered 8 April 2009 by Judge Ripley E. Rand in Superior Court, Wake County. Heard in the Court of Appeals 13 April 2010.
Warren R. Follum, petitioner-appellant, pro se. Attorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for respondent-appellee.
Wake County No. 08 CVS 15081.
"No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause." Unacceptable personal conduct constitutes just cause for dismissal. Because Petitioner, a career State employee, engaged in conduct unbecoming a State employee that was detrimental to State service, we affirm the trial court's decision to uphold Petitioner's dismissal for just cause.
N.C. Gen. Stat. § 126-35(a) (2009).
N.C. Admin. Code tit. 25, r. 1J.0604(b) (June 2008).
N.C. Admin. Code tit. 25, r. 1J.0614(i)(5) (June 2008) (defining "unacceptable personal conduct" to include "conduct unbecoming a state employee that is detrimental to state service").
In 1999, Warren Follum ("Petitioner"), was hired by North Carolina State University ("NCSU" or "Respondent") to work in the Office of the University Architect. In June 2005, NCSU re-organized several departments, including the Office of the University Architect. As a result, Michael Harwood ("Harwood") became the University Architect and Petitioner's direct supervisor.
On or about 14 December 2005, Harwood met with Petitioner to discuss a complaint lodged against Petitioner by Carol Woodyard ("Woodyard"), NCSU's Director of Construction Management. Woodyard's complaint centered on an email between Petitioner and a client concerning an ongoing construction project. After reading the email exchange, Harwood was concerned that Petitioner was placing unnecessary blame on co-workers and that doing so caused tension between the Office of Construction Management and the Office of the University Architect while also confusing the client as to the responsibilities of the two offices. Harwood explained to Petitioner that this sort of communication was unacceptable and admonished Petitioner not to send such "radioactive" emails.
Petitioner's communication skills were again at issue when Harwood received a complaint from Alex Miller, a client connected to the Thompson Theatre project for which Petitioner was the project manager. Based on the feedback from Mr. Miller, Harwood assigned the project to a different project manager.
On 28 July 2006, Petitioner led a meeting to discuss the Lee Hall parking lot construction project. Later, Harwood received a series of complaints from those in attendance at the meeting. After discussing the complaints with Petitioner, Harwood again admonished Petitioner to treat individuals professionally, courteously, and respectfully.
On 2 August 2006, Petitioner received a written warning issued in response to Petitioner's conduct at the 28 July 2006 meeting. According to the warning, Petitioner spoke in a loud voice and interrupted attendees of the meeting who attempted to speak. He also refused to allow some meeting attendees to complete their statements, dismissed advice that was offered, and made rude statements. After identifying Petitioner's underlying conduct, the warning stated Harwood's expectation that Petitioner "treat all customers and colleagues with courtesy, respect and professionalism." The warning further indicated that "[f]ailure to immediately comply with [this expectation] may result in further disciplinary action, up to and including termination."
Harwood met with Petitioner on 15 August 2006 to provide Petitioner his annual work plan and performance appraisal. Petitioner received an overall performance review of "Good." However, in the review, Harwood informed Petitioner that "[his] method of addressing issues alienates some colleagues or process partners" and that his behavior "is also an occasional source of tension and conflict with colleagues and other Facilities units." Harwood counseled Petitioner to exercise "patience in dealing with those that have differing opinions on project details."
Nonetheless, Petitioner's communication difficulties continued and Harwood received a complaint from a customer concerning the Biomanufacturing Training and Education Center ("BTEC") project. The customer complained that Petitioner was not providing requested information about the project's schedule or budget. Thereafter, Harwood removed Petitioner from the role of BTEC project manager. After his removal, Petitioner did not have any responsibility on the BTEC project. Despite his removal, Petitioner continued to request documentation from BTEC consultants while representing that these requests were on behalf of NCSU. As a result, the consultants reported to Harwood that they were confused as to which NCSU employee was the contact person for the project.
Additionally, Harwood learned that on 12 August 2006, Petitioner sent an email to Andy Snead ("Snead"), NCSU's Director of Design and Construction Services. In the email, Petitioner accused Snead of attacking him in an "unprovoked" and "uncontrollable rage" as well as threatening a vendor of NCSU.
Kevin MacNaughton ("MacNaughton"), Associate Vice Chancellor for Facilities, investigated the substance of the 12 August 2006 email. MacNaughton, who supervised both Harwood and Snead, determined that Petitioner's accusations were unsupported and that Petitioner acted inappropriately in sending the disruptive email.
Subsequently, upon becoming aware of these issues, Harwood issued a second written warning to Petitioner. The warning addressed in detail Petitioner's continued unacceptable conduct, which included his interference on the BTEC project and his accusatory email to Snead.
In November 2006, Carole Acquesta ("Acquesta") was transferred to the Office of the University Architect and began to supervise all of the project managers, including Petitioner. Acquesta received a written complaint in December 2006 from Tom Skolnicki ("Skolnicki"), NCSU's landscape architect, regarding his interaction with Petitioner during a Williams Hall comments review meeting. Upon receiving the complaint, Acquesta interviewed individuals, including Skolnicki, who attended the Williams Hall comments review meeting. From her interviews, Acquesta determined that Petitioner acted rudely and inappropriately towards Skolnicki. Thereafter, Acquesta made clear her expectations by meeting with Petitioner and memorialized the substance of her expectations in a memorandum dated 11 December 2006.
In spring 2007, Acquesta provided Petitioner with an interim performance review. Acquesta noted that "[Petitioner] has demonstrated difficulty in working collaboratively with colleagues and supporting the department with requested project information." Acquesta also wrote that Petitioner "needs to be more open to allow others to voice their opinions and to consider other ideas and alternatives." Petitioner denied the validity of these criticisms and denied that he needed to improve.
Acquesta also created a development plan for Petitioner. As part of this development plan, Petitioner was directed to enroll in training for effective communication by 1 March 2007. Petitioner denied that he had communication issues. As of 1 March 2007, Petitioner had neither enrolled in nor participated in any communication training.
In March 2007, Petitioner was project manager on the Winslow Hall renovation project. On 7 March 2007, Petitioner led a meeting to discuss the project. The Dean of the Graduate School, Terri Lomax ("Lomax"), attended the meeting along with Cindy Williford ("Williford"), who worked in the Office of the University Architect, and various representatives of an independent architectural design firm collaborating on the Winslow Hall project. Following the meeting, Acquesta received complaints from Lomax and Williford regarding Petitioner's behavior during the meeting. In response to the complaints, Acquesta interviewed Petitioner and the attendees of the meeting.
On 12 March 2007, Acquesta sent Petitioner a letter notifying him of a pre-dismissal conference to be held on 13 March 2007. In the letter, Acquesta advised Petitioner that he was being considered for dismissal based on the unacceptable personal conduct he exhibited during the 7 March 2007 Winslow Hall project meeting. Acquesta wrote in the pre-dismissal conference notice that Petitioner behaved inappropriately and rudely at the Winslow Hall meeting by speaking in a loud voice and refusing to allow the participants, including the dean of the school, to collaborate. Petitioner attended the pre-dismissal conference and was provided an opportunity to respond to the charges detailed in the 12 March 2007 notice. Petitioner did not accept responsibility for his actions. By letter dated 14 March 2007, Acquesta notified Petitioner that he was being dismissed for unacceptable personal conduct exhibited during the 7 March 2007 meeting.
On 12 April 2007, Petitioner filed a petition for a contested case hearing contending that NCSU discharged him without just cause and discriminated against him on the basis of his age and gender. An Administrative Law Judge ("ALJ") in the Office of Administrative Hearings ("OAH") held hearings on 30 October 2007 and 14 November 2007. At the close of the evidence, NCSU moved for a directed verdict as to Petitioner's discrimination claims. The ALJ issued a directed verdict in favor of NCSU, noting that Petitioner had failed to state a prima facie case of either gender or age discrimination. In a written order, the ALJ concluded that Petitioner's unacceptable personal conduct constituted just cause for his discharge. The State Personnel Commission ("SPC") received the official record from the OAH on 4 June 2008. The SPC adopted the decision of the ALJ. Pursuant to N.C. Gen Stat. § 150B-45, Petitioner filed a petition for judicial review in Superior Court, Wake County. On 8 April 2009, Judge Ripley E. Rand entered an order finding no error in the SPC decision and order.
On appeal, Petitioner argues that the trial court erred by upholding the agency's (I) conclusion that Petitioner had received sufficient notice of the grounds for his dismissal; (II) determination that there was sufficient evidence to support the conclusion that "just cause" existed for his termination; (III) conclusion that Petitioner had two active warnings against him prior to his dismissal; (IV) erroneous admission of a number of Respondent's exhibits; and (V) decision to uphold the ALJ's dismissal of Petitioner's claims of age and gender discrimination.
Preliminarily, we observe that when an appellate court reviews a Superior Court order upholding an agency decision, it "`examines the trial court's order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review, and, if appropriate, (2) deciding whether the court did so properly.'" ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). The proper standard for the Superior Court's judicial review "depends upon the particular issues presented on appeal." Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118.
If appellant argues the agency's decision was based on an error of law, then " de novo" review is required. If, however, appellant questions (1) whether the agency's decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the "whole record" test.
In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993). "` De novo' review requires a court to consider a question anew, as if not considered or decided by the agency." Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118. "The `whole record' test requires the reviewing court to examine all competent evidence (the `whole record') in order to determine whether the agency decision is supported by `substantial evidence.'" Id. "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion' and `is more than a scintilla or a permissible inference.'" Rector v. N.C. Sheriffs' Educ. and Training Standards Comm., 103 N.C. App. 527, 532, 406 S.E.2d 613, 616 (1991) (quoting Lackey v. Dep't of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982)).
I. Sufficiency of Notice
Petitioner first contends that the agency's decision was based on an error of law because the agency incorrectly concluded that Petitioner had received sufficient notice of the grounds for his dismissal. Because Petitioner alleged an error of law, the Superior Court was required to conduct a de novo review. See Kea v. Department of Health Human Servs., 153 N.C. App. 595, 603, 570 S.E.2d 919, 924 (2002) (finding a challenge to conclusion that petitioner received proper notice warranted de novo review), aff'd per curiam, 357 N.C. 654, 588 S.E.2d 467 (2003). The order of the trial court states that
[b]ased on consideration of the full administrative record, the Court concludes that, given that Petitioner was given pre-dismissal notice by way of a March 12, 2007, letter and a March 13, 2007, conference with respect to the conduct for which he was eventually discharged, Respondent provided Petitioner with legally sufficient "specific and descriptive" information to comply with N.C. Gen. Stat. § 126-35(a).
It is unclear, given the language of the order, whether the trial court considered this question anew, as required. However, we employ the appropriate standard of review without regard to that utilized by the trial court. Skinner v. N.C. Dep't of Corr., 154 N.C. App. 270, 279, 572 S.E.2d 184, 191 (2002) ("Although it is unclear whether or not the trial court in the instant case reviewed de novo those errors asserted by petitioner to be errors of law, we employ the appropriate standard of review regardless of that utilized by the reviewing trial court."). Accordingly, we review this issue de novo.
The applicable statute states in part:
No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause. In cases of such disciplinary action, 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.
N.C. Gen. Stat. § 126-35(a) (2009).
Petitioner is a career State employee entitled to pre-dismissal notice complying with this statutory mandate. Petitioner cites Employment Security Comm. v. Wells, 50 N.C. App. 389, 274 S.E.2d 256 (1981), as support for his argument that this case should be dismissed for lack of proper notice because his letter of dismissal did not allege "specific acts or omissions." Petitioner's reliance on Wells is misplaced.
It is uncontested that Petitioner is a career State employee by virtue of his continuous employment by NCSU in a permanent position appointment for more than 24 months preceding his dismissal. See N.C. Gen. Stat. § 126-1.1 (2009).
In Wells, the employee was given a letter that listed four grounds for dismissal but did not provide important details such as the names of people involved, the dates of his allegedly inappropriate conduct, or the location where the conduct took place. Id. at 392-93, 274 S.E.2d at 258-59. The Court interpreted G.S. 126-35 as imposing an affirmative duty on the employer to describe the events leading to the employee's dismissal with "sufficient particularity so that the discharged employee will know precisely what acts or omissions were the basis of his discharge." Id. at 393, 274 S.E.2d at 259. Reasoning that the notice given petitioner was insufficient, the Wells Court observed:
There was no way for respondent to locate these alleged violations in time or place, or to connect them with any person or group of persons. Furthermore, petitioner refused to correct the deficiency in its information by declining to furnish respondent with any further information upon respondent's request following the dismissal.
To require no more specificity in the notice than was given in this case would render the statute useless. An employee wishing to appeal his dismissal must be able to respond to agency charges and be able to prepare an effective representation. Respondent could do neither of these without more information than was supplied by petitioner in this case.
Id. at 393, 274 S.E.2d at 259.
The letter of dismissal that Petitioner received on 14 March 2007 alleged the underlying acts supporting his dismissal with sufficient particularity to enable him to respond to the charges and prepare his appeal. The letter references Petitioner's "conduct at the Winslow Hall project meeting on March 7, 2007" and states, inter alia, that Petitioner "behaved inappropriately . . . refused to allow the participants — including the dean of the school — to collaborate during the meeting . . . [and was] disrespectful by repeatedly interrupting others, not allowing attendees to complete their statements and dismissing advice that was offered."
After reviewing the record, we do not believe that Petitioner was unable to "locate these alleged violations in time or place, or connect them with any person or group of persons." Id. Instead, the letter, received less than a week after the incident in question, identified Petitioner's conduct toward a small group of people in attendance on a specific date at a particular meeting. We therefore find Petitioner's argument that he did not receive sufficient notice to be without merit.
II. "Just Cause" Determination
Petitioner next contends that there was insufficient evidence to support the conclusion that there was "just cause" for his termination. Specifically, Petitioner alleges that his conduct did not rise to the level of "unacceptable personal conduct" which warranted termination.
"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].'" N.C. Dep't of Env't Natural Res. v. Carroll, 358 N.C. 649, 665, 599 S.E.2d 888, 898 (2004) (quoting Sanders v. Parker Drilling Co., 911 F.2d 191, 194 (9th Cir. 1990), cert. denied, 500 U.S. 917, 114 L. Ed. 2d 101 (1991)). Because the first of these inquiries is a question regarding the sufficiency of the evidence to support a factual finding, the findings regarding the conduct alleged are reviewed under the whole record test. Id. The latter inquiry is a question of law, so the conclusion as to whether the employee's conduct constituted "just cause" for the disciplinary action taken is reviewed de novo. Id. at 665-66, 599 S.E.2d at 898.
In the instant case, the trial court addressed Petitioner's argument "in view of the entire record as submitted." The trial court concluded that there was "substantial evidence to support Judge Webster's Conclusion of Law No. 11 (as adopted by the State Personnel Commission) that Respondent met its burden of proving that it had just cause for discharging Petitioner from employment."
As an initial matter, we note that the trial court erred by failing to apply the proper two-step standard of review in this matter. However, "in cases appealed from administrative tribunals, the trial court's erroneous application of the appropriate standard of review does not automatically necessitate remand." Id. at 664, 599 S.E.2d at 897. The Carroll Court noted that an appellate court's "obligation to review for errors of law" in administrative cases can be met "`by addressing the dispositive issue(s) before the agency and the superior court' and determining how the trial court should have decided the case upon application of the appropriate standards of review." Id. at 664-65, 599 S.E.2d at 898 (quoting Capital Outdoor, Inc. v. Guilford County Bd. of Adjust., 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene, J., dissenting), rev'd per curiam for reasons stated in the dissent, 355 N.C. 269, 559 S.E.2d 547 (2002)). Accordingly, we first review the whole record to determine if there is substantial evidence that Petitioner engaged in the conduct alleged.
Petitioner's letter of dismissal stated that at the Winslow Hall Project meeting he "spoke in a loud voice, refused to allow the participants . . . to collaborate during the meeting [and was] disrespectful by repeatedly interrupting others, not allowing attendees to complete their statements and dismissing advice that was offered." The record includes testimony from Terri Lomax, the Dean of the Graduate School at NCSU, who attended the 7 March 2007 meeting and is referenced in the letter of dismissal. Dean Lomax testified that Petitioner repeatedly interrupted the meeting, admonished attendees, and became increasingly loud and rude as the meeting progressed. Dean Lomax also testified that the account in the dismissal letter accurately reflected what happened at the 7 March 2007 meeting. We accordingly conclude that there is substantial evidence in the record that Petitioner engaged in the conduct alleged.
However, Petitioner argues that his conduct did not rise to the level of unacceptable personal conduct. We review this issue de novo. The North Carolina Administrative Code defines "unacceptable personal conduct" as including "conduct unbecoming a state employee that is detrimental to state service." N.C. Admin. Code tit. 25, r. 1J.0614(i) (June 2008). Defendant relies on the decision in N.C. Dep't of Env't Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004), for the proposition that the merely "lashing out" at a coworker does not constitute unacceptable personal conduct. However, Carroll is distinguishable from the case sub judice.
In Carroll, the Court addressed the conduct of a state park ranger who "lashed out" at two police officers during a "momentary lapse in judgment." Id. at 675, 599 S.E.2d at 904. The incident took place while the ranger was using the phone in his office to talk to a nurse about his ill mother. According to the officers, who were attempting to speak with the ranger, they knocked on his office door multiple times and the ranger used profanity in telling them to wait until he was done with the call. Id. at 654-55, 599 S.E.2d at 892. The Court took special note of the attending circumstances, observing that the employee was under "extreme emotional distress" because of an emergency health concern involving his mother. Id. at 675, 599 S.E.2d at 904. The Court further noted that the two police officers both testified that they "did not take personal offense with anything [the employee] said or did." Id. Ultimately, after considering other relevant cases, the Court concluded that "`unacceptable personal conduct' implies misconduct of a much more serious nature than that alleged here." Id.
In contrast, Petitioner in this case did not demonstrate a "momentary lapse in judgment," but rather had repeatedly displayed, and been admonished for, the type of conduct for which he was eventually dismissed. Carole Acquesta testified that between November 2006 and March 2007, she received "probably around a dozen" complaints regarding Petitioner's behavior. Michael Harwood, who was Petitioner's supervisor prior to Acquesta, also testified that Petitioner demonstrated a "pattern of confrontations or conflicts with other individuals." Ultimately, Petitioner was dismissed for his actions on 7 May 2007. See Hilliard v. N.C. Dep't of Corr., 173 N.C. App. 594, 597, 620 S.E.2d 14, 17 (2005)("One act of [unacceptable personal conduct] presents `just cause' for any discipline, up to and including dismissal."). However, Petitioner's history of similar conduct makes clear that Petitioner's actions were not akin to the "momentary lapse in judgment" by the employee in Carroll who had worked "almost twenty years with no prior history of disciplinary actions against him." Carroll, 358 N.C. at 670, 599 S.E.2d at 901.
Furthermore, the circumstances surrounding Petitioner's conduct provided scant justification for his actions. There is no indication in the record that Petitioner acted under the influence of extreme emotional distress on 7 March 2007. There is, however, evidence in the record that those targeted by Petitioner's outbursts reacted negatively to his comments. For instance, Dean Lomax testified that after witnessing Petitioner's "incredibly unprofessional" conduct, she was "embarrassed for the University" and told Petitioner's supervisor that she had never been treated so rudely.
As recognized in Carroll, "there is no bright line test to determine whether an employee's conduct establishes `unacceptable personal conduct' and thus `just cause' for discipline." Id. at 675, 599 S.E.2d at 904. However, we consider the actions of Petitioner to have been more egregious than the conduct of the ranger in that case and to have risen to the level of conduct unbecoming a state employee. Additionally, the conduct was detrimental to state service. The testimony of Dean Lomax indicated that Petitioner's repeated outbursts during the 7 March 2007 meeting prevented the meeting from being productive. Also, Petitioner's demonstrated lack of communication skills rendered him unable to function effectively as a project manager, a position in which, as Acquesta testified, "effective communication is just absolutely necessary."
Having reviewed the record anew, we conclude that NCSU had just cause to terminate Petitioner. As such, Petitioner's argument to the contrary is without merit.
III. Status of Prior Warnings
Petitioner next argues that it was error to conclude that he had two active warnings against him prior to his dismissal. However, even assuming arguendo that this conclusion was reached erroneously, it is not dispositive of any issue presented by the case sub judice. Petitioner's argument is based on the misguided assumption that disciplinary action such as termination could not have been taken against him if he did not have "active" warnings in his personnel file. However, Petitioner was dismissed for "unacceptable personal conduct" rather than "unsatisfactory job performance." See N.C. Admin. Code tit. 25, r. 1J.0604(b) (June 2008) (noting that either "unacceptable personal conduct" or "unsatisfactory job performance" can serve as a basis "for the discipline or dismissal of employees under the statutory standard for `just cause'"). The procedures that must be followed prior to taking disciplinary action against an employee depend on the alleged basis of that disciplinary action.
Prior to dismissal for unsatisfactory job performance, a career State employee "must first receive two prior disciplinary actions [.]" N.C. Admin. Code tit. 25, r. 1J.0605(b) (June 2008). The employee is entitled to (1) one or more written warnings followed by (2) "a warning or other disciplinary action which notifies the employee that failure to make the required performance improvements may result in dismissal." Id. In contrast, an employee "may be dismissed for a current incident of unacceptable personal conduct, without any prior disciplinary action." N.C. Admin. Code tit. 25, r. 1J.0608(a) (June 2008). Dismissals for unacceptable personal conduct require only (1) a pre-dismissal conference between the employee and the person recommending dismissal, and (2) written notification of the specific reasons for the dismissal and the employee's right to appeal. N.C. Admin. Code tit. 25, r. 1J.0608 (June 2008); N.C. Gen. Stat. § 126-35(a) (2009); Kea, 153 N.C. App. at 603-04, 570 S.E.2d at 925. Because Petitioner was dismissed for unacceptable personal conduct, he was entitled only to a pre-dismissal conference and written notification.
Indeed, the Administrative Code makes clear that a supervisor is not required to issue written warnings detailing unacceptable personal conduct. N.C. Admin. Code tit. 25, r. 1J.0610(a) (June 2008) ("The supervisor may elect to issue a written warning for . . . unacceptable personal conduct."). Therefore, because Petitioner did receive written warnings detailing his prior unacceptable personal conduct, he benefitted from more notice than was required concerning the objectionable nature of his workplace conduct.
The record includes a letter, dated 12 March 2007, notifying Petitioner of the requisite pre-dismissal conference to be held on 13 March 2007 at 3:00 p.m. Petitioner's supervisor, Carole Acquesta, testified that she provided him with this letter in person. Acquesta, the individual recommending Petitioner's dismissal, further testified that she conducted a pre-disciplinary conference with Petitioner at which Petitioner was given the opportunity to respond to the allegations that he engaged in unacceptable personal conduct.
Furthermore, there is evidence in the record that Petitioner received the required notice of dismissal. Petitioner's notice of dismissal was entered into evidence. As detailed above, this notice stated with sufficient specificity the reasons for Petitioner's dismissal. The notice also stated:
In accordance with the university's Grievance Procedure, you have 15 workdays from receipt of this letter to appeal your dismissal to the Division of Human Resources. If alleging discrimination only, you may choose not to utilize the university's Grievance Procedure and appeal directly to the State Personnel Commission within 30 calendar days from receipt of this letter. All appeals to the State Personnel Commission must be filed with the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714; phone (919) 733-2698.
Attached to the notice, and also admitted into evidence, was a copy of the University SPA Grievance and Appeal Regulation.
In light of the abundance of evidence that the proper pre-dismissal procedure was followed, as well as the fact that Petitioner's grounds for challenging that procedure are based on a misinterpretation of the underlying law, we find Petitioner's challenge of the procedures followed before his termination to be without merit.
IV. Admission of Exhibits into Evidence
Petitioner next argues that a number of NCSU's exhibits were erroneously entered into evidence. While it is unclear what standard the trial court applied in reviewing this contention, because Petitioner assigns an error of law, we review the issue de novo. See Skinner, 154 N.C. App. at 279, 572 S.E.2d at 191.
The statute controlling the rules of evidence in the type of administrative hearing at issue sub judice states in part:
In all contested cases, irrelevant, immaterial and unduly repetitious evidence shall be excluded. Except as otherwise provided, the rules of evidence as applied in the trial division of the General Court of Justice shall be followed; but, when evidence is not reasonably available under the rules to show relevant facts, then the most reliable and substantial evidence available shall be admitted.
N.C. Gen. Stat. § 150B-29(a) (2009). Petitioner objected to each of the exhibits in question on the grounds that they were inadmissible hearsay. The Rules of Evidence prohibit the admission of hearsay that does not fall within a statutory exception. See N.C. Gen. Stat. § 8C-1, Rule 802 (2009). "Hearsay is defined as an out-of-court declaration offered for the purpose of proving the truth of the information contained in the declaration." State v. Jones, 347 N.C. 193, 216, 491 S.E.2d 641, 655 (1997); N.C. Gen. Stat. § 8C-1, Rule 801 (2009).
All but one of the exhibits at issue were ostensibly admitted into evidence because they were not hearsay. Specifically, NCSU argued that these exhibits were insulated from Petitioner's objection because they were offered into evidence to "explain[] the subsequent conduct of the decision-makers in this present case." "When offered to explain the subsequent conduct of the person to whom the declaration was made, an out-of-court declaration is not considered hearsay." Jones, 347 N.C. at 216, 491 S.E.2d at 655. Thus, to the extent that the ALJ admitted the exhibits and considered them for this limited purpose, there was no error.
NCSU argued in the alternative that the exhibits were admissible to show that Petitioner had notice that certain types of behavior referenced in the exhibits "would not be accepted." However, there was no indication that, prior to his dismissal, Petitioner had the opportunity to view the emails and investigative notes at issue. We decline to hold that exhibits which Petitioner did not view were admissible to show he had notice of their contents.
We also note that Petitioner devotes his entire argument regarding this issue to the contention that the exhibits should not have been admitted into evidence but makes no mention of how their admission affected his case. The Rules of Evidence clearly state that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]" N.C. Gen. Stat. § 8C-1, Rule 103(a) (2009). In interpreting this Rule, this Court has stated that when considering a challenge to the admission of evidence alleged to be hearsay, "[t]he burden is on the appellant to not only show error, but also to show that he was prejudiced and a different result would have likely ensued had the error not occurred." Suarez v. Wotring, 155 N.C. App. 20, 30, 573 S.E.2d 746, 752 (2002).
Petitioner failed to show that a different result was likely had the challenged exhibits been excluded from evidence. We are reminded that the only "results" reached in this case were the conclusions that NCSU had just cause to terminate Petitioner and that Petitioner had failed to state a prima facie case in either of his discrimination claims. As noted above, because Petitioner was discharged for "unacceptable personal conduct," all that was necessary to conclude that there was "just cause" for his termination was proof of a single incident of improper conduct. Nevertheless, a number of the challenged exhibits concern Petitioner's conduct in the months and years preceding the event which ultimately led to his dismissal.
For instance, the first exhibit in question is Respondent's Exhibit 1, an email sent from Carol Woodyard to Mike Harwood, in which Woodyard complains about an email sent by Petitioner in December 2005. The subject of the exhibit is Petitioner's conduct more than a year before the incident justifying Petitioner's termination. Furthermore, during his testimony Harwood not only summarized the email but quoted therefrom and discussed his reaction to the email as well as his subsequent meeting with Petitioner concerning the objectionable conduct cited in the email. Petitioner neither objected to this testimony nor moved to strike it from the record. Thus, even if the exhibit were not entered into evidence, it would not have been more likely that the ALJ would have found an absence of "just cause" for Petitioner's termination, particularly given that evidence of the contents of the exhibit was already entered into the record.
Petitioner also contends that the ALJ erred by admitting into evidence two exhibits discussing the conduct which ultimately resulted in the issuance of a written warning to Petitioner on 25 August 2006. The first is Respondent's Exhibit 6, consisting of a series of emails sent among Mike Harwood, Kevin MacNaughton, and Dianne Sortini discussing the investigation of and appropriate response to Petitioner's conduct. Again, the incident discussed in the emails was not that for which Petitioner was dismissed. In addition, Harwood testified at length about Petitioner's underlying conduct without objection. Also, McNaughton testified about his investigation and conclusions without objection. Thus, even had Exhibit 6 been excluded, it is not more likely that a different result would have been reached.
Relatedly, Petitioner also alleges error in the admission of Respondent's Exhibit 8, a summary of the investigation undertaken by Kevin MacNaughton concerning the 12 August 2006 email sent by Petitioner to a coworker. Here again, the incident motivating McNaughton's investigation was not that for which Petitioner was ultimately dismissed. Moreover, McNaughton testified as to Petitioner's underlying conduct, the details of his investigation into this conduct, and the conclusion that he ultimately reached. Thus, there was again evidence in the record that would have alleviated any potential prejudice that Petitioner might have suffered from the admission of Exhibit 8 into evidence.
Petitioner further contends that it was error to admit two exhibits discussing his conduct at the Williams Hall Comments Review meeting. Respondent's Exhibit 13 is a memorandum sent from Tom Skolnicki to Carole Acquesta concerning that meeting. Once more, this exhibit says nothing about the conduct for which Petitioner was ultimately terminated. Also, Petitioner did not object when Acquesta testified as to the content of the memorandum and her subsequent meeting with Petitioner to discuss the underlying conduct. In light of this uncontested testimony, we cannot say that a different result would have been reached if Exhibit 13 had been excluded.
Petitioner further contends that it was error to admit Respondent's Exhibit 14, consisting of the handwritten notes of Carole Acquesta documenting her investigation of the events which occurred at the Williams Hall meeting. However, Acquesta testified without objection as to her investigation into these events and what she learned from those questioned. As such, even if her notes were excluded, it is not more likely that a different result would have been reached.
Three of the contested exhibits do refer to the actions which resulted in Petitioner's dismissal. The first is Respondent's Exhibit 17, an email from Cindy Williford to Carole Acquesta regarding Petitioner's conduct at the Winslow Hall meeting. Respondent's Exhibit 19 consists of the handwritten notes of Acquesta documenting her meeting with Cindy Williford about the Winslow Hall meeting. Respondent's Exhibit 21 consists of the handwritten notes of Acquesta documenting her phone conversation with Charles Nickelson about the Winslow Hall meeting. Having concluded above, based on witness testimony, that the record includes substantial evidence from which to find that Petitioner engaged in "unacceptable personal conduct" at the Winslow Hall meeting, we decline to find that without the Exhibits 17, 19, or 21, it would have been more likely that the ALJ would have found an absence of "just cause" to dismiss Petitioner.
The last exhibit that Petitioner contends was erroneously admitted is Respondent's Exhibit 2. We treat this assignment of error separately because the ALJ accepted the exhibit not because it was non-hearsay, but rather because it was admissible under the business records exception to the hearsay rules. Respondent's Exhibit 2 is a collection of five emails sent to Harwood from various NCSU employees recounting Petitioner's behavior at the meeting on the Lee Parking lot project. This behavior was ultimately the basis of Petitioner's 2 August 2006 warning. Petitioner objected to the admission of one of the emails on the grounds that it was hearsay. The trial court overruled the objection, telling Petitioner "you can renew your motion if there's an attempt to introduce it into evidence." As the testimony about the email continued, Petitioner again objected, NCSU claimed the email fell within the business records exception to hearsay, and the ALJ said he would wait to rule on the admissibility of the evidence until later in the trial. Ultimately, the trial court accepted this exhibit without specifically ruling on Petitioner's objection. To the extent that the ALJ admitted this email chain under the business records exception, we find error apparent.
Under the business records exception, the following items of evidence are admissible at trial:
[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
N.C. Gen. Stat. § 8C-1, Rule 803(6) (2009).
In this case, regarding the email chain in question, we find that NCSU failed to lay a sufficient foundation to warrant the acceptance of the exhibit under the proffered exception to the prohibition against hearsay. It would strain the language of the Rules of Evidence to construe a finite series of emails concerning a single employee's conduct during a specific event to be the type of record "kept in the course of a regularly conducted business activity."
However, as with the exhibits discussed above, Petitioner has failed to identify how he was prejudiced by the admission of Respondent's Exhibit 2. NCSU's witness Greg Cain, who attended the meeting on the Lee Parking Lot project, testified thoroughly as to his observations of Petitioner's conduct. Thus, even if exhibit 2 had been excluded, the same factual support for Petitioner's dismissal would have entered the record through NCSU's witness.
In sum, because Petitioner has not shown that it was likely that a different result would have been reached in this matter if the challenged exhibits had been excluded from evidence, we find Petitioner's argument to be without merit.
V. Petitioner's Discrimination Claims
Finally, Petitioner alleges that the ALJ erred by dismissing Petitioner's claims of age and gender discrimination on NCSU's motion for directed verdict. Petitioner argues that it was improper to dismiss his discrimination claims because he had presented a prima facie case of discrimination based on both age and sex. Because Petitioner alleges an error of law, the Superior Court was required to consider this issue de novo. McCrary, 112 N.C.App. at 165, 435 S.E.2d at 363. However, there is no affirmative mention in the trial court's order of the standard of review that it applied in considering Petitioner's argument. Indeed, other than stating broadly that "[t]he Decision of the State Personnel Commission was not affected by other error of law," there is no indication in its order that the trial court specifically considered this contention prior to affirming the SPC's decision. Nonetheless, we consider Petitioner's argument de novo and find it to be without merit.
Our Supreme Court has adopted the standard used by the United States Supreme Court in proving discrimination. Dept. of Correction v. Gibson, 308 N.C. 131, 136-37, 301 S.E.2d 78, 82 (1983) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1973)). Under this standard,
(1) The claimant carries the initial burden of establishing a prima facie case of discrimination.
(2) The burden shifts to the employer to articulate some legitimate nondiscriminatory reason for the applicant's rejection.
(3) If a legitimate nondiscriminatory reason for rejection has been articulated, the claimant has the opportunity to show that the stated reason for rejection was, in fact, a pretext for discrimination.
Id. at 137, 301 S.E.2d at 82. The Gibson Court further stated that the burden of establishing a prima facie case is "not onerous" and that a prima facie case "may be established in various ways." Id. The Court also clarified that
[t]he showing of a prima facie case is not equivalent to a finding of discrimination. Rather, it is proof of actions taken by the employer from which a court may infer discriminatory intent or design because experience has proven that in the absence of an explanation, it is more likely than not that the employer's actions were based upon discriminatory considerations.
Id. at 138, 301 S.E.2d at 83 (internal citation omitted).
This Court has stated:
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.
N.C. Dep't of Crime Control Pub. Safety v. Greene, 172 N.C. App. 530, 538, 616 S.E.2d 594, 600-01 (2005) (internal citations and quotations omitted). Although the case at bar involves alleged discrimination in a termination decision, rather than a hiring decision, we rely on Greene for the basic proposition that establishing a prima facie case of age discrimination first requires proof that Petitioner is a member of the protected class because of his age.
Petitioner argues that his application for employment at NCSU "clearly shows that petitioner was born in 1946 and at the time of his dismissal in March 2007, he was 61 years old." In fact, the application does not include his date of birth. Instead, Petitioner asks this Court to calculate his age by assuming he was eighteen when he entered college, assuming that he graduated in four years, and adding those twenty-two years to the years of subsequent work history documented in his application. We decline to engage in such conjecture. However, we note that on Petitioner's application, there is a section wherein he indicates that he is not required to be registered with the Selective Service because he "was born before 1960." Based on this evidence, Petitioner can arguably establish that he is a member of the protected class.
However, without a more exact indication of Petitioner's age, this Court cannot conclude that his termination arose under "circumstances giving rise to an inference of unlawful discrimination." See Greene, 172 N.C. App. at 538, 616 S.E.2d at 600. As indicated in Greene, such an inference is based on a comparison of the ages of the Petitioner and another employee treated more favorably. Id.; see also O'Connor v. Consol. Coin Caterers, 517 U.S. 308, 313, 134 L. Ed. 2d 433, 439 (1996)("In the age-discrimination context, such an inference cannot be drawn from the replacement of one worker with another worker insignificantly younger."). Without more accurate information regarding Petitioner's actual age, we cannot conduct this comparison and thus conclude that Petitioner failed to establish a prima facie case of age discrimination.
Our de novo review of the record also indicates that Petitioner failed to establish a prima facie case of gender discrimination. To present a prima facie case, Petitioner must show "(1) that he is a member of a protected class, (2) that he was subject to an adverse employment decision, (3) that he was qualified for the position, and (4) that he was treated differently than a similarly situated individual outside the protected class." Vickers v. Fairfield Medical Center, 453 F.3d 757, 762 (6th Cir. 2006). There is no dispute as to the first two prongs, as males are a protected class and termination constitutes an adverse employment action.
Furthermore, under this Court's interpretation of the third prong, Petitioner is qualified for the position. Petitioner" `need not show perfect performance or even average performance to satisfy this element. He need only show that his performance was of sufficient quality to merit continued employment, thereby raising an inference that some other factor was involved in the decision to discharge him.'" Area Mental Health Authority v. Speed, 69 N.C. App. 247, 253, 317 S.E.2d 22, 26 (1984) (quoting Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1283 (7th Cir. 1977).
However, Petitioner has failed to present evidence that he was treated differently than a similarly situated female. To establish that an employee is similarly situated to him, Petitioner must demonstrate that he is "similarly situated to the [claimed comparator] in all relevant respects." Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998) (emphasis omitted). Although Petitioner makes claims of disparate treatment of female employees, he has shown no evidence that any of these employees demonstrated the pattern of objectionable interpersonal conduct for which Petitioner was eventually terminated. We decline to assume "it is more likely than not that [Respondent's] actions were based upon discriminatory considerations" when, as our review of the record indicates, there were reasons unrelated to Petitioner's sex that motivated his dismissal. See Gibson, 308 N.C. at 138, 301 S.E.2d at 83.
Having reviewed each of Petitioner's arguments on appeal, we find them to be without merit and accordingly, the decision of the Superior Court in this matter is
Affirmed.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).