McAdams v. NC Dept. of Transportation

<bold>1. Public Officers and Employees — dismissal of</bold> <bold>state employee — personal misconduct — final</bold> <bold>agency decision</bold> <block_quote> The trial court did not err in a case involving the dismissal of a state employee for personal misconduct by determining that the ALJ's recommended decision became the final decision of the State Personnel Commission under N.C.G.S. § <cross_reference>150B-44</cross_reference>, because:<page_number>Page 216</page_number> (1) after failing to reach a majority vote during its 20 February 2003 meeting, the Commission issued a Memorandum of Consideration on 1 April 2003, and absent any findings of fact or conclusions of law, the Memorandum of Consideration cannot be considered a final decision under N.C.G.S. § <cross_reference>150B-36</cross_reference>(b); (2) in order to protect petitioner dismissed employee from unreasonable delay, N.C.G.S. § <cross_reference>150B-44</cross_reference> provided petitioner the remedy of making the ALJ's recommended decision the final decision of the agency so the administrative appeals process could continue; and (3) this situation, in which an administrative agency failed to issue a final decision within the statutorily prescribed period, is the situation N.C.G.S. § <cross_reference>150B-44</cross_reference> was intended to remedy.</block_quote> <bold>2. Administrative Law — whole record review —</bold> <bold>de novo review — dismissal of state employee</bold> <block_quote> The trial court did not err in a case involving the dismissal of a state employee for personal misconduct by using the whole record standard of review instead of reviewing the matter de novo, because: (1) in cases where petitioner contends the agency decision was not supported by substantial evidence, the whole record test is the proper standard of review, and the first ground for relief in his petition stated that the ALJ's findings of fact and conclusions of law were not supported by evidence in

<bold>1. Public Officers and Employees — reinstatement</bold> <bold>to former position — Whistleblower Act — employee</bold> <bold>grievance matters</bold> <block_quote> The trial court did not err by concluding the Whistleblower Act does not apply to plaintiff employee's 1998 suit seeking reinstatement to his former position even though plaintiff contends it constitutes reporting to "another appropriate authority" the violation of a rule or regulation under the Whistleblower Act, because: (1) the lawsuit did not concern matters affecting general public policy; (2) the definition of a protected activity is<page_number>Page 111</page_number> not extended to individual employment actions that do not implicate broader matters of public concern; and (3) the General Assembly did not intend N.C.G.S. § <cross_reference>126-84</cross_reference> to protect a State employee's right to institute a civil action concerning employee grievance matters.</block_quote> <bold>2. Public Officers and Employees — unlawful retaliation</bold> <bold>and discrimination — legitimate nonretaliatory reasons</bold> <block_quote> The trial court did not err by granting summary judgment in favor of defendant employer North Carolina Department of Transportation (NCDOT) based on its conclusion that there was no genuine issue of material fact in a suit where plaintiff employee alleged unlawful retaliation and discrimination by NCDOT based on plaintiff's reporting and litigating unlawful and improper actions and seeking injunctive relief, damages, payment of back wages, full reinstatement of fringe benefits, costs, and attorney fees, because: (1) assuming arguendo that plaintiff engaged in a protected activity, NCDOT presented legitimate nonretaliatory reasons for all of the actions it has taken; and (2) plaintiff acknowledged in his deposition testimony that there were legitimate explanations for the actions he alleged were retaliatory.</block_quote> <bold>3. Public Officers and Employees —

Whether a unilateral amendment made pursuant to a change-of-terms provision violates the implied covenant of good faith and fair dealing and renders a contract illusory.