I. CARY NAILING, Appellee, v. UNC-CH, Appellant

attorney's fees, State employee grievance

ADA, termination

PAMELA C. GRANGER, Petitioner-Appellant v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent-Appellee No. COA08-992 (Filed 7 July 2009) 1. Administrative Law— standard of review — de novo The appropriate standard of review is de novo where a final agency decision rejects the decision of the administrative law judge. 2. Public Officers and Employees— termination of career state employee — unacceptable personal conduct The trial court did not err by affirming the final decision of the State Personnel Commission to dismiss petitioner career state employee on the basis of unacceptable personal conduct because: (1) petitioner admitted to using the “n” word in the workplace in reference to an African-American employee under the direct supervision of petitioner; (2) by uttering this epithet in • the workplace, where petitioner was overheard by one of her subordinates, petitioner undermined her authority and exposed respondent university to embarrassment and potential legal liability; (3) petitioner attempted to obstruct the investigation, which amounted to insubordination, petitioner stated she would not hire another black person, petitioner disposed of the African-American employee’s Black History notebook, and petitioner created a general sense of intimidation in the workplace; and (4) petitioner’s actions, when considered together, supported her dismissal under all four of the definitions of unacceptable personal conduct under 25 N.C.A.C. lJ.0614(i) including conduct for which no reasonable person should expect to receive prior warning, the willful violation of known or written work rules, conduct unbecoming a state employee that is detrimental to state service, or the abuse of a person over whom the employee has charge or to whom the employee has a responsibility. Appeal by Petitioner from order entered 21 April 2008 by Judge R. Allen Baddour, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 10 March 2009. Law Offices of Michael C. Byrne, PC, by Michael C. Byrne, for Petitioner-Appellant. Attorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for Respondent-Appellee. McGEE, Judge. Respondent dismissed Petitioner, a career employee, on 19 August 2005, on the basis of Petitioner’s unacceptable personal conduct. Isabelle Jones-Parker (Jones-Parker), an African-American and also an employee of Respondent, who was under the direct supervision of Petitioner, sent Respondent a letter in June 2005 arguing, inter alia, that Petitioner had subjected Jones-Parker to “racism, harassment and workplace hostility.” In response to Jones-Parker’s letter, Respondent appointed three investigators to investigate Petitioner’s allegations: Karen Silverberg, Assistant Dean for Human Resources for the UNC School of Medicine; Gena Carter, UNC Chapel Hill Human Resources Team Leader; and Joanna Carey Smith, a member of the UNC Chapel Hill Office of General Counsel (the investigators). In the course of their investigation, the investigators obtained statements from other employees under Petitioner’s direct supervision. One of those employees, Susan Huey (Huey) stated that she had overheard Petitioner refer to Jones-Parker as “that n-” as Petitioner was leaving Petitioner’s office. Petitioner, upon being informed of Huey’s statement, admitted she had used the epithet in reference to Parker-Jones, explaining that she knew it was inappropriate. Petitioner stated it had been an expression of her anger due to the investigation, and that she had only used the epithet once, while speaking to her sister on the phone, and had not meant for anyone in the office to overhear it. Another employee, Betty Satterfield (Satterfield), stated that Petitioner had told her Petitioner would never hire another-black person. Satterfield also reported she witnessed Petitioner taking a workbook belonging to Jones-Parker that contained work on Black History month that Jones-Parker was compiling for her church. Satterfield further stated that Petitioner informed her that Petitioner had instructed Petitioner’s boyfriend to dispose of the notebook. In addition, Satterfield stated that Petitioner continually spoke with her concerning the ongoing investigation, attempting to elicit information, and instructing Satterfield how to respond to questioning. Both Huey and Satterfield stated Petitioner created a hostile work environment by continually referring to Petitioner’s contacts with Respondent, and Petitioner’s ability to use those contacts to punish employees who crossed Petitioner. Petitioner admitted to using the racial slur against Jones-Parker, but denied the other allegations. The end result of the investigation was the dismissal of Petitioner. Petitioner completed Respondent’s internal grievance process without success, and filed a petition for a contested case with the Office of Administrative Hearings on 5 January 2006. Administrative Law Judge (ALJ) Beecher Gray heard the case on 20-21 September 2006, and on 22 December 2006, the ALJ filed his decision in which he concluded Petitioner was improperly dismissed. Respondent appealed to the State Personnel Commission. The State Personnel Commission overturned the ALJ’s decision by final decision entered 2 April 2007. Petitioner filed for judicial review, and the matter was heard by the trial court in Wake County Superior Court on 6 December 2007. By order entered 21 April 2008, the trial court affirmed the final decision of the State Personnel Commission. Petitioner appeals. In Petitioner’s arguments, she contends the trial court erred in concluding (1) that one use of a racial slur under these circumstances constituted unacceptable personal conduct, and thus provided just cause for dismissal; (2) that Petitioner’s discussions with other employees about the investigation amounted to interference with that investigation, and thus insubordination; and (3) that Petitioner’s statement that she would not hire another black person, Petitioner’s discarding of Jones-Parker’s Black History notebook, and Petitioner’s creation of a “general sense of intimidation in the workplace” constituted unacceptable personal conduct, and thus just cause for dismissal. We disagree. We observe that . . . subsection l50B-51(c) requires a reviewing court to engage in independent “de novo” fact-finding in all contested cases . . . where the agency fails to adopt the ALJ’s initial decision. Subsection 150B-51(c) provides, in pertinent part: “In reviewing a final decision in a contested case in which an administrative law judge made a decision, in accordance with G.S. 150B-34(a), and the agency does not adopt the administrative law judge’s decision, the [trial] court shall review the official record, de novo, and shall make findings of fact and conclusions of law. In reviewing the case, the [trial] court shall not give deference to any prior decision made in the case and shall not be bound by the findings of fact or the conclusions of law contained in the agency’s final decision.” N.C.G.S. § 150B-51(c) (2003) (emphasis added). N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 662-63, 599 S.E.2d 888, 897 (2004) (internal citations omitted). The [trial] court shall determine whether the petitioner is entitled to the relief sought in the petition, based upon its review of the official record. The [trial] court reviewing a final decision under this subsection may adopt the administrative law judge’s decision; may adopt, reverse, or modify the agency’s decision; may remand the case to the agency for further explanations under G.S. 150B-36(bl), 150B-36(b2), or 150B-36(b3), or reverse or modify the final decision for the agency’s failure to provide the explanations; and may take any other action allowed by law. N.C. Gen. Stat. § 150B-51(c) (2008). “When this Court reviews appeals from superior court either affirming or reversing the decision of an administrative agency, our scope of review is twofold . ..: (1) whether the superior court applied the appropriate standard of review and, if so, (2) whether the superior court properly applied this standard.” Corbett v. N.C. Div. of Motor Vehicles, 190 N.C. App. 113, 118, 660 S.E.2d 233, 237 (2008). “In cases reviewed under G.S. 150B-51(c), the [trial] court’s findings of fact shall be upheld if supported by substantial evidence.” N.C. Gen. Stat. § 150B-52 (2008). “ ‘Substantial evidence is such “relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” ’ even if contradictory evidence may exist.” Cape Med. Transp., Inc. v. N.C. Dep’t of Health & Human Servs., 162 N.C. App. 14, 22, 590 S.E.2d 8, 14 (2004) (internal citations omitted); see also Rainey v. N.C. Dep’t of Pub. Instruction, 181 N.C. App. 666, 671, 640 S.E.2d 790, 794 (2007), rev. on other grounds by Rainey v. N.C. Dep’t of Pub. Instruction, 361 N.C. 679, 652 S.E.2d 251 (2007); Enoch v. Alamance County Dep’t of Soc. Servs., 164 N.C. App. 233, 250, 595 S.E.2d 744, 757 (2004). Because the case before us involves a situation where the final agency decision rejected the decision of the AU, the appropriate standard of review for the trial court was de novo. Carroll, 358 N.C. at 662-63, 599 S.E.2d at 897. The trial court stated the correct standard of review in its order. [R.p. 181] We must now decide whether the trial court properly applied that standard of review. Corbett, 190 N.C. App. at 118, 660 S.E.2d at 237. At the time of her dismissal, Petitioner was a career state employee as defined by Chapter 126 of the North Carolina General Statutes: the “State Personnel Act.” (a) Any employee, regardless of occupation, position or profession may be warned, demoted, suspended or dismissed by the appointing authority. Such actions may be taken against career employees as defined by the State Personnel Act, only for just cause. The provisions of this section apply only to employees who have attained career status. The degree and type of action taken shall be based upon the sound and considered judgment of the appointing authority in accordance with the provisions of this Rule. When just cause exists the only disciplinary actions provided for under this Section are: (1) Written warning; (2) Disciplinary suspension without pay; (3) Demotion; and (4) Dismissal. (b) There are two bases for the discipline or dismissal of employees under the statutory standard for “just cause” as set out in G.S. 126-35. These two bases are: (1) Discipline or dismissal imposed on the basis of unsatisfactory job performance, including grossly inefficient job performance. (2) Discipline or dismissal imposed on the basis of unacceptable personal conduct. (c) Either unsatisfactory or grossly inefficient job performance or unacceptable personal conduct as defined in 25 NGAG 1J. 0614 of this Section constitute just cause for discipline or dismissal. The categories are not mutually exclusive, as certain actions-by employees may fall into both categories, depending upon the facts of each case. No disciplinary action shall be invalid solely because the disciplinary action is labeled incorrectly. (d) The imposition of any disciplinary action shall comply with the procedural requirements of this Section. 25 N.C.A.C. 1J.0604 (2008) (emphasis added). Petitioner was dismissed based upon a finding of unacceptable personal conduct, which is defined in relevant part as: “conduct for which no reasonable person should expect to receive prior warning”; “the willful violation of known or written work rules”; “conduct unbecoming a state employee that is detrimental to state service”; or “the abuse of... person(s) over whom the employee has charge or to whom the employee has a responsibility].]” 25 N.C.A.C. lJ.0614(i) (2008). The trial court made the following relevant findings of fact: (1) Based on the investigation of Jones-Parker’s complaints, “other employees in the department expressed concerns and difficulties in dealing personally and professionally with Petitioner[.]” (2) Satterfield’s testimony was “credible and is consistent with other believable evidence in this case,” as was the testimony of Huey. (3) “Petitioner used a racial slur,-(hereinafter, the “n” word), in the workplace.” Petitioner admitted using this slur on one occasion. (4) Huey, a State employee under Petitioner’s direct supervision, overheard Petitioner use the “n” word. (5) Petitioner told Satterfield that Petitioner would “not hire another black person].]” Satterfield’s testimony is bolstered by Petitioner’s continued attempts to question and direct Satterfield during the investigation, indicating concern on Petitioner’s part with respect to what the content of Satterfield’s testimony would be. (6) “Petitioner discarded a Black History project notebook, which was a personal item belonging to Jones-Parker.” (7) Petitioner violated the investigators’ instructions to avoid speaking to anyone concerning the ongoing investigation, and this violation constituted an act of insubordination. (8) “Petitioner created a general sense of intimidation in the workplace.” (9) “Respondent has adopted and administers policies related to racial harassment, discrimination, unlawful workplace harassment, and violence in the workplace.” (10) “Respondent has a duty and responsibility to act in compliance with all state and federal laws, including workplace discrimination or harassment laws.” And, (11) Respondent acted appropriately in considering the acts of Petitioner in light of its interest in fostering a fair workplace free of intimidation based on race, ethnicity, or any other relevant factor, as well as in light of the perception of the public (the “public” being other employees in the department or university, or the people of the State of North Carolina), and its interpretation of possible legal actions based on any action of inaction on its own part. The trial court then made the following relevant conclusions of law: (1) Petitioner’s admitted use of the “n” word in reference to Jones-Parker “constitutes unacceptable personal conduct, for which no prior warning is required.” (2) “Petitioner’s discussions with other employees about their interviews with the investigation group amounted to interference with that investigation and such conduct amounts to insubordination.” (3) “Petitioner’s statement that she would not hire another black person, discarding of Jones-Parker’s personal Black History notebook, and creation of a general sense of intimidation in the workplace, when taken together, constitute unacceptable personal conduct, for which no prior warning is required.” (4) “The conclusions of law . . . above are individually, and therefore collectively, sufficient to constitute unacceptable personal conduct, and as such, permit Petitioner’s dismissal without any prior disciplinary action.” And, (5) “Respondent has satisfied its burden of establishing just cause for Petitioner’s dismissal.” Though contradictory evidence exists for some of the trial court’s findings of fact, we hold that substantial evidence — evidence a reasonable mind might accept as adequate to support a conclusion— exists to support the relevant findings of fact listed above. Cape Med. Transp., Inc., 162 N.C. App. at 22, 590 S.E.2d at 14. Petitioner admitted using the “n” word in the workplace in reference to Jones-Parker, which remark was overheard by Huey, one of the employees Petitioner supervised. Petitioner initially omitted her use of this racial slur in her interview with the investigators, then changed her statement twice after she was informed another employee had heard her use the racial slur. Huey made the following written statements: (1) That after a disagreement with Jones-Parker, Petitioner “came out of her office and said under her breath ‘that--’ and that one “could tell [Petitioner] didn’t care for black people, just by the way she treated them or others that came into the office.” (2) Petitioner told us on many occasions that she knew people on this campus and she could make our lives a living hell if we ever challenged her. She has always thrown around her power at the University[.] I was afraid to apply for another job ... I didn’t want it to get back to her. (3) Petitioner “was very rude and snippy to everyone, she didn’t like to be bothered with questions and that was known.” And, (4) “[f]or the past year or so the ethics in the office have [g]one downhill.” Petitioner denied knowing anything about the disappearance of Jones-Parker’s Black History notebook, but Satterfield stated that she saw Petitioner remove the notebook from the cubicle where Jones-Parker had left it, and take it into Petitioner’s office. Petitioner later told Satterfield that Petitioner had instructed Petitioner’s boyfriend to throw it away. Satterfield also made the following statements: (1) Petitioner instructed Satterfield to deny knowing anything about the notebodk when Satterfield spoke with investigators; (2) Petitioner repeatedly questioned Satterfield about the ongoing investigation and instructed Satterfield to withhold information potentially damaging to Petitioner; (3) Petitioner told Satterfield Petitioner would “never hire another black person in her office”; (4) Petitioner told Satterfield that if Jones-Parker “thought it was hostile before [Jones-Parker took a leave of absence], that [Jones-Parker] had no idea how hostile it could be”; (5) Petitioner indicated that she had many contacts in the university, and that she could use those contacts to “make it very difficult for someone to pursue other employment.” Petitioner also “bragged that she could get [Jones-Parker] fired. [Petitioner] then told [Satterfield] that [Petitioner] could get in trouble for having told [Satterfield] that information, and that [Satterfield] should not repeat it.” And, (6) Petitioner was “furious” that another employee would not divulge the content of her interview with investigators, and Petitioner told Satterfield if Satterfield “found out what was going on that [Satterfield] had better tell [Petitioner].” Respondent has policies prohibiting racial harassment or harassment in the workplace. Respondent has a duty to enforce these policies, and to further its stated goal of promoting an “environment of' tolerance and mutual respect that must prevail if the University is to fulfill its purposes.” As stated by the Fourth Circuit in Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. Md. 2001): Far more than a “mere offensive utterancé,” the word “[-]” is pure anathema to African-Americans. “Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘[-]’ by a supervisor in the presence of his subordinates.” Id. We agree with the Fourth Circuit’s analysis. By uttering this epithet in the workplace, where Petitioner was overheard by one of her subordinates, Petitioner undermined her authority and exposed Respondent to embarrassment and potential legal liability. Further, Petitioner had attempted to obstruct the investigation, which amounted to insubordination; Petitioner stated she would not hire another black person, Petitioner took and disposed of Jones-Parker’s Black History notebook, and she created a “general sense of intimidation in the workplace.” When considered together, we hold the trial court did not err in finding that Petitioner’s actions constituted unacceptable personal conduct for which dismissal was proper. Arguably, Petitioner’s actions, when considered together, support her dismissal under all four of the following definitions of unacceptable personal conduct: (1) “conduct for which no reasonable person should expect to receive prior warning”; (2) “the willful violation of known or written work rules”; (3) “conduct unbecoming a state employee that is detrimental to state service”; or (4) “the abuse of ... a person(s) over whom the employee has charge or to whom the em

EDWIN SWAIN, Plaintiff v. CAROLYN ELFLAND, individually and in her official capacity as an Assistant Vice Chancellor for Auxiliary Services of the University of North Carolina at Chapel Hill, JEFFREY McCRACKEN, individually and in his official capacity as Major in the Police Department of the University of North Carolina at Chapel Hill, DRAKE MAYNARD, individually and in his official capacity as Human Resources Administrator for the University of North Carolina at Chapel Hill, and OTHER UNKNOWN UNIVERSITY OFFICIALS, and the UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants No. COA00-258 (Filed 7 August 2001) 1. Employer and Employee— wrongful discharge — retaliation — conj ecture The trial court did not err by granting summary judgment for defendants on wrongful discharge and conspiracy claims by a UNC police officer who issued an underage drinking citation to the daughter of a University trustee. Plaintiff presented nothing more than conjecture to support his allegations of retaliation and there was no evidence of any agreement to unlawfully discharge plaintiff. 2. Public Officers and Employees— whistleblower claim— failure to exhaust administrative remedies The trial court did not err by dismissing a UNC police officer’s whistleblower claim for failure to exhaust administrative remedies where there was no question that he had unsuccessfully exercised his right to seek relief from the State Personnel Commission under N.C.G.S. § 126-34.1(a)(7) and did not seek judicial review. Although plaintiff contends that he could maintain an administrative action under N.C.G.S. § 126-34.1(a) (7) and an action in superior court under N.C.G.S. § 126-85, the only reasonable interpretation of these statutes is that a state employee may choose to pursue a whistleblower claim in either forum, but not both. Moreover, plaintiff did not include the required allegations that exhaustion of his administrative remedy would be futile, and, even if the two statutory provisions are assumed to be in para materia, N.C.G.S. § 126-34.1(a)(7) controls as the more recent enactment. 3. Constitutional Law— free speech — official capacities— adequate state remedy A dismissed UNC police officer’s state constitutional claim was properly dismissed where plaintiff brought a claim for alleged constitutional violations against defendants in their official capacities and had an adequate state remedy available to him. Appeal by plaintiff from order entered 13 December 1999 by Judge James C. Davis in Orange County Superior Court. Heard in the Court of Appeals 22 January 2001. McSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff appellant. Attorney General Michael F. Easley, by Senior Deputy Attorney General Ann Reed, Assistant Attorneys General Bruce S. Ambrose, and Richard E. Slipsky, for defendant appellees. SMITH, Judge. The plaintiff, Lt. Edwin Swain, Jr., is employed as a police officer at the University of North Carolina at Chapel Hill. On 27 September 1997, plaintiff was assigned to an “Interdiction and Arrest” team at a football game at Kenan Stadium. The primary purpose of the team was to enforce the alcohol laws. After the game, plaintiff observed a young woman, Caroline Hancock, holding what appeared to be a malt beverage. When plaintiff approached Hancock, a member of Hancock’s party alerted her to plaintiffs presence. Hancock took the bottle and placed it in the back of a truck. Plaintiff told Hancock he saw her in possession of a malt beverage, asked her if it was a beer, and she replied affirmatively. Plaintiff then requested Hancock’s driver’s license, which listed her age as eighteen years old. Plaintiff proceeded to write her a citation for underage drinking. Soon thereafter, Hancock’s father approached, and plaintiff informed him that he was citing Hancock. Hancock’s father, Billy Armfield, was a member of the University Board of Trustees. Armfield asked plaintiff not to issue the citation, but plaintiff declined the request. Plaintiff then left and headed back to the police department. After the game, Armfield protested his daughter’s citation to University officials. Plaintiff’s superior, Major Jeffrey McCracken, later communicated to plaintiff that there were questions regarding plaintiff’s probable cause to issue the citation. On 29 September 1997, plaintiff reported for duty and entered Hancock’s citation into the computer. According to plaintiff, Major McCracken ordered him to turn over the copies of the citation to him, and tried to persuade him to withdraw the citation. The citation was later pulled from a stack of citations ready for transfer to a magistrate. Plaintiff accused his superiors of obstruction of justice and refused to cooperate with them. On 31 September 1997, the citation was returned to the “judicial stream” and forwarded to the magistrate. Soon thereafter, plaintiff reported the alleged “coverup” to the media, and several news accounts appeared in the press. Plaintiff later filed a grievance to protest his supervisor’s decisions, and requested an investigation into what he believed was improper police procedures and obstruction of justice. Plaintiff’s grievances were denied. On 30 October 1997, Major McCracken received information that plaintiff, while on duty, had visited the offices of the Chapel Hill News. Plaintiff was seen there between the hours of noon and 2:00 p.m., and he was not there on official UNC-CH business. Major McCracken later confirmed this information with Anne England, an employee at the newspaper. Plaintiff had not informed his dispatcher of his location during this time period. Major McCracken did not immediately confront plaintiff with this information and instead decided to wait and see whether plaintiff claimed the time as personal time on his timecard. After plaintiff submitted his timecard, Major McCracken asked him about the time he spent at the newspaper on 30 October 1997. Plaintiff had not claimed the time as personal leave. Plaintiff’s reply was “interesting” without further elaboration. Major McCracken then gave plaintiff the opportunity to change his timecard, but plaintiff refused. A pre-disciplinary conference was held on 17 November 1997, and plaintiff declined to provide any explanation for his time-card. On 19 November 1997, Major McCracken fired plaintiff. Plaintiff filed the instant lawsuit on or about 2 December 1997 alleging: (1) violation of N.C. Gen. Stat. § 126-85 (1999), the “Whistleblower Act”; (2) wrongful discharge in violation of public policy and racial discrimination in violation of N.C. Gen. Stat. § 143-422.2 (1999); (3) violation of his state constitutional rights to free speech; and (4) a conspiracy by Carolyn Elfland, Major McCracken, and Drake Maynard to unlawfully discharge plaintiff from his employment. Shortly after plaintiff filed this action, his dismissal was rescinded by Chancellor Michael Hooker. Chancellor Hooker adopted the findings of an independent investigation which found there was just cause for discipline, but that dismissal was too harsh a penalty. Plaintiff was reinstated but suspended for one week without pay. On or about 23 December 1997, plaintiff filed a petition for a contested case hearing in the North Carolina Office of Administrative Hearings. Plaintiff alleged his suspension was without cause, and was the result of racial discrimination and retaliation. A hearing was held on 11-14 May 1998. On 31 July 1998, Judge Fred G. Morrison issued a Recommended Decision concluding that defendants had just cause to discipline plaintiff for unacceptable personal conduct, and that plaintiff was not the victim of illegal discrimination or retaliation. Accordingly, the suspension of plaintiff without pay for one week was affirmed. On 18 November 1998, the State Personnel Commission upheld the Recommended Decision. Plaintiff did not appeal. On 27 October 1999, defendants moved for summary judgment in the instant case. On 13 December 1999, the trial court granted summary judgment to defendants. The trial court concluded that: (1) plaintiffs Whistleblower claim was dismissed due to plaintiffs failure to exhaust his administrative remedies; (2) plaintiffs wrongful discharge claim was dismissed due to plaintiffs failure to exhaust his administrative remedies; (3) plaintiffs state constitutional claims were dismissed because plaintiff had an adequate state remedy available, and thus his claim was lacking an essential element; and (4) summary judgment on all claims in the complaint was allowed on the ground that there was no genuine issue of material fact and defendants were entitled to judgment as a matter of law. Plaintiff appealed. I. We first consider whether the trial court erred in dismissing plaintiffs complaint on summary judgment because there was no genuine issue as to any material fact. Specifically, plaintiff challenges the trial court’s dismissal of his claim of wrongful discharge, and his allegation that defendants conspired to unlawfully discharge him. To establish a cause of action for wrongful discharge or demotion in violation of his right to freedom of speech, plaintiff must forecast sufficient evidence “ ‘that the speech complained of qualified as protected speech or activity’ ” and “ ‘that such protected speech or activity was the ‘motivating’ or ‘but for’ cause for his discharge or demotion.’ ” Warren v. New Hanover County Bd. of Education, 104 N.C. App. 522, 525-26, 410 S.E.2d 232, 234 (1991) (quoting Jurgensen v. Fairfax County, 745 F.2d 868, 877-78 (4th Cir. 1984)). “ ‘[T]he resolution of these two critical issues is a matter of law and not of fact.’ ” Id. See also Evans v. Cowan, 132 N.C. App. 1, 9, 510 S.E.2d 170, 175 (1999). The only motivation established by the competent evidence in the case sub judice was that plaintiff was dismissed due to the discrepancies in his timecard and his refusal to either amend his timecard or provide an explanation for the discrepancies. Major McCracken, who was plaintiff’s supervisor, and made the decision to dismiss plaintiff, testified that plaintiff’s grievances over the ticket had “nothing to do” with the decision to dismiss plaintiff. In fact, Major McCracken testified that he took disciplinary action against plaintiff in spite of the publicity, not because of it. Major McCracken admitted that plaintiff’s submission of the falsified time-card created a “terrible timing” problem, but that he “had to act on it.” Chancellor Hooker testified that he concluded that plaintiff had violated policies, and although he believed the punishment of dismissal was too severe, there was no evidence to support a conclusion that any UNC-CH official was motivated to retaliate against plaintiff because he had gone to the newspapers. Chancellor Hooker also stated that the disciplinary action against plaintiff was in spite of all the attendant publicity, and not because of it. “Although evidence of retaliation in a case such as this one may often be completely circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation.” Lenzer v. Flaherty, 106 N.C. App. 496, 510, 418 S.E.2d 276, 284, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). Here, plaintiff presented nothing more than mere conjecture to support his allegations of retaliation. Accordingly, we conclude that the trial court properly dismissed plaintiff’s retaliatory discharge claim. Because plaintiff’s underlying claims were properly dismissed, his allegation that defendants conspired to unlawfully discharge him must likewise fail. “A claim for conspiracy . . . cannot succeed without a successful underlying claim . . . .” Jay Group, Ltd. v. Glasgow, 139 N.C. App. 595, 599, 534 S.E.2d 233, 236, disc. review denied, 353 N.C. 265, 546 S.E.2d 100 (2000). See Burton v. Dixon, 259 N.C. 473, 476, 131 S.E.2d 27, 30 (1963) (“A civil action for conspiracy is an action for damages resulting from acts committed by one or more of the conspirators pursuant to the formed conspiracy ....”). Assuming arguendo that plaintiff had succeeded on his underlying claims, plaintiff has not pointed to any competent evidence in the record to support his allegations that defendants conspired to unlawfully discharge him, and our review of the record discloses no such evidence. This Court has stated: A civil conspiracy claim consists of: (1) an agreement between two or more persons; (2) to do an unlawful act or to do a lawful act in an unlawful way; (3) which agreement resulted in injury to the plaintiff. Although an action for civil conspiracy may be established by circumstantial evidence, sufficient evidence of the agreement must exist “to create more than a suspicion or conjecture in order to justify submission of the issue to a jury.” Boyd v. Drum, 129 N.C. App. 586, 592, 501 S.E.2d 91, 96 (1998) (citations omitted) (quoting Dickens v. Puryear, 302 N.C. 437, 456, 276 S.E.2d 325, 337 (1981)), aff'd, 350 N.C. 90, 511 S.E.2d 304 (1999). Where such an agreement exists, “ ‘all of the conspirators are liable, jointly and severally, for the act of any one of them done in furtherance of the agreement.’ ” Johnson v. First Union Corp., 128 N.C. App. 450, 459, 496 S.E.2d 1, 7 (1998) (quoting Fox v. Wilson, 85 N.C. App. 292, 301, 354 S.E.2d 737, 743 (1987)). In the case at bar, there is no evidence of any agreement among defendants to unlawfully discharge plaintiff. Carolyn Elfland testified that she did not make the decision to dismiss plaintiff, and did not instruct Major McCracken to dismiss him. Elfland was the Associate Chancellor for Auxiliary Services at the University and Major McCracken’s supervisor. Drake Maynard, Senior Director of Human Resources, testified that he provided information about the disciplinary process to Elfland and Major McCracken, but played no role in the decision to dismiss plaintiff. Thus, there is no evidence that defendants acted in concert to willfully and intentionally discredit and discharge plaintiff in violation of his rights, only plaintiff’s allegations based on mere suspicion. This assignment of error is overruled. II. We next consider whether the trial court erred in dismissing plaintiff’s “Whistleblower” claim on the ground that plaintiff failed to exhaust his administrative remedies. Plaintiff argues that N.C. Gen. Stat. § 126-86 (1999) expressly authorizes superior court jurisdiction over a state employee’s claim of retaliation for reports of governmental wrongs. Plaintiff asserts that he chose to sue in superior court pursuant to N.C. Gen. Stat. 126-86, and there is “no exhaustion condition precedent.” We are not persuaded by plaintiffs argument. Two statutes provide avenues to redress violations of the Whistleblower statute. N.C. Gen. Stat. § 126-86 states that “[a]ny State employee injured by a violation of G.S. 126-85 may maintain an action in superior court . . . .” N.C. Gen. Stat. § 126-34.1(a)(7) (1999) provides that a State employee may file in the Office of Administrative Hearings a contested case for “[a]ny retaliatory personnel action that violates G.S. 126-85.” Here, plaintiff alleged in his petition for a Contested Case Hearing that he had been retaliated against. Thus, it is without question that he exercised his right under N.C. Gen. Stat. § 126-34.1(a)(7) to seek relief from the State Personnel Commission of the alleged violation of the Whistleblower Act. Under plaintiff’s interpretation of the statutes at issue, he could maintain an administrative action and an action in superior court simultaneously. However, this would allow plaintiff two bites of the apple, could lead to the possibility that different forums would reach opposite decisions, as well as engender needless litigation in violation of the principles of collateral estoppel. See University of Tennessee v. Elliott, 478 U.S. 788, 797, 92 L. Ed. 2d 635, 645 (1986) (“[I]t is sound policy to apply principles of issue preclusion to the fact-finding of administrative bodies acting in a judicial capacity.”). The only reasonable interpretation of these statutes is that a state employee may choose to pursue a Whistleblower claim in either forum, but not both. See Hobbs v. Moore County, 267 N.C. 665, 671, 149 S.E.2d 1, 5 (1966) (“If possible, the language of a statute will be interpreted so as to avoid an absurd consequence. A statute is never to be construed so as to require an impossibility if that result can be avoided by another fair and reasonable construction of its terms.”). Id. (citations omitted). Plaintiff chose to pursue an administrative action, the administrative law judge ruled against plaintiff, and plaintiff did not seek judicial review. See Huang v. N.C. State University, 107 N.C. App. 710, 715, 421 S.E.2d 812, 815 (1992) (“[T]he policy of requiring the exhaustion of administrative remedies prior to the filing of court actions ‘does not require merely the initiation of prescribed administrative procedures, but that they should be pursued to their appropriate conclusion and their final outcome awaited before seeking judicial intervention . . . .’ ”). Id. (quoting 2 Am. Jur. 2d Administrative Law § 608 (1962)). Additionally, plaintiff did not allege in his complaint that exhaustion of his administrative remedy would be futile. “The burden of showing the inadequacy of the administrative remedy is on the party claiming the inadequacy, and the party making such a claim must include such allegation in the complaint.” Id. (citation omitted). Accordingly, we conclude that plaintiff has failed to exhaust his administrative remedies for this claim, and it was properly dismissed. Even if we were to assume arguendo that the two provisions in question here are in pari materia, but are in irreconcilable conflict, the provisions of N.C. Gen. Stat. § 126-34.1(a)(7) would control, because it is the more recent enactment. This Court has stated: Statutes in pari materia, although in apparent conflict or containing apparent inconsistencies, should, as far as reasonably possible, be construed in harmony with each other so as to give force and effect to each; but if there is an irreconcilable conflict, the latest enactment will control, or will be regarded as an exception to, or qualification of, the prior statute. State v. Hutson, 10 N.C. App. 653, 657, 179 S.E.2d 858, 861 (1971); see also Caudill v. Dellinger, 129 N.C. App. 649, 655, 501 S.E.2d 99, 103 (1998), aff’d in part, dismissed in part, 350 N.C. 89, 511 S.E.2d 304 (1999). Thus, N.C. Gen. Stat. § 126-34.1(a)(7) would control and plaintiff’s exclusive remedy would be administrative. III. We next consider whether the trial court erred in dismissing plaintiffs state constitutional claim on the grounds that plaintiff had an adequate state remedy available to him, and thus, plaintiff was lacking an essential element of his claim. Plaintiff alleged in his complaint that his discharge “was made to chill his free speech rights.” Plaintiff contended that “[t]he retaliatory discharge described here violates the public’s interest in free expression to make decisions about public funds and policies. If this retaliatory discharge is declared constitutional, it would create a chilling wind against plaintiff, other police officers, and other employees of this and other public institutions.” Plaintiff then stated he was bringing his claim directly against defendants, under the North Carolina Constitution, because no other legal remedy was available to him. We disagree with plaintiff’s arguments. Plaintiff’s complaint seeks a monetary remedy for alleged state constitutional violations by defendants. “Such a claim is commonly called a ‘Corum claim.’ ” Ware v. Fort, 124 N.C. App. 613, 616, 478 S.E.2d 218, 220 (1996). See Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276, cert. denied sub. nom. Durham v. Corum, 506 U.S. 985, 616, 121 L. Ed. 2d 431 (1992). To the extent that plaintiff alleges a Corum claim against defendants in their in

WILLIAM PAUL FEARRINGTON, Petitioner-Appellant v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent-Appellee No. COA96-1296 (Filed 15 July 1997) 1. Appeal and Error § 203 (NCI4th)— notice of appeal — prior order — absence of jurisdiction — treatment as petition for certiorari Where the notice of appeal specified that the appeal is from an order of the Orange County Superior Court, the Court of Appeals was without jurisdiction to review a prior order entered in Wake County Superior Court. However, the purported appeal from the Wake County order will be treated as a petition for a writ of certiorari so that the merits of petitioner’s assignment of error to this order may be considered. Am Jur 2d, Appellate Review §§ 285 et seq. Right to perfect appeal, against party who has not appealed, by cross appeál filed after time for direct appeal had passed. 32 ALR3d 1290. 2. Administrative Law and Procedure § 37 (NCI4th)— attorney fees — validity of administrative rule — authority of ALJ An administrative law judge had no authority to make a “final decision” as to the validity of an administrative rule governing the award of attorney fees in cases before the State Personnel Commission. N.C.G.S. § 150B-33(b)(9).' Am Jur 2d, Administrative Law § 309. 3. Public Officers and Employees § 41 (NCI4th)— State Personnel Commission — attorney fees — promulgation of rules — statutory authority The State Personnel Commission’s promulgation of 25 N.C.A.C. I B .0414, which provides the circumstances under which the Commission may award attorney fees, is consistent with the Commission’s jurisdiction over state employee grievances and the statutory authority delegated to it pursuant to N.C.G.S. § 126-4(11). Am Jur 2d, Civil Service §§ 8 et seq. 4. Public Officers and Employees § 63 (NCI4th)— State Personnel Commission — denial of attorney fees The State Personnel Commission did not violate N.C.G.S. § 126-4(11) by applying its rale governing attorney fees to deny attorney fees to a petitioner who was reclassified and received back pay at UNC where the Commission neither found discrimination, ordered reinstatement, nor ordered back pay; UNC found that petitioner’s under-classification was not due to racial discrimination but resulted from administrative error; and petitioner dismissed his discrimination claim. Am Jur 2d, Civil Service §§ 8 et seq. Rights of state and municipal public employees in grievance proceedings. 46 ALR4th 912. 5. Administrative Law and Procedure § 65 (NCI4th)— State Personnel Commission — legal issues — de novo review The trial court properly reviewed petitioner’s appeal of a State Personnel Commission decision under the de novo standard of review where the issues presented on appeal were legal issues. Am Jur 2d, Administrative Law §§ 559, 582. 6. Administrative Law and Procedure § 76 (NCI4th)— administrative decision — time limitations — statutory amendment inapplicable The State Personnel Commission’s decision was not arbitrary or capricious because it was not filed within time limitations specified in the 1991 amendment to N.C.G.S. § 150B-44 where petitioner filed his case before the effective date of the amendment and the amendment did not apply to his case. Am Jur 2d, Administrative Law § 569. On writ of certiorari to review order entered 2 September 1993 by Judge Wiley F. Bowen in Wake County Superior Court, and appeal by petitioner from order entered 8 August 1996 by Judge F. Gordon Battle in. Orange County Superior Court. Heard in the Court of Appeals 22 May 1997. McSurely, Dorosin & Osment, by Alan McSurely, Mark Dorosin, and Ashley Osment, for petitioner-appellant. Attorney General Michael F. Easley, by Special Deputy Attorney General Thomas J. Ziko and Assistant Attorney General R. Bruce Thompson, II, for respondent-appellee. MARTIN, John C., Judge. Petitioner William Paul Fearrington, an employee of respondent University of North Carolina at Chapel Hill, filed a grievance through the University’s internal' grievance procedure alleging that he had been denied a reclassification because of his race. In the course of the grievance proceedings, the University discovered evidence that petitioner’s position had been under-classified and it retroactively reclassified and promoted him, resulting in retroactive pay of $9,804.91. Petitioner, however, continued to pursue his grievance and, after a report and recommendation by the University Staff Employee Grievance Committee, the Chancellor concluded that petitioner’s under-classification had not been the result of racial discrimination and denied the grievance. Petitioner filed a contested case with the Office of Administrative Hearings (OAH) in which he claimed he was “denied reclassification and other privileges because of his race” and, in addition, asserted a claim for attorneys’ fees pursuant to N.C. Gen. Stat. § 126-4(11), based on respondent University’s decision to retroactively reclassify him. Petitioner subsequently dismissed all of his claims against the University except for his claim for attorneys’ fees. By order entered 3 April 1992, an Administrative Law Judge (AU) determined that the administrative rule governing the award of attorneys’ fees in cases before the State Personnel Commission (Commission), 26 N.C.A.C. IB .0414, was void as applied in this case because it was “not within the statutory authority of the Commission to adopt.” On 28 August 1992, the AU entered an “Amendment To Order And Determination That Rule Is Void” to clarify that his 3 April 1992 order was a “final decision” appealable to the superior court. The AU then issued a “Recommended Decision” in which he recommended that the Commission award petitioner reasonable attorneys’ fees pursuant to N.C. Gen. Stat. § 126-4(11). Respondent University filed a petition for judicial review in Wake County Superior Court of the AU’s “final decision.” Upon review, Judge Bowen ruled that the AU did not have authority to enter a final decision determining that 25 N.C.A.C. IB .0414 is void and remanded the case to OAH “for the entry of a recommended decision to the State Personnel Commission pursuant to N.C. Gen. Stat. § 150B-34(a).” Petitioner filed notice of appeal from the trial court’s order, and in an unpublished opinion, No. 9310SC1281, this Court dismissed petitioner’s appeal as interlocutory. On 19 October 1994, the ALJ • entered an “Amendment to Recommended Decision” which recommended “that 25 N.C.A.C. IB .0414 as applied in this particular case is void because it is not within the statutory authority of the State Personnel Commission to adopt,” and that the petitioner be awarded reasonable attorneys’ fees pursuant to N.C. Gen. Stat. § 126-4(11). The Commission rejected the ALJ’s findings of fact and conclusions of law, holding that 25 N.C.A.C. IB .0414 is not void and that, pursuant to this rule, petitioner is not entitled to any attorneys’ fees. Petitioner filed a petition for review in Orange County Superior Court. In an order dated 8 August 1996, the trial court determined that the Commission did not hear new evidence; that the Commission stated specific reasons for not adopting the recommended decision; that 25 N.C.A.C. IB .0414 was not void as applied to this case; and that the Commission acted within its statutory authority when it denied petitioner’s request for attorneys’ fees. Petitioner appeals. I. WAKE COUNTY ORDER The notice of appeal specifies that the appeal is from the order of the Superior Court of Orange County entered 8 August 1996. However, by his first assignment of error, petitioner attempts to present for our review the propriety of the order of 2 September 1993 issued by the Superior Court of Wake County, from which an earlier appeal was dismissed by this Court as interlocutory. Fearrington v. University of North Carolina at Chapel Hill, No. 9310SC1281 (unpublished opinion filed 6 September 1994). N.C.R. App. P. 3(d) (1995) requires that the notice of appeal “designate the judgment or order from which appeal is taken . . . .” Because the notice of appeal completely omits any reference to the Wake County order, we are without jurisdiction to review it. Guilford Co. Dept. of Emergency Services v. Seaboard Chemical Corp., 114 N.C. App. 1, 441 S.E.2d 177, disc. review denied, 336 N.C. 604, 447 S.E.2d 390 (1994). The jurisdictional requirements of N.C.R. App. P. 3(d) may not be waived by this Court, even under the discretion granted by N.C.R. App. P. 2. Von Ramm v. Von Ramm, 99 N.C. App. 153, 392 S.E.2d 422 (1990). However, N.C.R. App. P. 21(a)(1) gives this Court the authority to treat the purported appeal as a petition for writ of certiorari to review the Wake County order, and we elect to do so and consider the merits of petitioner’s assignment of error. Anderson v. Hollifield, 345 N.C. 480, 480 S.E.2d 661 (1997). Petitioner contends that the Superior Court of Wake County erred when it determined that the AU had no authority to enter a final decision declaring 25 N.C.A.C. IB .0414 to be void. N.C. Gen. Stat. § 150B-33(b)(9), entitled “Powers of administrative law judge,” provides that an ALJ may determine that a rule as applied in a particular case is void, however, it does not authorize an ALJ to make a “final decision” with respect to the validity of agency rules. See N.C. Gen. Stat. § 150B-33(b)(9) (1995). Generally, an AU makes a recommended decision or order in a contested case except as provided in N.C. Gen. Stat. § 150B-36(c). N.C. Gen. Stat. § 150B-34(a) (1995). N.C. Gen. Stat. § 150B-36(c) provides: The following decisions made by administrative law judges in contested cases are final decisions: (1) A determination that the Office of Administrative Hearings lacks jurisdiction. (2) An order entered pursuant to the authority in G.S. 7A-759 (e). (3) An order entered pursuant to a written prehearing motion that either dismisses the contested case for failure of the petitioner to prosecute or grants the relief requested when a party does not comply with procedural requirements. (4) An order entered pursuant to a prehearing motion to dismiss the contested case in accordance with G.S. 1A-1, Rule 12(b) when the order disposes of all issues in the contested case. In the present case, the ALJ attempted to make a “final decision” regarding the validity of the rule governing the award of attorneys’ fees, which is not one of the issues upon which an AU can make a final decision pursuant to N.C. Gen. Stat. § 150B-36(c). Therefore, the AU had no authority to make a “final decision” in this case. The order of the Superior Court of Wake County so holding, and remanding this case to the OAH for entry of a recommended decision to the State Personnel Commission in accordance with N.C. Gen. Stat. § 150B-34(a) is affirmed. II. ORANGE COUNTY ORDER The issues presented by petitioner’s appeal from the order of the Orange County Superior Court upon judicial review of the final decision of the State Personnel Commission are (1) whether 25 N.C.A.C. IB .0414, the Commission’s rule regarding the award of attorneys’ fees, is void as applied in this case; (2) whether the Commission acted within its statutory authority when it adopted 25 N.C.A.C. IB .0414; and (3) whether the superior court’s ruling affirming the decision of the Commission is correct. The standard of appellate review of a superior court’s order regarding a decision of an administrative agency requires the appellate court to examine the superior court’s order for error of law, i.e., to determine whether the superior court employed the correct standard of review, and, if so, whether it did so correctly. ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 483 S.E.2d 388 (1997). The standard for the superior court’s review of the agency decision depends on the issues presented in the petition for review. Id. If [petitioner] argues the agency’s decision was based on an error of law, then “de novo” review is required. If, however, [petitioner] 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) (citations omitted). “De novo" review requires a court to consider a question anew, as if not considered or decided by the agency, while the “whole record” test requires the reviewing court to examine all competent evidence, i.e., the “whole record,” in order to determine whether the agency decision is supported by substantial evidence. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). A. In his petition for judicial review of the final decision of the State Personnel Commission, petitioner contended that 25 N.C.A.C. IB .0414 is void, both generally and as applied to this case. These contentions required the superior court to employ “de novo” review. The superior court did so, ruling as a matter of law that the rule is not invalid. Petitioner assigns error, contending the superior court should have found the rule, 25 N.C.A.C. IB .0414, to be void. The State Personnel Commission is granted the authority to promulgate regulations regarding the award of attorneys’ fees under N.C. Gen. Stat. § 126-4(11), which provides: Subject to the approval of the Governor, the State Personnel Commission shall establish policies and rules governing each of the following: (11) In cases where the Commission finds discrimination or orders reinstatement or back pay whether (i) heard by the Commission or (ii) appealed for limited review after settlement or (iii) resolved at the agency level, the assessment of reasonable attorneys’ fees and witnesses’ fees against the State agency involved. Pursuant to N.C. Gen. Stat. § 126-4(11), the Commission promulgated 25 N.C.A.C. IB .0414 et seq., which provides that the Commission may award attorneys’ fees when: (1) the grievant is reinstated to the same or similar position from either a demotion or dismissal; (2) the grievant is awarded back pay from either a demotion or a dismissal, without regard to whether the grievant has been reinstated; (3) the grievant is determined, by the commission or by the agency’s internal grievance procedure, to have been discriminated against in violation of G.S. § 126-16; (4) the grievant is awarded back pay as the result of a successful grievance alleging a violation of G.S. § 126-7.1; (5) any combination of the above situations. N.C. Admin. Code tit. 25, r. 1B .0414. Petitioner argues that 25 N.C.A.C.1B .0414 is void on its face because it is inconsistent with N.C. Gen. Stat. § 126-4(11). The Commission concluded that it had been given statutory authority to adopt rules with respect to the award of attorneys’ fees, but that there was no statutory mandate requiring that it award such fees in all cases. Rather, the Commission concluded that a determination as to those circumstances appropriate for an award of attorneys’ fees was vested in the Commission. Pursuant to the authority granted it by N.C. Gen. Stat. § 126-4(11), the Commission established rules governing the assessment of attorneys’ fees in state employee grievance proceedings. The Commission’s determinations regarding its authority under N.C. Gen. Stat. § 126-4(11) are entitled to considerable weight. See Newsome v. State Board of Elections, 105 N.C. App. 499, 415 S.E.2d 201 (1992). The Commission has discretionary authority to enter an award of attorneys’ fees under N.C. Gen. Stat. § 126-4(11). See North Carolina Dept. of Correction v. Myers, 120 N.C. App. 437, 462 S.E.2d 824 (1995), affirmed, 344 N.C. 626, 476 S.E.2d 364 (1996). The Commission’s jurisdiction over the appeals of state employee grievances derives from Chapter 126, the State Personnel Act. Batten v. N.C. Department of Correction, 326 N.C. 338, 389 S.E.2d 35 (1990). The Commission has jurisdiction to review appeals involving government employees subject to the Personnel Act where an employee was: (1) discharged, suspended or demoted for disciplinary reasons without just cause, N.C. Gen. Stat. § 126-35 (1995); (2) denied employment, promotion, or training because of illegal discrimination or in retaliation for opposition to alleged illegal discrimination, N.C. Gen. Stat. §§ 126-36, 126-36.1 (1995); (3) demoted, laid off or terminated because of illegal discrimination or in retaliation for opposition to alleged illegal discrimination, N.C. Gen. Stat. § 126-36 (1995); (4) denied promotion because the agency failed to post notice of the job vacancy or denied state employee priority consideration in violation of N.C. Gen. Stat. §§ 126-7.1, 126-36.2 (1995); and (5) any other contested case arising under Chapter 126, N.C. Gen. Stat. § 126-37 (1995). The Commission’s promulgation of 25 N.C.A.C. 1B .0414 is consistent with the Commission’s jurisdiction over state employee grievances and the statutory authority delegated to it by the General Assembly. Petitioner also argues that 25 N.C.A.C. IB .0414 is void as applied in this case because it is inconsistent with the Commission’s authority, granted by N.C. Gen. Stat. § 126-4(11), to assess attorneys’ fees when back pay is awarded. However, in petitioner’s case, the Commission neither found discrimination, ordered reinstatement, nor ordered back pay, which are prerequisites for the assessment of reasonable attorneys’ fees pursuant to N.C. Gen. Stat. § 126-4(11). Rather, the University retroactively reclassified petitioner, who had been under-classified due to administrative error. The University found that petitioner’s under-classification had not been due to racial discrimination “or any other impermissible factor” and denied his grievance, and petitioner subsequently dismissed his claim that he had been discriminated against. Because petitioner’s case does not meet the criteria established by N.C. Gen. Stat. § 126-4(11) for the Commission to award attorneys’ fees, it properly determined that' petitioner is not entitled to attorneys’ fees in connection with the resolution of his grievance. B. Petitioner also alleged, in his petition for judicial review, that “the Commission’s findings, conclusions of law, and decision were arbitrary and capricious.” Such an allegation would ostensibly require that the trial court employ “whole record” review of the agency decision. However, careful review of the Petition for Review and the contentions contained therein discloses that the substantive issues presented to the superior court were legal issues, i.e., (1) whether the administrative rule is invalid, either as in excess of the Commission’s authority, or as applied to petitioner’s case, and (2) whether the Commission incorrectly interpreted N.C. Gen. Stat. § 126-4(11) in determining that petitioner is not entitled to an award of attorneys’ fees. Thus, petitioner’s argument, essentially, was that the conclusion of the Commission that “petitioner is not entitled to any attorney fees” was affected by error of law, and was properly reviewed “de novo" by the trial court. We conclude the trial court applied the correct standard of review and, in view of our holding in Part II. A. above, that the trial court did so correctly. Finally, petitioner argued in his brief that the Commission’s decision was arbitrary and capricious because it was not filed within the time limitations specified in the 1991 amendment to N.C. Gen. Stat. § 150B-44, requiring that agency decisions be rendered within specified time limitations. However, at oral argument, petitioner conceded that the 1991 amendment is applicable only to contested cases filed on or after 1 October 1991, and that petitioner filed his case before the effective date of the amendment. For the reasons stated, the 2 September 1993 order of the Superior Court of Wake County remanding this matter to the State Personnel Commission, and the 8 August 1996 order of the Superior Court of Orange County affirming the final decisi