BENJAMIN WHITE v. N.C. DEPARTMENT OF CORRECTION
Case Details
- Citation
- 117 N.C. App. 521
- Judge(s)
- Chief Judge ARNOLD and Judge GREENE concur.
- Procedural Posture — the stage the case had reached
- appeal
- State
- North Carolina
- Circuit
- 4th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The court of appeals reversed in part and remanded the case, holding that the employee's involuntary placement on permanent leave without pay constituted a suspension requiring just cause under the State Personnel Act, and that the lower court must determine whether such suspension was made for just cause. The court affirmed the agency's finding that the employee was not a qualified handicapped person under state law.
Excerpt
BENJAMIN WHITE v. N.C. DEPARTMENT OF CORRECTION No. 9312SC862 (Filed 3 January 1995) 1. Public Officers and Employees § 41 (NCI4th)— decision by State Personnel Commission — timeliness Though the State Personnel Commission did not make its decision in this case within 90 days after receiving the official record, it did make its decision within 90 days of its next regularly scheduled meeting; therefore, the decision was timely, and the trial court properly refused to find that the decision was made on unlawful procedure. N.C.G.S. § 150B-44. Am Jnr 2d, Civil Service §§ 52 et seq. 2. Public Officers and Employees § 67 (NCI4th)— inability of petitioner to perform job responsibilities — sufficiency of evidence to support findings There was no merit to petitioner’s argument that the State Personnel Commission erred in finding that he was not able to perform all his duties as a correctional officer where correctional officers were required to rotate through all positions, and the physician who examined petitioner concluded that he could not perform all the duties listed in the job description for a correctional officer. Am Jur 2d, Civil Service §§ 52 et seq. 3. Handicapped Persons § 25 (NCI4th)— inability to perform duties of correctional officer — risk to self and others— petitioner not qualified handicapped person — accommodations not required of respondent Because petitioner could not perform the duties of the job of correctional officer as defined in the job description and petitioner’s condition could create an unreasonable risk to himself, his fellow correctional officers, other inmates, and the public at large, petitioner was not a “qualified handicapped person,” and respondent was under no duty to make accommodations for petitioner’s physical condition. N.C.G.S. §§ 168A-3(4), 168A-3(9)(a). Am Jur 2d, Job Discrimination §§ 111 et seq. Accommodation requirement under state legislation forbidding job discrimination on account of handicap. 76 ALR4th 310. What constitutes handicap under state legislation forbidding job discrimination on account of handicap. 82 ALR4th 26. Who is “qualified” handicapped person protected from employment discrimination under Rehabilitation Act of 1973 (29 USCS §§ 701 et seq.) and regulations promulgated thereunder. 80 ALR Fed. 830. 4. Public Officers and Employees § 67 (NCI4th)— State employee put on permanent leave without pay — suspension — just cause required Respondent’s placement of petitioner on permanent leave without pay amounted to a suspension under the State Personnel Act, and the case is remanded for a determination of whether such suspension was made for just cause. N.C.G.S. § 126-35. Am Jur 2d, Civil Service §§ 52 et seq. Appeal by petitioner from order entered 16 April 1993 by Judge Wiley F. Bowen in Cumberland County Superior Court. Heard in the Court of Appeals 21 April 1994. Petitioner, a former employee of respondent N.C. Department of Correction, filed a grievance with respondent alleging that he had been placed on leave without pay discriminatorily because he had a handicapping condition and because he had earlier filed a grievance concerning his work place. Following a contested case hearing, Administrative Law Judge Robert Reilly, Jr. made a recommended decision that petitioner be reinstated. The full State Personnel Commission (the Commission), however, rejected the ALJ’s recommended decision and affirmed respondent’s decision to place petitioner on leave without pay. Petitioner appealed this decision to the superior court. Following a hearing on the matter, Judge Bowen entered an order on 16 April 1993, affirming the Commission’s order. From this order, petitioner appeals. Reid, Lewis, Deese & Nance, by James R. Nance, Jr., for petitioner-appellant. Attorney General Michael F. Easley, by Assistant Attorney General Valerie L. Bateman, for respondent-appellee. McCRODDEN, Judge. Relying upon fifteen assignments of error, petitioner argues the trial court erred in (I) determining that the Commission’s decision was not made upon unlawful procedure, (II) finding that the Commission’s decision was supported by substantial competent evidence, and (III) determining that the Commission’s order was not affected by error of law. The facts are as follows. In June 1990, petitioner was employed by respondent as a correctional officer at Hoke Correctional Institution in McCain, North Carolina. For security reasons, that facility required all correctional officers to rotate among all of the custody positions. On 22 June 1990, petitioner alleged that he pulled his back while trying to lift a trap door in one of the facility’s guard towers, tower number 3. He requested that he not be assigned to work in that tower until the door was repaired. He subsequently requested not to be assigned to another tower which had a particularly long spiral staircase. On 29 June 1990, petitioner filed a written grievance after he was again assigned to work in tower number 3. In response to this, the Assistant Superintendent Wilford Shields met with petitioner on 3 July 1990. Shields informed petitioner that for the time being he would not be assigned to work in tower number 3, but that he would be required to undergo an examination by a medical specialist to determine whether he could continue to perform his duties as a correctional officer. Petitioner continued to work, and on 24 July 1990, he was instructed that he should not report to work until the evaluation of his back had been performed. Petitioner then began to use his accumulated vacation and sick leave. On 7 August 1990, petitioner filed a claim with the N.C. Industrial Commission for workers’ compensation benefits for the injury to his back allegedly sustained on 22 June 1990. However, respondent refused to accept liability for petitioner’s claim because petitioner had failed to notify respondent of his injury immediately or within 30 days of the injury. On 17 August 1990, Dr. J.N. Ellis, who had examined petitioner, wrote to respondent to report on petitioner’s physical status, stating: In my opinion, based on his past injury and his current problems with degenerative joint disease in the spine, I do not think that he could perform all the duties listed in the job description of a Correctional Officer and [in the] Criminal Justice physical requirements, especially in regard to lifting, carrying and dragging heavy objects, and pursuing foot-fleeing subjects.... I would agree that he should be restricted from lifting greater than 25 pounds and should not do strenuous physical activity. By 22 August 1990, petitioner had exhausted all of his vacation and sick leave, and respondent placed him on unpaid leave status. Dr. Ellis examined petitioner again and wrote a second letter to respondent stating that petitioner was not totally disabled and that he was “capable of maintaining a job that is not as strenuous as described in his job description.” In reviewing a trial court’s consideration of an agency’s final decision, our task is to determine whether the trial court properly applied the standard of review mandated by N.C. Gen. Stat. § 150B-51 (1991). Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 353 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). That statute provides that a reviewing court may reverse or modify an agency’s decision if: [T]he substantial rights of the petitioners may have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are: (3) Made upon unlawful procedure; (4) Affected by other error of law; [or] (5) Unsupported by substantial evidence ... in view of the entire record as submitted. N.C.G.S. § 150B-51. The standard of review the trial court applies depends upon the issues presented on appeal. Brooks, Com’r of Labor v. Rebarco, Inc., 91 N.C. App. 459, 463, 372 S.E.2d 342, 344 (1988). When an appellant alleges that the agency made an error of law, the trial court must review the matter de novo-, however, when the issue is the sufficiency of the evidence to support the agency’s order, it applies the whole record test. Id. The standard of review for administrative decisions is the same in the Court of Appeals as in superior court. Teague v. Western Carolina University, 108 N.C. App. 689, 691, 424 S.E.2d 684, 686, disc. review denied, 333 N.C. 466, 427 S.E.2d 627 (1993). We do not defer to the superior court’s decision. Id., at 691-92, 424 S.E.2d at 686. I. Petitioner’s first argument, that the Commission’s decision was made upon unlawful procedure, implicates the de novo standard of review, and therefore allows us to substitute freely our judgment for that of the Commission. Nonetheless, we find that the Commission’s decision was not grounded upon unlawful procedure. Petitioner argues that the Commission rendered its decision outside the time allowed. An agency such as the Commission has 90 days from the day it receives the official record in a contested case from the Office of Administrative Hearings, or 90 days after its next regularly scheduled meeting, whichever is longer, to make a final decision in a case. N.C. Gen. Stat. § 150B-44 (1991). In this case, the Commission received the official record on 5 December 1991 and rendered its decision on 30 April 1991, more than 90 days after it received the record. However, the Commission’s next regularly scheduled meeting after 5 December 1991 was 4 February. Petitioner concedes that the decision was rendered within 90 days of the 4 February meeting. Based on this admission, we conclude that the Commission timely made its decision and the trial court properly refused to find that the decision was made on unlawful procedure. II. Petitioner next argues that certain of the Commission’s findings were not supported by substantial evidence. We disagree. In addressing this issue, we use the whole record test, which means that we must examine all the competent evidence, including that which contradicts the Commission’s findings, to determine if the Commission’s findings were supported by substantial evidence. Henderson v. N.C. Dept. of Human Resources, 91 N.C. App. 527, 530-31, 372 S.E.2d 887, 889-90 (1988). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Thompson v. Board of Education, 292 N.C. 406, 414, 233 S.E.2d 538, 544 (1977) (quoting Commissioner of Insurance v. Rating Bureau, 292 N.C. 70, 79, 231 S.E.2d 882, 888 (1977)). In applying the whole record test to this case, we are not allowed to replace the Commission’s judgment as between two reasonably conflicting views of the evidence. Id. at 410, 233 S.E.2d at 541. Petitioner argues that the Commission erred in finding that he was not able to perform all his duties both because he was able to work after his injury and because Dr. Ellis stated that he was not totally disabled and could perform some of the duties of a correctional officer. However, we find that the Commission’s finding was well supported. In light of the fact that correctional officers at Hoke were required to rotate through all positions, Dr. Ellis’ conclusion that petitioner could not perform all of the duties listed in the job description for a correctional officer, is certainly substantial evidence supporting the Commission’s finding. We find petitioner’s further assertion, that the Commission erred in finding that his handicap renders him not fit by definition to be a correctional officer, similarly meritless. Dr. Ellis’ opinion that respondent could not perform all of the duties of a correctional officer as listed in the job description adequately supports the Commission’s finding. III. In his next three arguments, petitioner alleges errors of law, again requiring us to review the issues de novo. Petitioner argues that the Commission misapplied the law in determining that the respondent did not owe petitioner a duty to make reasonable accommodations for petitioner’s condition. We disagree. When a “qualified handicapped person” requests that an accommodation be made for his handicapping condition, his employer must investigate whether there are reasonable accommodations that can be made and must make reasonable accommodations for the person’s condition. N.C. Gen. Stat. § 168A-4 (1987). Assuming without deciding that petitioner is a “handicapped person,” as that term is defined in N.C. Gen. Stat. § 168A-3(4) (1987), we conclude that petitioner is not a “qualified handicapped person.” That term means: With regard to employment, a handicapped person who can satisfactorily perform the duties of the job in question, with or without reasonable accommodation, (i) provided that the handicapped person shall not be held to standards of performance different from other employees similarly employed, and (ii) further provided that the handicapping condition does not create an unreasonable risk to the safety or health of the handicapped person, other employees, the employer’s customers, or the public. N.C.G.S. 168A-3(9)(a). The evidence demonstrates that the petitioner could not perform the duties of the job of correctional officer as defined in the job description. Furthermore, given the fact that the job of correctional officer entails the supervision of inmates, we believe that petitioner’s condition, which renders him unable to pursue foot-fleeing inmates or physically subdue them effectively, could create an unreasonable risk to himself, his fellow correctional officers, other inmates and the public at large. As petitioner was not a “qualified handicapped person,” we conclude that respondent was under no duty to make accommodations for petitioner’s physical condition. Next, petitioner argues that the Commission misinterpreted the workers’ compensation law in making its decision. The Commission found that “ [petitioner did not file a worker’s compensation claim about his alleged injury until August 7, 1990, even though departmental policy, about which he knew, required him to notify the agency immediately or, at the latest, within 30 days of his work-related injury.” Petitioner does not contend that he actually filed a claim within 30 days of his injury or that he did not know of the respondent’s policy concerning workers’ compensation claims. Rather, he claims that “[t]his finding adds nothing to the decision except to give the department an excuse as to why it didn’t give [petitioner] an accommodation.” We agree that this finding added nothing to the Commissions order but, having determined that respondent did not owe petitioner the duty to make accommodation for his condition, find that its inclusion was harmless. We reject these assignments of error. Finally, petitioner argues that the Commission erred in failing to conclude, as the AU had determined, that by placing petitioner on unpaid leave, respondent actually suspended him without cause. The Commission accepted the AU’s finding that petitioner was a permanent State employee subject to the State Personnel Act, N.C. Gen. Stat. §§ 126-1 to -88 (1993). However, the Commission refused to adopt each of the AU’s conclusions of law. In his first conclusion, the AU stated: The petitioner was a permanent State employee subject to the State Personnel Act. Involuntary placement on permanent leave without pay status for alleged inability to perform the duties of the job is the equivalent of being discharged, suspended and involuntarily separated for disciplinary reasons under GS 126-35. The respondent is required to establish just cause. The respondent failed to establish the required substantive just cause. Furthermore, the respondent failed to afford the petitioner the benefits of progressive warnings required by GS 126-35. It is arbitrary and capricious to deny the petitioner the opportunity to establish that he is able to perform the essential duties of a correctional officer despite his back injury. State agencies may not discharge or suspend a permanent State employee except for just cause. N.C.G.S. § 126-35. Before subjecting a State employee to such disciplinary action, the State shall furnish him with a written statement of the grounds for the action and of the employee’s appeal rights. Id. This section requires that a State employee be given three warnings before he may be terminated. Jones v. Dept. of Human Resources, 300 N.C. 687, 691, 268 S.E.2d 500, 502 (1980). It is uncontested that petitioner received no such warning. Thus, the question presented for our de novo review is: when respondent placed petitioner on leave without pay, was this the equivalent of suspension for disciplinary reasons within the meaning of N.C.G.S. § 126-35? We conclude that it was. Respondent asserts that leave without pay is not a sanction but a benefit offered to State employees. It is true that Subchapter IE of Title 25 of the North Carolina Administrative Code, which contains the regulation relating to leave without pay, is entitled “Employee Benefits.” It is also true that a State agency is required to reinstate an employee who takes leave without pay at his previous position or at one of like seniority, status and pay. N.C. Admin. Code tit. 25, r. IE. 1104 (January 1994). However, the leave without pay described in Subchapter IE is voluntary leave, initiated by the employee. See N.C. Admin. Code tit. 25, r. IE. 1103 (“The employee shall apply in writing to his supervisor for leave without pay.”). In this case, petitioner made no application for leave without pay. Instead, respondent placed him involuntarily on sick leave until his accumulated time elapsed, then required him to expend his accumulated vacation, and finally placed him on leave without pay. This was, in essence, a suspension, which could not be made without just cause. Neither the Commission nor the trial court made any findings relative to the issue of whether respondent suspended petitioner without just cause. Having concluded that the respondent’s placement of petitioner on permanent leave without pay amounted to a suspension under the State Personnel Act, we remand the case for a determination of whether such suspension was made for just cause. Remanded. Chief Judge ARNOLD and Judge GREENE concur. Opinion written and concurred in prior to 16 December 1994.
Similar Rulings
JOEL T. LEWIS, Petitioner v. N.C. DEPARTMENT OF CORRECTION, Respondent No. COA01-1386 (Filed 15 October 2002) Public Officers and Employees— sexual remarks — personal misconduct or sexual harassment — appellate review The trial court did not err by reversing the decision of the State Personnel Commission to demote and transfer a correctional sergeant who had made sexual remarks to two female correctional officers. Although grounds may exist for establishing unacceptable personal conduct, the issue specified by the Administrative Law Judge (and neither rejected nor amended by the SPC) was whether there was just cause to demote petitioner because of sexual harassment, which does not appear to have occurred. Judge McCullough dissenting. Appeal by respondent from order entered 10 August 2001 by Judge A. Moses Massey in Stokes County Superior Court. Heard in the Court of Appeals 21 August 2002. Anderson D. Cromer, PC, by Anderson D. Cromer, for petitioner. Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for respondent. BRYANT, Judge. On 7 September 1999, petitioner Joel T. Lewis initiated a petition for a contested case hearing pursuant to N.C.G.S. § 150B-23(a), appealing the 25 May 1999 decision of respondent N.C. Department of Correction (DOC) to demote and transfer Lewis from the position of correctional sergeant at Forsyth Correctional Center to the position of correctional officer with a ten percent reduction in pay. Lewis’s demotion was for just cause, premised on several “unprofessional comments of a sexual nature” that he made to two female correctional officers with whom he was employed. The unprofessional comments included offering money to correctional officer Pleasants to go with him to the beach, telling officer Pleasants that she was being stingy with her “coochie,” and asking officer Pleasants and fellow correctional officer Lattimore what color panties they were wearing. The contested case came for hearing before Administrative Law Judge (ALJ) Robert Roosevelt Reilly, Jr:, on 25 April 2000. On 31 May 2000, Judge Reilly issued a recommended decision in favor of Lewis. The State Personnel Commission (SPC) declined to adopt the recommended decision as written and instead adopted an amended decision and order dated 31 August 2000 in favor of DOC. From the decision and order of the SPC, Lewis petitioned for judicial review. This matter came for judicial review at the 3 January 2001 term of Stokes County Superior Court with the Honorable A. Moses Massey presiding. By order filed 10 August 2001, the superior court reversed the decision and order of the SPC to demote and transfer Lewis. DOC appeals. Standard of review At the trial court level, the court must first determine de novo whether the SPC heard new evidence after receiving the AU’s recommended decision; and if the SPC did not adopt the ALJ’s recommended decision, whether the SPC stated specific reasons explaining its new findings. See N.C.G.S. § 150B-51(a) (2001). After the initial determination is made, the court must then determine de novo whether an error of law occurred. See Associated Mechanical Contractors, Inc. v. Payne, 342 N.C. 825, 831, 467 S.E.2d 398, 401 (1996). If the allegation is that the findings of fact and conclusions of law are unsupported by competent evidence or are arbitrary and capricious, then the court must utilize the whole record test. See Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). When this Court reviews appeals from superior court either affirming or reversing the decision of an administrative agency, our scope of review is twofold, and is limited to determine: (1) whether the superior court applied the appropriate standard of review and, if so, (2) whether the superior court properly applied this standard. In re Appeal by McCrary, 112 N.C. App. 161, 166, 435 S.E.2d 359, 363 (1993). However, this Court’s obligation to review a superior court order for errors of law can be accomplished by addressing the dis-positive issue(s) before the agency and the superior court without examining the scope of review utilized by the superior court and remanding the case if the standard of review utilized by the superior court cannot be ascertained. Capital Outdoor, Inc. v. Guilford County Board of Adjustment, 152 N.C. App. 474, 475, 567 S.E.2d 440, 441 (2002). Upon review of the superior court’s order, it appears that the superior court utilized the appropriate standard of review as to each issue presented. This Court must now determine whether it properly applied the standard of review. Dispositive issue DOC presents several issues on appeal, however, we find the dis-positive issue to be whether the superior court erred in determining that Lewis’s conduct had to rise to the level of sexual harassment to justify his demotion and transfer. For the following reasons, we affirm the superior court’s conclusion on this issue. N.C.G.S. § 126-35 (2001), states that “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” N.C. Admin. Code tit. 25, r.lJ0604(b) (June 2002), defines just cause as discipline or dismissal based on either unsatisfactory job performance or unacceptable personal conduct. N.C. Admin. Code tit. 25, r.lJ0614(i) (June 2002), enumerates several examples of unacceptable personal conduct including: 1) “conduct for which no reasonable person should expect to receive a prior warning; or” 2) “job-related conduct which constitutes a violation of state or federal law; or” 3) “the willful violation of known or written work rules; or” 4) “conduct unbecoming a state employee that is detrimental to state service; or” 5) “the abuse of client(s), patient(s), student(s), or person(s) over whom the employee has charge or to whom the employee has a responsibility. . . .” Effective 1 September 1992, DOC implemented a sexual harassment policy. The SPC concluded, Sexual harassment usually involves an employee being personally subjected to one or more of the following behaviors: (a) Unwelcome sexual advances; (b) Acts of gender-based animosity (hostile conduct based on the victim’s gender); or (c) Sexually charged workplace behavior (conduct that is offensive on the basis of gender to persons whether or not they are the targets of the conduct). [] Sexual harassment is unlawful sex discrimination under one or two legal theories: “quid pro quo” or “hostile environment.” All three forms of behavior referenced may constitute a hostile environment, but a claim of quid pro quo harassment necessarily involves unwelcome sexual advances. Sexual harassment claims are usually analyzed as disparate treatment claims. [] The essence of a quid pro quo claim is that an individual has been forced to choose between suffering an employment detriment and submitting to sexual demands. . . . [] The essence of a hostile environment claim is that an individual has been required to endure a work environment that, while not necessarily causing any direct economic harm, or even significant psychological or emotional harm, substantially affects a term or condition of employment. . . . Lewis was a career State employee prior to his demotion/transfer and was subject to the provisions of N.C.G.S. § 126, et seq. (State Personnel Act). By letter dated 25 May 1999, Lewis was notified that an investigation of the incidents at issue, revealed that he made unprofessional comments of a sexual nature to both officers Pleasants and Lattimore. In addition, the letter stated that a recommendation for his demotion for unacceptable personal conduct had been approved effective 1 June 1999. After an unsuccessful internal appeal, Lewis appealed to the Office of Administrative Hearings for a contested case hearing. By decision dated 31 August 2000, the presiding ALJ specified the issue as, “Did the respondent have just cause to demote petitioner because of sexual harassment?” The SPC did not reject nor amend this articulation of the issue. Rather the SPC stated in its decision and order, “Sexual harassment is unlawful sex discrimination under one of two legal theories: ‘quid pro quo’ or ‘hostile environment’. . . . [Petitioner's behavior must be analyzed to determine whether his behavior created a hostile working environment that substantially affected a term or condition of Ms. Pleasant’s (sic) employment.” The SPC went further to conclude, “Regardless of whether Petitioner’s conduct rose to the level of sexual harassment as defined above, Petitioner’s conduct did constitute personal misconduct ‘for which no reasonable person should expect to receive a prior warning,’ thereby subjecting Petitioner to disciplinary action as provided for in 25 NCAC 1J.0162 and .0613 and in DOC’s Disciplinary Policy and Procedures, Section 6, p.38, resulting in his demotion and transfer.” Based upon our reading of the case, the issue before the ALJ was whether just cause existed to demote Lewis because of sexual harassment. The SPC did not articulate a different issue for consideration. The SPC concluded there were no allegations of quid pro quo sexual harassment in this case. In addition, the SPC found that “Neither Ms. Pleasants nor Ms. Lattimore stated that the Petitioner’s statements had or may have had [] direct employment consequences resulting from either the acceptance or rejection of the statements or that the statements created an intimidating, hostile or offensive environment or that the statements interfered with their performance.” Notwithstanding, the SPC ordered that the recommended decision of the AU be rejected and respondent’s disciplinary action for unacceptable personal conduct be upheld. In light of the above noted findings and conclusions, it appears that unacceptable personal conduct based on sexual harassment did not occur as sexual harassment has been previously defined. Although several grounds may exist for establishing unacceptable personal conduct, the ground specified as the basis for Lewis’s demotion and transfer was sexual harassment. The superior court did not err in reversing the decision and order of the SPC. Therefore, this assignment of error is overruled and we affirm the order of the superior court. AFFIRMED. Judge McGEE concurs. Judge McCULLOUGH dissents with' a separate opinion. McCULLOUGH, Judge, dissenting. The majority affirms a ruling of the superior court reversing an order of the State Personnel Commission (SPC) which demoted, transferred and decreased the respondent’s salary due to comments of a crude sexual nature made by respondent to female correctional officers with whom he worked. From this ruling, I respectfully dissent. The record shows that respondent offered a female correctional officer money to go to the beach with him, stated that she was being stingy with her “coochie,” that she would have to sell a lot of “coochie” to make her car payment, and asked this officer and another officer what color underpants they were wearing. Both the Administrative Law Judge (ALJ) who originally heard this matter, and the superior court judge who heard the Petition For Judicial Review, concluded that, to be actionable, (1) sexual comments had to rise to the level of sexual harassment as defined by the Department of Correction (DOC); and (2) such comments that do not rise to that level cannot qualify as “unacceptable personal behavior,” as that term is defined in the Office of State Personnel Policy Manual, codified at N.C. Admin. Code tit. 25, r.1J.0614(i)(1) (June 2002). In affirming, the majority concurs with the shared viewpoint expressed by the ALJ and the superior court. The majority opinion sets forth the DOC sexual harassment policy in detail. Upon reading the DOC policy statement, it is apparent that not all crude sexual remarks meet the test set forth therein. I would reverse the order of the superior court which reversed respondent’s discipline, as I believe that the SPC gave an adequate explanation of why it did not adopt the reasoning and conclusions of the ALJ. A point-by-point refutation of the ALJ’s findings and conclusions is not required. Webb v. N.C. Dept. of Envir., Health and Nat. Resources, 102 N.C. App. 767, 404 S.E.2d 29 (1991). I believe the SPC addressed the case adequately and complied with N.C. Gen. Stat. § 150B-51 (2001) when it included Conclusion of Law No. 8 in its order. That conclusion stated: 8. Regardless of whether Petitioner’s conduct rose to the level of sexual harassment as defined above, Petitioner’s conduct did constitute personal misconduct, “for which no reasonable person should expect to receive a prior warning,” thereby subjecting Petitioner to disciplinary action as provided for in 25 NCAC 1J.0612 and .0613 and in DOC’s Disciplinary Policy and Procedures, Section 6, p. 38, resulting in his demotion and transfer. Respondent was well aware that comments of a sexual nature could lead to some form of discipline, whether or not they rose to the level of sexual harassment. The record indicates that, on 19 November 1996, respondent signed a Human Relations in the Workplace memorandum to that effect. His conduct was therefore a willful violation of a work rule, which is also unacceptable personal conduct for which he could be disciplined. See N.C. Admin. Code tit. 25, r.1J.0614(i)(4); and North Carolina Department of Correction v. McNeely, 135 N.C. App. 587, 521 S.E.2d 730 (1999). The majority seems to hold that, although the SPC inserted Conclusion of Law No. 8 into its Order as an alternative basis for discipline, such was of no import. The majority then accepts the superior court’s determination that the sole issue before that court (and, by implication, this Court as well) was whether the complained-of comments constituted sexual harassment as defined by the DOC policy statement. With this assessment, I disagree. In so doing, I believe the superior court made an error of law, which we review de novo. Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 397 S.E.2d 350 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). While crude sexual comments may not always rise to the level of sexual harassment as defined in the DOC policy statement, they are nevertheless capable of subjecting an employee to discipline. The SPC never attempted to rely solely on sexual harassment as the only ground for discipline, and this Court should not overlook the SPC’s attempt to base the discipline imposed on its Conclusion of Law No. 8 set forth above. In summary, I would reverse the order of the superior court and uphold the SPC and the discipline it imposed.
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