Retaliation Cases

BENJAMIN F. McCALLUM, Plaintiff-Appellee v. NORTH CAROLINA COOPERATIVE EXTENSION SERVICE OF N.C. CAROLINA STATE UNIVERSITY and PATRICIA BARBER in her official capacity, Defendants-Appellants No. COA99-1434 (Filed 6 February 2001) 1. Appeal and Error— appealability — denial of summary judgment — collateral estoppel — substantial right The denial of a motion for summary judgment based on collateral estoppel may affect a substantial right and defendants’ appeal, although interlocutory, was properly before the Court of Appeals. 2. Collateral Estoppel and Res Judicata— collateral estop-pel — state constitutional claim — issues previously litigated in federal court Collateral estoppel may prevent the re-litigation of issues that are necessary to the decision of a North Carolina constitutional claim and that have been previously decided in federal court. Holding that state courts are never barred from hearing state constitutional claims, even when such issues have been previously litigated in the federal courts, would violate the underlying principle of judicial economy that precipitated the creation of the collateral estoppel and res judicata doctrines. 3. Collateral Estoppel and Res Judicata— collateral estop-pel — employment termination — discriminatory intent and improper motivation — previously litigated in federal court The trial court erred when it refused to grant defendants’ motion for summary judgment based on collateral estoppel of plaintiff’s claims of racial discrimination, equal protection violations, and retaliatory discharge. The issues of defendants’ discriminatory intent and improper motivation were tried in federal court after full discovery, with resolution of those issues being material and necessary to the judgment in that court. 4. Public Officers and Employees— state employee — termination — due process — employee at will An Agricultural Extension Agent was barred from bringing a due process claim arising from his discharge because he was an employee-at-will with no cognizable property right in his employment. A letter appointing defendant County Extension Director upon which plaintiff relied to contend that there were mutually explicit understandings of continued employment revealed no understanding regarding plaintiffs status as an Agricultural Extension Agent, a document concerning tenure for the County Extension Director merely expressed the possibility of continued employment as an agent if plaintiff failed to perform satisfactorily in the Director position, and, although the plaintiffs termination was not first discussed with the Richmond County Board of Commissioners, as had been agreed in a memorandum of understanding between the Board and defendants, the Board’s role did not extend to actual authority over the extension service’s ability to discharge employees. Appeal by defendants from order entered 13 July 1999 by Judge Michael E. Beale in Richmond County Superior Court. Heard in the Court of Appeals 21 September 2000. In August 1995, defendant North Carolina Cooperative Extension Service (NCCES) of North Carolina State University discharged plaintiff Benjamin F. McCallum from his employment as an Agricultural Extension Agent. In April 1997, plaintiff filed a complaint in Richmond County Superior Court against NCCES and the District Extension Director for Richmond County, alleging retaliatory discharge and equal protection violations under the United States Constitution, race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, and a violation of his rights under Article I, §§ 1, 12, 14, and 19 of the North Carolina Constitution. Defendants removed the action to the United States District Court for the Middle District of North Carolina. After the completion of discovery, defendants moved for summary judgment. On 4 January 1999, the United States District Court granted defendants’ motion for summary judgment on all claims based on violations of federal law and dismissed without prejudice the claims based on alleged violations of the North Carolina Constitution. In granting summary judgment, the federal court stated that plaintiff had failed to show any discriminatory intent by NCCES. Further, the federal court found that plaintiff could not show a causal connection between any constitutionally protected activities and his discharge from employment. In February 1999, plaintiff filed a second complaint in Richmond County Superior Court, in which he again alleged that he was discharged from employment in violation of the North Carolina Constitution. Defendants moved for summary judgment, contending that plaintiffs claims for violation of equal protection rights, racial discrimination, and retaliatory discharge were barred under the doctrine of collateral estoppel because of the federal court adjudications, and that plaintiffs due process claim was barred because plaintiff was an at-will employee with no property right in his employment. Defendants further contended that, if plaintiff were subject to the State Personnel Act, then he had an alternate remedy under that Act which he had not exhausted. On 13 July 1999, the trial court denied defendants’ motion for summary judgment, and they appealed to this Court. McSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff appellee. Attorney General Michael F. Easley, by Assistant Attorney General Celia Grasty Lata, for defendant appellants. HORTON, Judge. The denial of summary judgment is not a final judgment, but rather is interlocutory in nature. We do not review interlocutory orders as a matter of course. Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381, reh’g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). If, however, “the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate reviewf,]” we may review the appeal under N.C. Gen. Stat. §§ 1-277(a) and 7A-27(d)(1). N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995). The moving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party. Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). Whether a substantial right is affected is determined on a case-by-case basis. Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982). We have ruled that “appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review.” Price v. Davis, 132 N.C. App. 556, 558-59, 512 S.E.2d 783, 785 (1999); Derwort v. Polk County, 129 N.C. App. 789, 790, 501 S.E.2d 379, 380 (1998). As a state agency, NCCES is shielded by sovereign immunity from suits based on torts committed while performing a governmental function. Therefore, to the extent defendants’ appeal is based on an affirmative defense of immunity, this appeal is properly before us. Further, our Supreme Court has ruled that the denial of a motion for summary judgment based on the defense of res judicata (or claim preclusion) is immediately appealable. Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993). Under the doctrine of res judicata, a final judgment on the merits in a prior action precludes a second suit involving the same claim between the same parties. Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986). Denial of a summary judgment motion based on res judicata raises the possibility that a successful defendant will twice have to defend against the same claim by the same plaintiff, in frustration of the underlying principles of claim preclusion. Bockweg, 333 N.C. at 491, 428 S.E.2d at 161. Thus, the denial of summary judgment based on the defense of res judicata can affect a substantial right and may be immediately appealed. Id. Like res judicata, collateral estoppel (issue preclusion) is “ ‘designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally.’ ” King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973) (quoting Commissioner v. Sunnen, 333 U.S. 591, 599, 92 L. Ed. 898, 907 (1948)). Under collateral estoppel, parties are precluded from retrying fully litigated issues that were decided in any prior determination, even where the claims asserted are not the same. McInnis, 318 N.C. at 428, 349 S.E.2d at 557. The denial of summary judgment based on collateral estoppel, like res judicata, may expose a successful defendant to repetitious and unnecessary lawsuits. Accordingly, we hold that the denial of a motion for summary judgment based on the defense of collateral estoppel may affect a substantial right, and that defendants’ appeal, although interlocutory, is properly before us. Summary judgment is appropriate when there is no genuine issue as to any material fact, and a party is entitled to a judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (1999). Defendants assert, on two separate grounds, that they are entitled to such judgment. Defendants first contend that issues dispositive of plaintiffs claims of racial discrimination, equal protection violations and retaliatory discharge have already been litigated to final judgment by the federal court, and that collateral estoppel bars re-litigation of these issues. Second, they argue that plaintiff was an at-will employee with no property right in his employment. We will consider each argument separately. I. Collateral Estoppel Under the doctrine of collateral estoppel, when an issue has been fully litigated and decided, it cannot be contested again between the same parties, even if the first adjudication is conducted in federal court and the second in state court. King, 284 N.C. at 359, 200 S.E.2d at 807. Plaintiff argues, however, that collateral estoppel cannot bar a state constitutional claim based on a denial of equal protection or due process, regardless of previous federal court adjudications, because only North Carolina courts can “ ‘[answer] with finality’ ” “ ‘[w]hether rights guaranteed by the Constitution of North Carolina have been provided....'" Evans v. Cowan, 122 N.C. App. 181, 184, 468 S.E.2d 575, 577, disc. review denied, appeal retained, 343 N.C. 510, 471 S.E.2d 634, affirmed, 345 N.C. 177, 477 S.E.2d 926 (1996) (quoting State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254, 260 (1984)). Plaintiff contends that since “[o]ur courts . . . when construing provisions of the North Carolina Constitution, are not bound by opinions of the federal courts ‘construing even identical provisions in the Constitution of the United States[,]’ ” defendants’ collateral estoppel argument fails. Evans, 122 N.C. App. at 183-84, 468 S.E.2d at 577. Plaintiff also bases his argument upon our recent decision in City-Wide Asphalt Paving, Inc. v. Alamance County, 132 N.C. App. 533, 513 S.E.2d 335, appeal dismissed and disc. review denied, 350 N.C. 826, 537 S.E.2d 815 (1999), which held that neither res judicata nor collateral estoppel barred plaintiff’s state constitutional claims, even though plaintiff’s claims under the federal constitution had been previously litigated in federal court. We find neither Evans nor City-Wide controlling in the instant case. Unlike the case before us, the issue before the Evans Court was “whether plaintiff’s state constitutional claims against defendants are barred by res judicata”—not by collateral estoppel. Evans, 122 N.C. App. at 183, 468 S.E.2d at 577. In Evans, plaintiff’s claims, based on violations of both the federal and the state constitutions, were initially litigated in federal court, which granted summary judgment to defendants as to all but the state constitutional claims. On remand to state court, defendants argued that plaintiffs claims under the state constitution were identical to plaintiffs claims under the federal constitution, and therefore plaintiffs subsequent litigation was barred under the doctrine of res judicata. Affirming that North Carolina courts “ ‘have the authority to construe our own constitution differently from the construction ... of the Federal Constitution,’ ” this Court held that “the claims asserted by the plaintiff in the State Court on the basis of the North Carolina Constitution are not identical to the claims asserted by the plaintiff in the Federal Court on the basis of the United States Constitution . . . .” Evans, 122 N.C. App. at 184, 468 S.E.2d at 577. Thus, concluded the Court, the doctrine of res judi-cata did not bar plaintiffs claim. We also find the decision in City-Wide distinguishable from the instant case. There, plaintiff appealed its state constitutional law claims to this Court from the trial court’s grant of defendants’ summary judgment motion. Confusing the principles of collateral estop-pel with those of res judicata, defendants argued that, because plaintiffs claims under the U.S. Constitution had been previously determined, and because those claims were identical to plaintiffs claims based on violations of the North Carolina Constitution, plaintiff was collaterally estopped from re-litigating “identical issues . . . determined by the federal court.” City-Wide, 132 N.C. App. at 536, 513 S.E.2d at 337. Defendants failed to specify, however, what the “identical issues” decided by the federal court were. This Court rejected defendants’ argument, reaffirming Evans’ principle that claims brought under the North Carolina Constitution must be independently determined from claims brought under the U.S. Constitution. Thus, neither res judicata nor collateral estoppel barred plaintiffs claims. Like the defendants in City-Wide, plaintiff in the instant case conflates the doctrines of collateral estoppel and res judicata. The CityWide defendants argued that, because the claims in the federal and state courts were essentially identical, the issues to be decided by each court were necessarily the same and collateral estoppel barred their re-litigation. Here, plaintiff contends that, because his claims in federal and state court are different, the issues cannot be the same, and that therefore collateral estoppel cannot apply. We disagree. Although plaintiff’s present state court claims are different from those brought in federal court, his state court claims may contain issues previously litigated and determined in the federal court. Thus, plaintiff may be collaterally estopped from re-litigating these issues. To hold otherwise, as plaintiff suggests we should, would mean that state courts are never barred from hearing state constitutional claims or issues pertinent to such claims, even when such issues have been previously litigated in the federal courts. Such a finding would directly violate the underlying principle of judicial economy that precipitated the creation of the collateral estoppel and res judicata doctrines as expressed in King and Bockweg. We reaffirm, therefore, that collateral estoppel may prevent the re-litigation of issues that are necessary to the decision of a North Carolina constitutional claim and that have been previously decided in federal court. To determine whether collateral estoppel prevents the re-litigation of issues presented by plaintiff in the instant case, we must first ascertain whether issues raised by the present litigation and dispositive of plaintiffs claim are identical to issues decided by the federal court. Collateral estoppel applies when the following requirements are met: (1) [t]he issues to be concluded must be the same as those involved in the prior action; (2) in the prior action, the issues must have been raised and actually litigated; (3) the issues must have been material and relevant to the disposition of the prior action; and (4) the determination made of those issues in the prior action must have been necessary and essential to the resulting judgment. King, 284 N.C. at 358, 200 S.E.2d at 806. Here, plaintiff asserts claims under the North Carolina Constitution against defendants for racial discrimination, equal protection violations and retaliatory discharge. We will consider the applicability of collateral estoppel for each claim in turn. To prevail upon a claim for racial discrimination in either a federal or state court in North Carolina, a plaintiff must establish improper motivation on defendant’s part by proffering evidence of discriminatory intent. Dept. of Correction v. Gibson, 308 N.C. 131, 138, 301 S.E.2d 78, 83 (1983) (adopting federal guidelines for discri+mination cases in North Carolina and noting that the plaintiff carries the burden of showing intentional discrimination by defendant). In the instant case, the issue of whether defendants intentionally discriminated against plaintiff was fully litigated in the federal court. After reviewing all of the evidence, the federal court found that plaintiff failed to present “any ‘direct evidence of a purpose [by defendants] to discriminate [against plaintiff] or circumstantial evidence of sufficiently probative force to raise a genuine issue of material fact.’ ” The federal court then granted defendants’ motion for summary judgment on plaintiff’s claim for racial discrimination. We hold that the issue of discriminatory intent by defendants was conclusively determined in the federal court, and thus plaintiff is collaterally estopped from re-litigating that issue in this action. Plaintiff’s failure in federal court to establish discriminatory intent by defendants also bars litigation of his equal protection violation claim in state court. In order to prevail upon an equal protection violation claim under the North Carolina Constitution, “the burden is upon the complainant to show the intentional, purposeful discrimination upon which he relies.” Kresge Co. v. Davis, 277 N.C. 654, 662, 178 S.E.2d 382, 386 (1971). As the federal court has already conclusively ruled against plaintiff upon the issue of discriminatory intent by defendants, collateral estoppel prevents the plaintiff from proceeding on this claim. Plaintiff also alleges a claim against defendants for retaliatory discharge. During his employment with NCCES, plaintiff was President of the North Carolina Association of Extension Minorities (NCAEM), a group organized to promote African-American interests within the extension agency. Plaintiff asserts that in his capacity as President, he often “spoke out on matters of public concern regarding trends and activities within the Extension Service that were adverse to the interests of African American extension agents and farmers.” Plaintiff argues that defendants fired him for his NCAEM leadership, thus violating his constitutionally protected rights of freedom of speech and association. In challenging an adverse employment decision for violation of constitutional rights, an employee must show that the “protected activity was a substantial or motivating factor in the employer’s decision.” Lenzer v. Flaherty, 106 N.C. App. 496, 509, 418 S.E.2d 276, 284, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). Although evidence of retaliation may often be completely circumstantial, the causal connection between the protected activity and the discharge “must be something more than speculation.” Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 237, 382 S.E.2d 874, 882, disc. review denied, 325 N.C. 704, 388 S.E.2d 449 (1989). In the instant case, plaintiff argued in the federal court that his membership in NCAEM, among other things, triggered defendants’ decision to fire him. The federal court found no evidence, direct or indirect, to support plaintiffs claim, stating that “[n]o reasonable jury could find that McCallum’s activities with the NCAEM . . . were a ‘motivating part’ of his termination . . . .” Thus, the federal court ruled against plaintiff on the exact issue that plaintiff now raise

BETTY J. SOUTHER, Petitioner v. NEW RIVER AREA MENTAL HEALTH DEVELOPMENT DISABILITIES AND SUBSTANCE ABUSE PROGRAM, Respondent No. COA99-1092 (Filed 6 February 2001) Public Officers and Employees— termination — insubordination — evidence insufficient The trial court correctly reversed a decision of the State Personnel Commission, which had upheld the termination of petitioner’s employment, where petitioner had worked as an habilitation assistant providing care in the home of a severely disabled client; petitioner complained of sexual harassment by the father of the client; respondent allowed petitioner to take vacation time and to care for the client in petitioner’s own home while undertaking an investigation; respondent concluded that petitioner’s allegations were without merit and asked petitioner to resume caring for the client in the client’s home; and petitioner’s employment was terminated when she refused. Petitioner had the burden of proving that her termination was not for just cause; respondent contended that petitioner was dismissed for insubordination following her failure to attend a meeting with her supervisors and her refusal to provide service to her client. Based upon a de novo review of the proceeding, the refusal to attend the meeting did not constitute insubordination because she had a. reasonable understanding from State Personnel Guidelines that she was entitled to an initial meeting with only her immediate supervisor rather than a joint meeting with several people, one of whom she perceived to be hostile, when she was not aware that her claims had been investigated and feared that she might lose her job. Furthermore, her refusal to comply with the directive to return to the client’s home was reasonable under circumstances in which she was not aware that her complaints had been investigated and was given no alternative to returning to what she considered an unacceptable working environment. Judge Edmunds dissenting prior to 31 December 2000. Appeal by respondent from order entered 21 May 1999 by Judge L. Todd Burke in Superior Court, Wilkes County. Heard in the Court of Appeals 17 May 2000. Legal Services of the Blue Ridge, by Charlotte Gail Blake, for petitioner-appellee. McElwee Firm, PLLC, by Elizabeth K. Mahan and William H. McElwee, III, for respondent-appellant. WYNN, Judge. Respondent New River Area Mental Health appeals from the trial court’s order reversing its termination of petitioner Betty J. Souther. We affirm. New River employed Souther in September 1988 as an habilitation assistant for the Community Alternatives Program For People With Mental Retardation. The Community Alternatives Program allows disabled individuals to avoid institutionalization by receiving care at home. Under the program, habilitation assistants provide personal and respite care to the disabled participants. The assistants typically serve one client at a time. During Souther’s employment with New River, Randy Johnson was her immediate supervisor; Suzanne Tate was the Director of Developmental Disabilities and Johnson’s supervisor; and, Dorothy Beamon was the Area Director and supervisor of New River’s mental health programs. In 1988, New River assigned Souther to care for Robinette Jenkins, the daughter of Lester and Virginia Jenkins. Robinette was severely disabled and required constant assistance with personal maintenance. In late June or early July 1993, Souther informed Lester Jenkins that she was having trouble with her neighbors; so, he allowed her to move her trailer onto his lot. Later in 1993, Souther complained to her immediate supervisor, Johnson, that Mr. Jenkins was sexually harassing her and expressed concerns about working in the Jenkins’ home. Upon receiving these complaints, New River allowed Souther to take vacation time and to care for Robinette in her own home; at the same time, New River undertook an investigation of her complaints. New River’s investigation concluded that Souther’s allegations were without merit. Accordingly, at a meeting on 20 September 1993, Beamon asked Souther to resume assisting Robinette in the Jenkins’ home. Souther, however, refused. Thereafter, New River terminated her employment. Souther appealed to the Office of Administrative Hearings. After conducting an evidentiary hearing, the assigned Administrative Law Judge entered a Recommended Decision to affirm the dismissal for just cause. Souther appealed to the State Personnel Commission, which conducted a whole record review and adopted the recommended findings and conclusions of the Administrative Law Judge and recommended that New River “find and conclude that it had just cause to terminate Souther for her unacceptable personal conduct due to her refusal to obey a reasonable work [order].” Thereafter, Souther brought a Petition for Judicial Review before the Superior Court in Wilkes County. The trial court granted the petition and, “after hearing the arguments of counsel and reviewing the official record, including the transcript of the administrative hearing, and the memo-randa submitted by counsel,” found that New River’s decision to terminate Souther was “arbitrary and capricious and not supported by substantial evidence in light of the whole record.” From the trial court’s order reversing Souther’s termination, New River appeals. Our review of a superior court order regarding an agency decision consists of: “ ‘(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.’ ” ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dep’t of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). The proper standard for the superior court to apply depends upon the issues presented on appeal. Where the petitioner alleges that the agency decision was either unsupported by the evidence, or arbitrary and capricious, the superior court applies the “whole record test” to determine whether the agency decision was supported by substantial evidence contained in the entire record. Where the petitioner alleges that the agency decision was based on error of law, the reviewing court must examine the record de novo, as though the issue had not yet been considered by the agency. Avant v. Sandhills Center for Mental Health, 132 N.C. App. 542, 546, 513 S.E.2d 79, 82 (1999) (internal citations omitted). Both parties contend the superior court, in reviewing the Administrative Law Judge’s decision, appropriately employed the “whole record” standard. However, this Court has held that a superior court’s determination of whether a termination was for “just cause” based upon personal misconduct is a question of law, and that questions of law are to be reviewed de novo. See Amanini, 114 N.C. App. at 677, 678, 443 S.E.2d at 119, 120. A de novo review “requires a court to consider a question anew, as if not considered or decided by the agency.” Id. at 674, 443 S.E.2d at 118. We note that the Amanini court observed that “[separate panels of this Court [] appear to have reached differing conclusions concerning the proper standard of appellate review” of orders of the superior court affirming or reversing a decision of an administrative agency. Id. at 675, 443 S.E.2d at 118. After an extended review and discussion of the issue, the Amanini court held that the proper standard of review is whether the superior court applied the proper scope of review and did so properly. Id. at 675-76, 443 S.E.2d at 118-19. Despite some continuing inconsistencies within the court, see Mendenhall v. N.C. Dep’t of Hum. Res., 119 N.C. App. 644, 650, 459 S.E.2d 820, 824 (1995) (citation omitted) (“When an appellate court reviews the decision of a lower court (as opposed to reviewing an administrative agency’s decision on direct appeal), the scope of review is the same as for other civil cases. However, this review also requires an examination of the entire record.”), we believe that the analysis in Amanini is persuasive. We will employ the proper standard of review regardless of that employed by the reviewing trial court. See Amanini, 114 N.C. App. at 675, 677, 443 S.E.2d at 118, 119 (“[T]he manner of our review is [not] governed merely by the label an appellant places upon an assignment of error; rather, we first determine the actual nature of the contended error, then proceed with an application of the proper scope of review. [] [W]here the initial reviewing court should have conducted de novo review, this Court will directly review the State Personnel Commission’s decision under a de novo review standard.”) A state employee may be dismissed only for “just cause.” N.C. Gen. Stat. § 126-35 (1995). An employee challenging his or her termination for just cause has the burden of proving that the agency’s decision was improper. As our Supreme Court has said: [A]n employee terminated pursuant to the “just, cause” provision of N.C.G.S. § 126-35 should bear the burden of proof in an action contesting the validity of that termination. Petitioner, the terminated employee, is the party attempting to alter the status quo. The burden should appropriately rest upon the employee who brings the action, even if the proof of that position requires the demonstration of the absence of certain events or causes. Neither party in a “just cause” termination dispute has peculiar knowledge not available to the opposing party. A terminated employee may readily utilize the procedures outlined in chapter 126 and section 1A-1 of the North Carolina General Statutes, as well as title 26 of the North Carolina Administrative Code, to obtain any and all necessary information to establish and advocate his or her position. Peace v. Employment Sec. Comm’n of North Carolina, 349 N.C. 315, 328, 507 S.E.2d 272, 281-82 (1998). Just cause may result either from unacceptable job performance or unacceptable personal conduct. See Amanini at 679, 443 S.E.2d at 120. The difference is important because an employee must receive certain warnings before being terminated for unsatisfactory job performance, while no warnings are required for termination based on personal misconduct. See id. at 679, 443 S.E.2d at 121. However, “[t]he categories are not mutually exclusive, as certain actions by employees may fall into both categories, depending upon the facts of each case.” N.C. Admin. Code tit. 25, r. 1J.0604 (June 2000). Although New River never specifically stated the grounds for Souther’s dismissal, Beamon’s letter terminating petitioner read in pertinent part: Over the past weeks, your relationship with your client’s family has deteriorated to the point that you refuse to provide in-home services to your client in her home. As you have been aware, the main purpose of the work you do for us is to enable clients to live in their own homes. You refused to meet with me and your supervisor on 9-15-93, after being required by your supervisor to do so for the purpose of getting services flowing to your client again. Recently, you have spent a great deal of time and energy discussing with various staff how stressful it is for you to work here. Thus, New River’s finding of just cause was based on (1) petitioner’s refusal to provide service to her client, and (2) petitioner’s failure to attend the 15 September 1993 meeting with her supervisors. New River contends that these reasons for dismissal constitute insubordination. “Insubordination” is defined as “the refusal to accept a reasonable and proper assignment from an authorized supervisor.” Mendenhall, 119 N.C. App. at 651, 459 S.E.2d at 824 (citation omitted). Insubordination has been defined more broadly as “1. A willful disregard of an employer’s instructions .... 2. An act of disobedience to proper authority; esp. a refusal to obey an order that a superior officer is authorized to give.” Black’s Law Dictionary 802 (7th ed. 1999). Thus, insubordination involves two elements: (1) A reasonable and proper instruction or assignment by an authorized supervisor; and (2) A willful or intentional refusal to comply with such instruction or assignment. We must therefore determine the reasonableness of the requests made by New River for Souther to return to the Jenkins’ home and to attend the 15 September 1993 meeting, and the reasonableness of Souther’s failure to comply with those requests. We note that, because insubordination is a form of personal misconduct, see Amanini, 114 N.C. App. at 679, 334 S.E.2d at 121, if Souther’s conduct constituted insubordination, then New River was not required to provide warnings to her before her discharge. We first consider the 15 September 1993 meeting, which was called for the purpose of reviewing the results of the investigation into petitioner’s allegations and to re-establish service to Robinette. We assume arguendo that the request by Beamon and Johnson that Souther attend the meeting was reasonable and proper. Our inquiry thus proceeds to whether Souther’s refusal to comply with this reasonable request was willful. “The conduct of an employee cannot be termed willful misconduct if it is determined that the employee’s actions were reasonable and taken with good cause.” Urback v. East Carolina Univ., 105 N.C. App. 605, 608, 414 S.E.2d 100, 102, disc. review denied, 331 N.C. 291, 417 S.E.2d 70 (1992). What constitutes a “reasonable” action by petitioner is necessarily a subjective determination. See, e.g., Mendenhall (holding that under whole record test, a petitioner was improperly terminated for insubordination where petitioner refused to care for AIDS patient on the basis of legitimate and reasonable health concerns). Therefore, we will review the record in some detail to determine the reasonableness of Souther’s actions. The record shows that on 14 September 1993, Johnson and Beamon met with Tate to discuss Souther’s allegations and the results of Johnson’s abbreviated investigation into those allegations. At that meeting, Beamon, the Area Director, decided on the basis of Johnson’s investigation and report that Lester Jenkins had not sexually harassed Souther and that Souther’s allegations were unfounded. Following the 14 September 1993 meeting, Beamon called Souther to arrange for a meeting with Beamon and Johnson. According to Souther’s account of this telephone call from Beamon on 14 September 1993, Beamon was very angry with Souther and spoke rudely to her. Beamon informed Souther during this call that she did not believe Souther’s account of the events concerning Lester Jenkins. Souther testified that she was worried about meeting with Beamon and Johnson together on 15 September. Furthermore, she understood from her copy of the State Employees’ Grievance Policy that she first was entitled to a meeting alone with her immediate supervisor, Johnson, rather than a joint meeting with both Johnson and Beamon. On 15 September 1993, Souther sent a letter to Johnson asking for his help in resolving her complaint. When Souther failed to show up for the 15 September meeting, Beamon called Souther again. According to Beamon’s notes from this conversation, Souther repeatedly expressed her reservations about meeting with the supervisors without an attorney present, and indicated that she could not meet with the supervisors without an attorney. The North Carolina Administrative Code, as it existed in 1993, provided that “[p]rior to dismissal of a permanent employee on the basis of personal conduct, there shall be a pre-dismissal conference between the employee and the person recommending dismissal. This conference shall be held in accordance with the provision of 25 NCAC 1J .0606(2), (3).” 25 NCAC 1J .0608(c) (effective 1 July 1989). The requirements for the pre-dismissal conference provided in part that “[t]he Supervisor or designated management representative shall schedule and conduct a pre-dismissal conference with the employee. Advance notice of the pre-dismissal conference must be given to the employee. A second management representative or security personnel may be present at management’s discretion.” 25 NCAC 1J .0606(2) (effective 1 September 1991). Following the hearing of this matter, an Administrative Law Judge issued a recommended decision which included findings of fact and conclusions of law. In her conclusions of law, the Administrative Law Judge found that “[t]he presence of more than one management person at the [20 September 1993] conference was a violation of [State Personnel Commission] rules regarding who is to attend pre-dismissal conferences.” Nonetheless, the Administrative Law Judge found that, because Souther was permitted to have her attorney present at the 20 September meeting, “she was not unduly prejudiced by this procedural violation.” Souther’s understanding that she was entitled, pursuant to these State Personnel Commission guidelines, to an initial meeting with only Johnson was not inherently unreasonable. Furthermore, Souther was worried by what she perceived to be a hostile attitude on behalf of Beamon, and feared that she might lose her job. It is apparent from the record that Souther perceived that Beamon and Johnson did not believe her allegations, and Souther was not aware that her claims had been investigated at all. Moreover, the record supports Souther’s contention that she understood from Beamon’s telephone call on 14 September 1993 that Beamon, Tate and Johnson (who were all present at the 14 September discussion) would all be present at the proposed 15 September meeting, which would have been a clear violation of the requirements for the pre-dismissal conference (as was the presence of all three at the 20 September meeting). These facts indicate the basis of Souther’s failure to attend the 15 September 1993 meeting, which failure appears under the circumstances to have been reasonable. Thus, Souther’s refusal to attend the meeting did not constitute insubordination. We must next determine whether Souther’s refusal at the 20 September 1993 meeting to re-establish in-house care for Robinette amounted to insubordination. A careful review of the record on appeal reveals the reasonableness of this action as well. The investigation which was performed by New River into Souther’s allegations of sexual harassment by Lester Jenkins appears to have been limited at best. Souther testified that she initially believed that Lester Jenkins’ comments that she should get out and date, and asking for sex with her, were “one big joke.” However, he persisted, and she testified that when Lester Jenkins forthrightly stated without euphemisms that he wanted to have sex with her, she knew his comments had not been a joke. According to petitioner, she notified Johnson and asked him to talk to Lester Jenkins. She wanted Johnson to “tell [Lester Jenkins] that this was bothering [her], and ... to leave that kind of jokes alone because . . . they weren’t appropriate for the work.” On 17 August 1993, Souther first contacted Johnson regarding her concerns, reporting, according to Johnson’s notes from the conversation, that Lester Jenkins “had said or done something which caused [Souther] emotional pain and hurt.” Souther also expressed her desire to tell Johnson the details regarding the incident but was hesitant to do so as she did not feel she would be believed. At this point Johnson took no action, though he was clearly aware that something had occurred between Souther and Lester Jenkins which was causing Souther some distress. On 19 August 1993, Souther again spoke with Johnson; and, according to Johnson’s notes, she informed Johnson that “Jenkins offered to help her complete moving into her new trailer if she would repay him with sexual favors.” According to Souther’s testimony before the Administrative Law Judge, she informed Johnson that Lester Jenkins’ comments were bothering her, and asked Johnson to talk to Lester Jenkins alone as she did not wa