Parks v. Department of Human Resources

JOHNSON, Judge. The question we must decide is whether a review of the whole record reveals that there is substantial evidence therein to support the Full Commission’s ruling that petitioner was dismissed for just cause. We conclude that the court’s order affirming the Full Commission’s ruling is not supported by a review of the whole record. The scope of review and power of the Superior Court in reviewing an agency decision is set forth in the Administrative Procedure Act as follows: The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the agency findings, inferences, conclusions, or decisions are: — 129 — (1) In violation of constitutional provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Unsupported by substantial evidence admissible under G.S. 150A-29(a) or G.S. 150A-30 in view of the entire record as submitted; or (6) Arbitrary or capricious. If the court reverses or modifies the decision of the agency, the judge shall set out in writing, which writing shall become a part of the record, the reasons for such reversal or modification. G.S. 150A-51. Respondent and petitioner improperly made motions for summary judgment in the Superior Court. As set forth hereinabove, the task of the Superior Court was to affirm, remand for further proceedings, reverse, or modify the Full Commission’s decision after examining all of the competent evidence and pleadings which comprise the whole record to determine if there is substantial evidence in the record to support the administrative tribunal’s findings and conclusions. See Community Sav. & Loan Ass’n v. North Carolina Sav. & Loan Comm’n, 43 N.C. App. 493, 259 S.E. 2d 373 (1979). However, respondent and petitioner’s motions for summary judgment initiated a different inquiry by the court into whether there was a triable material issue of fact. See Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E. 2d 727 (1978), aff’d per curiam, 297 N.C. 696, 256 S.E. 2d 688 (1979). Petitioner’s right to judicial review is clearly set forth in G.S. 150A-51, supra. Respondent and petitioner’s motions for summary judgment were procedurally incorrect. However, the trial court’s order allowing respondent’s motion for summary judgment was tantamount to affirming the Full Commission’s ruling upholding petitioner’s dismissal. The court’s order was as follows: — 130 — This cause coming on before the undersigned judge on motion of respondent for summary judgment and it appearing to the court that there is no genuine issue as to any material fact and that the respondent is entitled to a judgment as a matter of law; It Is THEREFORE ORDERED, ADJUDGED AND Decreed that summary judgment is granted in favor of respondent against petitioner and that this action is dismissed with the costs to be taxed against the petitioner. This Court has held that a statement by a Superior Court judge that an agency failed “to support its Conclusion of Law that the Petitioner was grossly incompetent within the purview of G.S. 93D-13(a)(2)” constituted a succinct and adequate statement of its reasons for reversing the agency’s decision. Faulkner v. North Carolina State Hearing Aid Dealers & Fitters Bd., 38 N.C. App. 222, 226, 247 S.E. 2d 668, 670 (1978). In the case sub judice the court’s order sufficiently sets forth a reviewable basis for affirming the Full Commission’s ruling. We now turn to the whole record which was before the court to review, and determine whether there is substantial, competent evidence which would support the Full Commission’s ruling. In affirming the hearing officer’s decision to uphold respondent’s dismissal of petitioner the Full Commission adopted the Findings of Fact and Conclusions of the hearing officer as its own. In the opinion of the hearing officer we find that conclusion number two (2) raises the issue we must address on appeal. In pertinent part that conclusion is as follows: The Petitioners’ acts and omissions in the chairs incident constituted personal conduct, which is grounds for their immediate dismissals .... Petitioner contends that the whole record which was submitted to the court reveals that the Full Commission’s decision to uphold respondent’s dismissal of him was contrary to law. The argument forwarded by petitioner is that respondent may not dismiss him for performance of duty reasons until he has been given the warnings required by G.S. 126-35. See Jones v. Dep’t of Human Resources, 300 N.C. 687, 268 S.E. 2d 500 (1980). On 6 Feburary 1983 two directives were in effect relating to disciplinary action for abuse and neglect of residents by — 131 — employees of the O’Berry Center. These directives classify various infractions, whereby, an employee may be subject to specified disciplinary actions. Respondent contends that petitioner was dismissed with just cause for his personal conduct. Petitioner contends that all communications with him indicated that his dismissal was for actions which are classified in the directives as unsatisfactory performance of duties. O’Berry Center promulgated an Administrative Policy Manual. The subjects of that manual are abuse, neglect and corporal punishment of residents. The policy section of the manual contains the following statement “Employees found guilty of abuse shall be terminated. Failure to report suspected abuse may be subject to disciplinary action.” The definitional section of the manual contains five sections including one section entitled “Neglect.” Ill Neglect: Any situation in which the staff do (sic) not carry out duties or responsibilities which in turn affects the health, safety or well being of a resident. Examples; —Failure to implement programs as designed by the interdisciplinary team. — Failure to insure adequate intake of food or water. — Failure to assure resident is appropriately dressed. —Neglect is failure to report appropriately any observed or suspected abuse. —Leaving residents unattended. (emphasis ours and in original). We note that the examples listed in Section III all share the common element of an act of omission. This document is internally consistent in that the acts of omission, such as failure to report abuse, “may be subject to disciplinary action.” However, when an employee commits acts of resident abuse that employee “shall be terminated.” The Administrative Procedure Manual, promulgated by O’Berry Center, makes reference to the State Personnel Manual. The pertinent provisions of the policy statement in the State Personnel Manual are as follows; — 132 — The causes for dismissal fall into two categories: (1) causes relating to performance of duties, and (2) causes relating to personal conduct detrimental to State service. Suspension may be necessary in either category and may be used in accordance with the provisions of this policy under suspension. 1. Performance of Duties. Employees who are dismissed for unsatisfactory performance of duties should receive at least 3 warnings: First, one or more oral warnings; second, an oral warning with a follow-up letter to the employee which sets forth the points covered in the discussion; third, a written warning which will serve notice upon the employee that a continuation of the unacceptable practices may result in specific pay losing disciplinary action or dismissal. (emphasis in original). Clearly suspension may be appropriate in cases of personal misconduct or unsatisfactory performance of duties. It is equally clear that three (3) warnings are required prior to dismissal of an employee for unsatisfactory performance of duties. The State Personnel Manual also separately enumerates those causes for dismissal which are related to performance of duties and personal misconduct. Performance of Duties — The following causes relating to the performance of duties are respresentative of those considered for suspension or dismissal: . . . 2. Negligence in the performance of duties. (emphasis in original). Thus, the O’Berry Center’s Administrative. Procedure Manual and the State Personnel Manual categorize negligence as a cause for dismissal relating to performance of duties. Neither of these two directives pertinent to this case categorize negligence as falling within the realm of personal conduct. We now turn to the question of whether petitioner’s failure to report his observation of resident abuse should be classified as negligence. We find respondent’s communications with petitioner helpful in this regard. The first letter petitioner received notifying him of his dismissal was from W. L. West, Chief of Residential Services. — 133 — Mr. James C. Parks 1219 Porter Street Goldsboro, N. C. 27530 Dear Mr. Parks: Pursuant to the allegations which led to your suspension February 6, 1983, I wish to inform you of our decision. A thorough investigation of the allegations and the condition surrounding the incident reveal that you have been negligent in reporting observations which you admit were acts of resident abuse. Negligence in the performance of duties is in direct violation of State and O’Berry policies. As a result of these violations, your employment at O’Berry Center is terminated. . . . (emphasis ours). This letter reveals that respondent was terminated for negligence in performance of his duties. To further illustrate that this terminology was not the result of loose drafting we find that a letter dated 8 March 1983 written by Dr. Lyall affirmed the reason given for petitioner’s termination. Mr. James Parks 1219 South Porter Street Goldsboro, N. C. 27530 Dear Mr. Parks: On February 24, 1983 and March 7, 1983, I met with you to discuss your grievance for termination of employment from O’Berry Center. Having been offered no additional information from you regarding the reason for your termination, I still find you negligent in reporting an act of resident abuse that you observed and I am upholding your termination. . . . (emphasis ours). Dr. Lyall upheld petitioner’s dismissal because of petitioner’s negligence. There were no warnings given to this employee for this unsatisfactory performance of his duty to report acts of resident abuse. Respondent contends that there is substantial evidence in the record to support its position that petitioner’s failure to report patient abuse was personal conduct such that petitioner’s — 134 — dismissal for just cause was an appropriate disciplinary action. We hold that the trial court erred in affirming the Full Commission’s decision to affirm petitioner’s dismissal as being for just cause. The record that was before the trial court does not support a determination that respondent was entitled to a judgment as a matter of law. Both directives referred to hereinabove unquestionably support petitioner’s assertion that respondent’s termination of petitioner was an inappropriate disciplinary action. The trial judge had before him two letters which asserted that petitioner’s negligence was the basis for terminating petitioner’s employment. Petitioner has controverted respondent’s contention that a permanent state employee may be dismissed for unsatisfactory performance of his duties prior to receiving the three warnings mandated by the State Personnel Manual. The requirement of G.S. 126-35 pointed out in Jones, supra is that a permanent state employee is entitled to three separate warnings giving notice that his performance is unsatisfactory. Based on the whole record, we conclude that there was not substantial competent evidence which would support the Full Commission’s conclusion that petitioner’s actions should be classified as personal conduct such that he was dismissed for “just cause.” Reversed and remanded. Judges WEBB and PHILLIPS concur.