              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-629

                               Filed: 6 February 2018

Office of Administrative Hearings, No. 16 OSP 07661

RALPH WHITEHURST, Petitioner-Appellee,

             v.

EAST CAROLINA UNIVERSITY, Respondent-Appellant.


      Appeal by respondent from the Final Decision entered 22 February 2017 by

Administrative Law Judge Donald J. Overby in the Office of Administrative

Hearings. Heard in the Court of Appeals 15 November 2017.


      Law Offices of Michael C. Byrne, by Michael C. Byrne, for petitioner-appellee.

      Attorney General Joshua H. Stein, by Assistant Attorney General Joseph A.
      Newsome and Special Deputy Attorney General Stephanie A. Brennan, for the
      State.

      The McGuinness Law Firm, by J. Michael McGuinness, for amicus curiae
      North Carolina Police Benevolent Association and Southern States Police
      Benevolent Association.


      ZACHARY, Judge.

      Respondent East Carolina University appeals from a Final Decision of the

North Carolina Office of Administrative Hearings, which concluded that respondent

did not have just cause to dismiss petitioner Ralph Whitehurst from his position as a

police sergeant at East Carolina University. After careful review, we affirm the

decision of the administrative law judge.

                         Factual and Procedural Background
                               WHITEHURST V. ECU

                                 Opinion of the Court



      Petitioner-appellee Ralph Whitehurst was initially employed by the East

Carolina University (“ECU”) Police Department in April 2004 as a Master Police

Officer. ECU promoted Whitehurst to Public Safety Supervisor in June 2006.

Whitehurst was a permanent State employee subject to the North Carolina Human

Resources Act, Chapter 126 of the North Carolina General Statutes.

      On the evening of 17 March 2016, Whitehurst responded to a dispatch call

reporting an assault on the ECU campus. Whitehurst’s actions on the scene resulted

in negative media coverage, and ECU administration began taking steps to dismiss

Whitehurst from employment.

      On 21 July 2016, ECU Chancellor Cecil Staton issued ECU’s Final University

Decision dismissing Whitehurst from employment. Whitehurst filed a petition for a

contested case hearing with the Office of Administrative Hearings on 28 July 2016.

On 22 February 2017, Administrative Law Judge Donald J. Overby (“ALJ”) issued a

Final Decision reversing Whitehurst’s dismissal, ordering instead that he be

demoted.

      At issue on appeal is ECU’s decision to dismiss Whitehurst based on his

response to the 17 March 2016 assault. The unchallenged details of the incident are

as follows.

      On the night of 17 March 2016, non-ECU student Patrick Myrick “hit a girl in

the face” at a bar in downtown Greenville. This prompted a group of individuals to



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pursue Myrick. The group of individuals chased Myrick onto ECU’s campus and

began attacking him. Meanwhile, an ECU telecommunicator saw the attack on

Myrick on the University’s surveillance cameras and alerted the ECU police.

Whitehurst responded to the scene and was the first officer to arrive.

      The surveillance footage shows that the attack on Myrick had ended by the

time Whitehurst appeared. When Whitehurst arrived, the scene was relatively calm

and the group of individuals was detaining Myrick by sitting on top of him.

Whitehurst had not been informed of the details of the attack, but knew only that he

was responding to “an assault” on campus.

      When Whitehurst approached the group, most of the individuals began to

leave, and it does not appear from the surveillance video that Whitehurst made an

attempt to detain them. The individuals who remained on the scene told Whitehurst

that Myrick “had assaulted a girl downtown, punched her in the face.” Whitehurst

asked Myrick what happened and Myrick told him that he “had been in a fight

downtown.” Whitehurst secured Myrick by placing handcuffs on him; however, he did

not attempt to prevent the remaining individuals from leaving the scene, nor did he

ask them to stay so that he could obtain a statement. Whitehurst noticed blood on

Myrick’s face and contacted emergency rescue.

      Other officers began to arrive several minutes later. By that point, almost all

of the perpetrators and witnesses of the assault on Myrick had left the scene.



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Whitehurst directed Officer Chuck Wills “to make sure to get the individuals on scene

information.” In the surveillance footage, Officer Tarkington is seen talking on her

cell phone to a dispatcher, who informed her that Myrick had been the victim of an

assault. However, Officer Tarkington did not convey this fact to Whitehurst.

Whitehurst contends that he did not hear any of the radio calls about Myrick being

assaulted. Myrick was brought to the hospital and no further action was taken.

      That same morning, around 3:30 a.m., Whitehurst notified Chief Gerald Lewis

and other command officers that he had responded to an assault on campus. Chief

Lewis viewed the surveillance footage of the incident. Sgt. Jermaine Cherry informed

Chief Lewis that Whitehurst had not filed a report with respect to the assault. Chief

Lewis was concerned that no official reports were filed and that Whitehurst had not

detained anyone at the scene in order to gather information from them. On 18 March

2016, Chief Lewis initiated an Internal Affairs investigation. Whitehurst viewed the

surveillance footage for the first time when he met with Chief Lewis on 21 March

2016. Chief Lewis informed Whitehurst that he was being placed on an Investigatory

Placement with Pay status effective that day.

      The Internal Affairs Investigation Report concluded that Whitehurst’s

response to the assault violated three written work rules. The Report found that

Whitehurst violated General Order 1400-01 when he failed to obtain information

from the witnesses and suspects. The Report also found that Whitehurst violated



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General Order 500-02 (Field Reporting and Management) because he failed to ensure

that the appropriate report was filed in order to document the incident. Lastly, the

Report concluded that by failing to document the incident, Whitehurst violated

General Order 1100-01 (Criminal Arrest Policy and Procedure), which requires

documentation by a responding officer when a private citizen detains someone.

Whitehurst was notified that a pre-disciplinary conference would be held on 18 April

2016, and that his dismissal was being recommended.

      Whitehurst’s pre-disciplinary conference was conducted by Chief Lewis and

Sara Lilley of the ECU Human Resources Department on 18 April 2016. Despite

Whitehurst’s responses to the allegations against him, Chief Lewis and Lilley

concluded that Whitehurst engaged in unacceptable personal conduct for which no

reasonable person should expect to receive a prior warning. This conclusion was

based on Whitehurst’s failure to properly investigate and document the incident, both

of which constitute willful violations of the General Orders, the department’s written

work rules. Whitehurst was notified by letter of his dismissal for unacceptable

personal conduct on 19 April 2016.

      Whitehurst properly followed the ECU grievance procedure. On 29 June 2016,

a grievance hearing was held before a three-member panel at ECU to consider

Whitehurst’s dismissal. The Grievance Hearing Panel recommended to the

Chancellor that Whitehurst be demoted, rather than dismissed. On 21 July 2016,



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                                   Opinion of the Court



ECU Chancellor Staton issued a Final University Decision upholding Chief Lewis’s

dismissal of Whitehurst from employment for unacceptable personal conduct.

      Whitehurst filed a petition for a contested case hearing with the Office of

Administrative Hearings on 27 July 2016. On 22 February 2017, Administrative Law

Judge Donald J. Overby issued a Final Decision. The ALJ determined that ECU “met

its burden of proof, by the preponderance of the evidence, that [Whitehurst’s] actions

on the night of March 17, 2016, constitute unacceptable personal conduct, [and] that

[just] cause exists for disciplining [Whitehurst.]” However, the ALJ reversed ECU’s

decision to dismiss Whitehurst, and concluded that:

             taking into account all of the facts and circumstances in
             this case, . . . dismissal was not the appropriate discipline[.]
             Having considered all the evidence presented,
             [Whitehurst’s] work and discipline history, the fact that he
             has not previously been discipline[d] and all relevant
             factors, the appropriate punishment for [Whitehurst] is
             demotion.

The ALJ ordered that Whitehurst be reinstated to his employment by ECU, “but

demoted to a position one pay grade below the rank he held at the time of his

separation.” ECU timely filed Notice of Appeal to this Court from the ALJ’s Final

Decision pursuant to N.C. Gen. Stat. §§ 7A-29(a) and 126-34.02(a).

                                         Discussion

      On appeal, ECU argues that the ALJ erred in concluding as a matter of law

that ECU did not have just cause to dismiss Whitehurst from employment. ECU also



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argues that the ALJ did not have the authority to order the alternative relief that

Whitehurst be demoted. We conclude that ECU’s arguments lack merit, and affirm

the decision of the ALJ.

I. Standard of Review

      The standard of review to be applied on appeal of an administrative tribunal’s

final decision depends upon the nature of the error asserted. “It is well settled that

in cases appealed from administrative tribunals, questions of law receive de novo

review, whereas fact-intensive issues such as sufficiency of the evidence to support

[the] decision are reviewed under the whole-record test.” N.C. Dep’t. of Env’t. &

Natural Res. v. Carroll, 358 N.C. 649, 659, 599 S.E.2d 888, 894 (2004) (citation,

quotation marks, and alterations omitted).            Section 150B-51 of our State’s

Administrative Procedure Act sets out in more detail the applicable scope and

standards of review. That Section provides that

             (b) The court reviewing a final decision may affirm the
             decision or remand the case for further proceedings. It may
             also reverse or modify the decision if the substantial rights
             of the petitioners may have been prejudiced because the
             findings, inferences, conclusions, or decisions are:

             (1) In violation of constitutional provisions;

             (2) In excess of the statutory authority or jurisdiction of the
             agency or administrative law judge;

             (3) Made upon unlawful procedure;

             (4) Affected by other error of law;


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             (5) Unsupported by substantial evidence . . . in view of the
             entire record as submitted; or

             (6) Arbitrary, capricious, or an abuse of discretion.

N.C. Gen. Stat. § 150B-51(b) (2016).

      Where the asserted error falls under subsections 150B-51(b)(5) and (6), we

apply the “whole record standard of review.” N.C. Gen. Stat. § 150B-51(c) (2016).

Under the whole record standard of review, the reviewing “court must examine all

the record evidence—that which detracts from the agency’s findings and conclusions

as well as that which tends to support them—to determine whether there is

substantial evidence to justify the agency’s decision.” Harris v. N.C. Dep’t of Pub.

Safety, ___ N.C. App. ___, ___, 798 S.E.2d 127, 133, aff’d per curiam, ___ N.C. ___, ___

S.E.2d ___ (2017 N.C. LEXIS *1020) (2017).           “Substantial evidence is relevant

evidence a reasonable mind might accept as adequate to support a conclusion.” Id.

However,

             “[t]he whole record test is not a tool of judicial intrusion;
             instead, it merely gives a reviewing court the capability to
             determine whether an administrative decision has a
             rational basis in the evidence.” Therefore, the whole record
             test “does not permit the reviewing court to substitute its
             judgment for the agency’s as between two reasonably
             conflicting views.”

Blackburn v. N.C. Dep’t. of Pub. Safety, ___ N.C. App. ___, ___, 784 S.E.2d 509, 518

(2016) (quoting Carroll, 358 N.C. at 674, 599 S.E.2d at 903-04 (internal quotation



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                                  Opinion of the Court



marks omitted) and Lackey v. Dep’t of Human Res., 306 N.C. 231, 238, 293 S.E.2d

171, 176 (1982)) (alteration omitted).

      We conduct a de novo review of an asserted error of law falling under

subsections 150B-51(b)(1)-(4), supra. N.C. Gen. Stat. § 150B-51(c)(2016); Blackburn,

___ N.C. App. at ___, 784 S.E.2d at 518. “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.” Souther v. New

River Area Mental Health Dev. Disabilities & Substance Abuse Program, 142 N.C.

App. 1, 4, 541 S.E.2d 750, 752 (2001) (internal quotation marks omitted). “Under a

de novo review, the court considers the matter anew and freely substitutes its own

judgment for that of the ALJ.” Blackburn, ___ N.C. App. at ___, 784 S.E.2d at 518.

      The determination of “whether a public employer had just cause to discipline

its employee requires two separate inquiries[.]” Carroll, 358 N.C. at 665, 599 S.E.2d

at 898. The initial inquiry is “whether the employee engaged in the conduct the

employer alleges[.]”   Id. (quotation marks omitted).          This is a question of fact,

“reviewed under the whole record test.” Id. After determining that the employee did

engage in the conduct alleged, the second inquiry is “whether that conduct constitutes

just cause for the disciplinary action taken.”           Id.   (quotation marks omitted).

“Whether conduct constitutes just cause for the disciplinary action taken is a question

of law we review de novo.” Warren v. N.C. Dep’t of Crime Control & Pub. Safety, 221



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                                  Opinion of the Court



N.C. App. 376, 378, 726 S.E.2d 920, 923 (2012) (citing Carroll, 358 N.C. at 666, 599

S.E.2d at 898).

II. ALJ’s Findings of Fact

      The majority of the ALJ’s findings of fact have not been challenged, and are

thus binding on appeal. Blackburn, ___ N.C. App. at ___, 784 S.E.2d at 519 (citing

Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). ECU only argues

that Findings of Fact Nos. 44, 55, and 57 are unsupported by substantial evidence.

However, “after careful review of the record and the ALJ’s order,” we do not find it

necessary to assess the evidentiary support for each of these findings in order to

determine whether the ALJ correctly found that ECU did not have just cause to

terminate Whitehurst’s employment. Id. We will review the evidence supporting

these findings to the extent that they become material to the ALJ’s decision below.

III. Just Cause

      The State Human Resources Act, Chapter 126 of the North Carolina General

Statutes, creates “a constitutionally protected ‘property’ interest in the continued

employment of career State employees.” Peace v. Employment Sec. Comm’n., 349 N.C.

315, 321, 507 S.E.2d 272, 277 (1998). Pursuant to N.C. Gen. Stat. § 126-35(a) (2016),

“[n]o career State employee subject to the North Carolina Human Resources Act shall

be discharged, suspended, or demoted for disciplinary reasons, except for just cause.”

If a career State employee believes that he was discharged, suspended, or demoted



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                                  Opinion of the Court



without just cause, he “may file a contested case in the Office of Administrative

Hearings under Article 3 of Chapter 150B of the General Statutes.” N.C. Gen. Stat.

§ 126-34.02(a) (2016). The Office of Administrative Hearings must then determine

whether just cause existed for the employee’s dismissal, demotion, or suspension.

N.C. Gen. Stat. § 126-34.02(b)(3) (2016). “[T]he burden of showing that a career State

employee was discharged . . . for just cause rests with the employer.” N.C. Gen. Stat.

§ 126-34.02(d) (2016).

      Only two grounds may constitute just cause for disciplinary action, including

dismissal, pursuant to 25 N.C.A.C. 1I.2301(c): (1) unsatisfactory job performance,

including grossly inefficient job performance, and (2) unacceptable personal conduct.

25 N.C.A.C. 1I.2301(c) (2016). “Unacceptable personal conduct” includes, among

other things, “conduct for which no reasonable person should expect to receive prior

warning” and “the willful violation of known or written work rules[.]” 25 N.C.A.C.

1J.0614(8)(a) and (d) (2016). One instance of unacceptable personal conduct may

constitute just cause for dismissal, and an employee may be dismissed without any

prior warning or disciplinary action. 25 N.C.A.C. 1J.0608(a) (2016); Hilliard v. North

Carolina Dep’t of Corr., 173 N.C. App. 594, 597, 620 S.E.2d 14, 17 (2005).

      However, while “just cause” is defined to include “unacceptable personal

conduct,” “the fundamental question in a case brought under N.C.G.S. § 126-35 is




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                                   Opinion of the Court



whether the disciplinary action taken was ‘just.’ ” Carroll, 358 N.C. at 669, 599

S.E.2d at 900.

             The proper analytical approach is to first determine
             whether the employee engaged in the conduct the employer
             alleges. The second inquiry is whether the employee’s
             conduct falls within one of the categories of unacceptable
             personal conduct provided by the Administrative Code. . . .
             If the employee’s act qualifies as a type of unacceptable
             conduct, the tribunal proceeds to the third inquiry:
             whether that misconduct amounted to just cause for the
             disciplinary action taken.

Warren, 221 N.C. App. at 383, 726 S.E.2d at 925. Accordingly, not every instance of

unacceptable personal conduct will “give[] rise to ‘just cause’ for employee discipline.”

Carroll, 358 N.C. at 669, 599 S.E.2d at 901. Rather, “just cause” “is a flexible concept,

embodying notions of equity and fairness, that can only be determined upon an

examination of the facts and circumstances of each individual case.” Id. at 669, 599

S.E.2d at 900 (internal quotation marks and citations omitted).

      In determining whether unacceptable personal conduct constitutes just cause

for dismissal under Warren’s third inquiry, we look to several factors that were set

forth in Wetherington v. N.C. Dep’t of Public Safety, 368 N.C. 583, 780 S.E.2d 543

(2015). Those factors include “the severity of the violation, the subject matter

involved, the resulting harm, the [employee’s] work history, or discipline imposed in

other cases involving similar violations.” Id. at 592, 780 S.E.2d at 548.




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                                  Opinion of the Court



      In the instant case, the ALJ concluded that, under the first step of the Warren

analysis, Whitehurst failed (1) to submit a non-criminal information report, and (2)

to properly investigate the on-campus assault. Under the second prong—whether

Whitehurst’s actions constituted unacceptable personal conduct—the ALJ concluded

that Whitehurst’s conduct at the scene constituted unacceptable personal conduct,

but that his failure to submit a non-criminal report did not.

      We agree that Whitehurst’s failure to file a non-criminal report, in violation of

General Order 500-02, did not constitute just cause for his dismissal. As the ALJ

explained in Conclusion of Law No. 24, which ECU has not challenged,

             [Whitehurst’s] failure to submit a non-criminal
             information report is not unacceptable personal conduct.
             While indeed policy stated that such a report was to have
             been submitted, the undisputed evidence was that the
             pattern and practice of the department was that this was
             left to the discretion of the supervisor. There is no evidence
             that anyone had ever been disciplined for failure to submit
             this report, let alone dismissed. The evidence was that
             [Whitehurst] himself thought the matter was subject to his
             discretion, and there was no evidence that [Whitehurst’s]
             thinking was either unreasonable or contrary to the
             pattern and practice of the department.

(emphasis added).

      Whitehurst’s failure to file a non-criminal report constitutes unacceptable

personal conduct in that he acted in violation of a known or written work rule

pursuant to 25 N.C.A.C. 1J.0614(8). However, upon consideration of the “discipline




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imposed in other cases involving similar violations,” we agree that this violation did

not provide just cause for Whitehurst’s dismissal.

      Concerning Whitehurst’s conduct at the scene, in Conclusion of Law No. 26 the

ALJ reasoned that:

                [Whitehurst’s] conduct at the scene constitutes
                unacceptable personal conduct. Not only did he fail to gain
                control prior to the arrival of the other officers, but it seems
                as though at some point he lost sight of the fact that there
                had been an assault on campus, despite the fact he was
                responding to an assault on campus and had someone with
                obvious signs of injury.

However, the ALJ concluded that Whitehurst’s unacceptable personal conduct did

not provide just cause for his dismissal. Taking into consideration all of the facts and

circumstances of the case, including the factors that our Supreme Court set forth in

Wetherington, we agree.

      We do not discount the harm that resulted from Whitehurst’s conduct on the

evening of 17 March 2016. However, “just cause” is a concept “embodying notions of

equity and fairness” to the employee. Carroll, 358 N.C. at 669, 599 S.E.2d at 900

(internal quotation marks omitted). Whitehurst’s conduct must be judged with

reference to the facts of which he was aware at the time of his actions. After reviewing

the whole record, including the ECU surveillance video footage, we conclude that the

severity   of     Whitehurst’s     conduct     was    substantially    mitigated   by   his

misunderstanding of the situation with which he was presented.



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       At the time Whitehurst reached the scene, no one was being assaulted. As

acknowledged by Chief Lewis and confirmed by ECU’s surveillance video footage,

upon arrival Whitehurst encountered a group of individuals restraining Myrick.

When Whitehurst approached the group, “it was reported to him that [Myrick] . . .

had assaulted a girl downtown [and] punched her in the face[.]” In that Whitehurst

was responding to “an assault,” this reasonably led him to believe that the assault

had ended, and that the gathered individuals had detained the perpetrator. No one

on the scene, including Myrick, informed Whitehurst that there had been a separate

assault on Myrick. In fact, when Whitehurst asked Myrick what happened, Myrick

“told . . . Whitehurst that he . . . had been in a fight downtown . . . [a]nd . . . said

nothing about being the victim of an assault [on campus.]” Fairness and equity do

not allow just cause for dismissal to be predicated upon Whitehurst’s failure to

respond appropriately to facts of which he had no knowledge.

       In consideration of the “discipline imposed in other cases involving similar

violations[,]”   Wetherington, 368 N.C. at 592, 780 S.E.2d at 548, the minimal

discipline received by Officer Tarkington is also relevant to our just cause analysis.

The only ECU officer on the scene privy to information regarding the assault on

Myrick was Officer Tarkington. Officer Tarkington, however, failed to convey that

information to Whitehurst, for which she was issued a written warning. The

relatively light discipline imposed on Officer Tarkington for a similar violation weighs



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heavily against a determination that just cause existed for Whitehurst to be

cashiered.

      Whitehurst’s discipline-free work history is also relevant to this just cause

analysis. We agree with ECU that Chief Lewis was aware of Whitehurst’s work

performance history when he made the decision to dismiss Whitehurst, despite the

ALJ’s finding to the contrary. However, Chief Lewis’s discounting of that factor has

no bearing on this Court’s consideration of it in our de novo review.

      Whitehurst was subject to regular performance reviews by ECU and generally

received above average ratings. Jimmy Cannon, an ECU police sergeant who worked

with Whitehurst for roughly twelve years, testified that “He’s been an outstanding

peer to work with especially when it comes to his knowledge of police procedures and

police work in general. He’s one of the best . . . that I’ve worked with[.]” Whitehurst

had worked for ECU for twelve years, with no disciplinary action. This factor also

mitigates against a finding that just cause existed to dismiss Whitehurst from

employment based on his conduct the night of 17 March 2016.

       Lastly, we note that Whitehurst’s position as a supervising law enforcement

officer does not lower the standard that must be met in order to justify his dismissal.

ECU is correct in citing Blackburn v. N.C. Dep’t of Public Safety for the proposition

that there is a “degree of responsibility associated with [Whitehurst’s] position” as a

supervising law enforcement officer. Blackburn, ___ N.C. App. at ___, 784 S.E.2d at



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528. Blackburn does not, however, hold that anything less than just cause is required

to dismiss a State employee where that employee is a law enforcement officer. In

Blackburn, we simply held that, given Petitioner Blackburn’s duty to ensure the

health and safety of inmates, his “actions of (1) allowing [an inmate] to remain lying

on his bed in handcuffs for five days, (2) without receiving anything to drink during

this time, and (3) without any attention to [the inmate’s] condition,” directly

contributed to that inmate’s death, and constituted “just cause to terminate

[Blackburn] for grossly inefficient job performance.” Id. Whitehurst’s violations in

the present case clearly do not rise to the level of severity present in Blackburn.

      We agree that Whitehurst’s position as a law enforcement officer imposed

duties upon him which are not commonly shared by other State employees.

Nonetheless, Whitehurst is entitled to the exacting protections given to all career

State employees pursuant to N.C. Gen. Stat. § 126-35. Considering all of the facts

and circumstances of the present case, we conclude that ECU did not have just cause

to dismiss Whitehurst from employment.

IV. ALJ’s Authority to Demote Whitehurst

      ECU next argues that the ALJ did not have the authority to order that

Whitehurst be demoted instead of dismissed after having found that just cause

existed to impose “some” discipline on Whitehurst. This argument is unavailing.




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      “ ‘Unacceptable personal conduct does not necessarily establish just cause for

all types of discipline.’ ” Harris, ___ N.C. App. at ___, 798 S.E.2d at 137, aff’d per

curiam, ___ N.C. ___, ___ S.E.2d ___ (2017 N.C. LEXIS *1020) (quoting Warren, 221

N.C. App. at 383, 726 S.E.2d at 925). Rather, “[j]ust cause must be determined based

upon an examination of the facts and circumstances of each individual case.” Id. This

inquiry extends not only to whether just cause existed to discipline generally, but also

to whether just cause existed to impose the particular disciplinary action taken.

      Upon its review of a contested case, the ALJ “may grant the following relief:

(1) [r]einstate [the] employee to the position from which the employee has been

removed[,] (2) [o]rder the employment, promotion, transfer, or salary adjustment of

any individual to whom it has been wrongfully denied[, or] (3) [d]irect other suitable

action to correct the abuse[.]” N.C. Gen. Stat. § 126-34.02(a) (2016) (emphasis added).

As our Supreme Court explicitly affirmed in Harris, the ALJ has the “authority to

direct other suitable action upon a finding that just cause does not exist for the

particular action taken by the agency[,]” which “includes the authority to impose a

less severe sanction as ‘relief.’ ” Harris, ___ N.C. App. at ___, 798 S.E.2d at 138, aff’d

per curiam, ___ N.C. ___, ___ S.E.2d ___ (2017 N.C. LEXIS *1020) (quotation marks

and alteration omitted). After reviewing the particular facts and circumstances of

the case, “the ALJ may impose an alternative sanction within the range of allowed




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dispositions[]” set forth in 25 NCAC 1J.0604(a): “(1) written warning; (2) Disciplinary

suspension without pay; (3) Demotion; and (4) Dismissal.” Id.

      In the present case, based on the information he had received, Whitehurst had

no reason to believe that any of the individuals present at the scene were perpetrators

of an assault on Myrick. Nevertheless, these individuals were potential witnesses,

and Whitehurst made no attempt to prevent them from leaving the scene and did not

request that they not leave the scene. The ECU surveillance video footage shows that

after about 45 seconds, eight of the ten people present at Whitehurst’s arrival had

been allowed to walk away. As the Internal Affairs investigation found, this was in

violation of General Orders 1400-01 and 1100-01. This also constituted unacceptable

personal conduct for which no reasonable person should expect to receive a prior

warning. Accordingly, while just cause did not exist to dismiss Whitehurst,

“considering the totality of the unique facts and circumstances of the present case,”

id. at ___, 798 S.E.2d at 137-38, we affirm the ALJ’s determination that demotion

was an appropriate form of “other suitable action to correct the abuse[.]” N.C. Gen.

Stat. § 126-34.02(a)(3) (2016).

                                     Conclusion

      For the reasons explained herein, the Final Decision of Administrative Law

Judge Donald J. Overby is


      AFFIRMED.


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Judges STROUD and ARROWOOD concur.




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