              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA 17-828

                              Filed: 4 September 2018

Office of Administrative Hearings, No. 16 OSP 10680

LARA G. WEAVER, Petitioner,

             v.

NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.


      Appeal by petitioner from final decision entered 12 April 2017 by Judge J.

Randall May in the Office of Administrative Hearings, Johnston County. Heard in

the Court of Appeals 21 February 2018.


      Schiller & Schiller, PLLC, by David G. Schiller, for petitioner-appellant.

      Attorney General Joshua H. Stein, by Assistant Attorney General Joseph E.
      Elder, for respondent-appellee.


      STROUD, Judge.


      Petitioner appeals from a final decision of the Office of Administrative

Hearings (“OAH”) which concluded that petitioner failed to prove by a preponderance

of the evidence she was significantly better qualified for a position with respondent

North Carolina Department of Health and Human Services (“NCDHHS”) than the

selected candidate, because she did not meet the minimum requirements for the

position. On appeal, petitioner raises issue with several findings and argues that the

Administrative Law Judge (“ALJ”) erred in concluding that she did not have
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                                    Opinion of the Court



substantially equal qualifications as the selected candidate. After review, we affirm

the final decision.

                                      Background

      Petitioner began working for NCDHHS in January of 2005 in the Microbiology

Unit of the State Laboratory of Public Health. She held the position of a Laboratory

Specialist and worked on the Special Bacteriology bench in the lab, one of many

benches within the lab on which petitioner was trained. Petitioner worked for the

State Lab for 11 years.

      In January 2015, petitioner applied for a Medical Laboratory Supervisor II

position, and when she applied she was a career state employee. Dr. Samuel Merritt,

the former unit supervisor for the Microbiology Unit with over 30 years of experience

in laboratory work, was assigned as the hiring manager for the Medical Supervisor

II position. He assessed petitioner’s application. While he found she had much

experience with the day-in and day-out routine of the lab and its benches, she had no

supervisory experience in the job she held at the lab. Dr. Merritt, therefore, did not

find her to be the best fit for the job amongst the other applicants who applied for the

role of Medical Supervisor II.        Dr. Merritt also reviewed Thomas Lawson’s

application. Mr. Lawson was not a State employee when he applied but he possessed

the educational, work experience, and supervisory requirements that the hiring

committee found necessary to perform the job. He had a supervisory role in a public



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health lab in Maryland overseeing six to twelve employees. He also had conducted

testing in microbiology which was of clinical importance. Lawson had a degree in

biology and a Master’s degree in biotechnology.         Given the totality of Lawson’s

application, the hiring officials considered him to be the best candidate out of the

applications received. After conducting interviews, Merritt informed Lawson he was

selected for the job, and Lawson started his role as Medical Supervisor II in May of

2016.

        On 1 November 2016, petitioner filed her petition with the Office of

Administrative Hearings, arguing that NCDHHS failed to give petitioner

promotional priority over a less qualified applicant who was not a career State

employee and that she should have been given veteran’s preference because she was

the spouse of a disabled veteran. A hearing on the matter was heard before the ALJ

on 14 and 15 February 2017. Following the hearing, on 12 April 2017, the ALJ

entered his final decision, concluding that petitioner failed to prove by a

preponderance of the evidence she was significantly better qualified for the position

than the selected candidate and that she did not meet the minimum requirements for

the position, so she was not qualified for veteran’s preference. Petitioner timely

appealed to this Court.

                                      Analysis




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      On appeal, petitioner contends that the ALJ erred in making numerous

findings and in concluding that she did not have substantially equally qualifications

as the selected candidate, Mr. Lawson.

      I.     Standard of Review

      “N.C. Gen. Stat. § 150B-51 (2015) governs the scope and standard of this

Court’s review of an administrative agency’s final decision. The standard of review

is dictated by the substantive nature of each assignment of error.” Watlington v. DSS

Rockingham County, __ N.C. App. __, __, 799 S.E.2d 396, 400 (2017) (citations

omitted). Under North Carolina General Statutes § 150B-51(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;
                    (5) Unsupported by substantial evidence under G.S.
                        150B-29(a), 150B-30, or 150B-31 in view of the
                        entire record as submitted; or
                    (6) Arbitrary, capricious, or an abuse of discretion.

             . . . With regard to asserted errors pursuant to subdivisions
             (1) through (4) of subsection (b) of this section, the court
             shall conduct its review of the final decisions using the de
             novo standard of review. With regard to asserted errors
             pursuant to subdivisions (5) and (6) of subsection (b) of this



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              section, the court shall conduct its review of the final
              decision using the whole record standard of review.

N.C. Gen. Stat. § 150B-51(b)-(c) (2017). Thus,

              [i]t 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 an agency’s decision are reviewed
              under the whole-record test. The court engages in de novo
              review where the error asserted is pursuant to § 150B-
              51(b)(1), (2), (3), or (4).

Watlington, __ N.C. App. at __, 799 S.E.2d at 400 (citations and quotation marks

omitted).

              Under the whole record test, [t]he court may not substitute
              its judgment for the agency’s as between two conflicting
              views, even though it could reasonably have reached a
              different result had it reviewed the matter de novo.
              Rather, a 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.     Substantial evidence is relevant
              evidence a reasonable mind might accept as adequate to
              support a conclusion.

Harris v. NC Dept. of Public Safety, __ N.C. App. __, __, 798 S.E.2d 127, 133 (citation,

quotation marks, and brackets omitted), aff’d per curiam, 370 N.C. 386, 808 S.E.2d

142 (2017).

      II.     Lack of Minimum Qualifications for the Supervisor II Position

      Petitioner first argues that the ALJ erred in making these findings related to

whether petitioner had the necessary supervisory experience for the position:


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             23.     The     minimum      education    and     experience
             requirements for the MLS II position required the
             successful candidate to have a Bachelor’s degree in medical
             technology, chemistry, or biological science, and four years
             of laboratory experience, one of which is in a supervisory
             capacity.
             24.     The [Knowledge, Skills and Abilities (KSAs)] for the
             MLS II position required the successful applicant to have a
             background in microbiology, including basic lab methods
             for cultivating and identifying microorganisms and
             microscopic analysis. As the hiring manager, Dr. Merritt
             developed the KSAs required for the MLS II position.
             ....
             29.     The KSAs established by the hiring manger
             specifically required the successful candidate to have
             supervisory and management experience.             Petitioner
             testified that she did not have such experience; therefore,
             she did not meet the minimum qualifications for the Med
             Lab Supervisor II position.
             30.     Though petitioner initially indicated that she had
             supervisory experience on her application, her own
             testimony made it clear that she did not have this
             minimum experience.
             31.     Petitioner’s application was initially screened into
             the pool of minimally qualified applicants because she
             inaccurately stated in her application that she had
             supervisory experience. Upon review by Dr. Merritt, who
             was familiar with her work, an appropriate determination
             was made that Petitioner did not meet the minimum job
             qualifications because she did not have the required
             management and supervisory experience.
             ....
             40.     Petitioner was not included in the most qualified
             pool of candidates. She did not have the necessary
             laboratory experience in a supervisory and management
             capacity.

Petitioner contends that the ALJ erred in making the above findings of fact regarding

her experience and lack of a supervisory role at the lab. Ultimately, the ALJ found


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that her experience as a Lab Tech in the State lab for 11 years, paired with her

education, without any managerial role, did not amount to the minimum

requirements for the job posting.

      Petitioner argues that she covered several other benches during the months

between when the position became vacant and was filled and that the hiring

committee did not properly weigh the evidence of her supervisory role in the lab. She

argues that she “checked the work of the people on the other benches in the unit” and

had to write her own evaluations and conduct monthly quality control. Thus “when

[petitioner] applied for the Supervisor II position, she had been trained on all the

benches in the Microbiology Unit, could work all of them, and had done quality control

on all of the benches.” But even if petitioner did take on more responsibility with that

vacancy, she still had no official managerial or supervisory role. She did a portion of

the work a supervisor would do, such as overseeing the work on the benches, but she

did not hire or fire employees.

      When asked at the hearing whether she ever held a position with a supervisory

title to it, petitioner responded, “No.” Petitioner was again asked “[d]id you have two

years of supervisory experience at the time you applied?” and she responded, “No.”

And petitioner acknowledged at the hearing that she made no hiring decisions in her

position and that she had never been assigned to evaluate other employees or

evaluated other employees. But on her application, when asked whether she had



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supervisory and management experience, petitioner wrote “Yes.”          This evidence

supports the findings as entered by the ALJ -- and in turn provides substantial

evidence to justify the agency’s final decision that petitioner did not meet the

minimum qualifications for the position as posted. See Harris, __ N.C. App. at __,

798 S.E.2d at 133.

      Petitioner also contends that the ALJ ignored the full text of the job

description, because the description included the language “or an equivalent

combination of education and experience.” There were apparently several versions of

the job posting listed in various places at different times, but petitioner argues that

all versions contained this equivalency language. For example, petitioner’s Exhibit

4 refers to a job bulletin posting for the position which listed as minimum education

and experience requirements a “Bachelor’s degree . . . and four years of laboratory

experience in the assigned area, one of which is in a supervisory capacity; or an

equivalent combination of education and experience[.]”         Petitioner’s Exhibit 8

indicated that the “Education and Experience Required” section of the job posting for

the position stated:

             Preferably graduation from a four-year college or
             university with a B.A./B.S. or equivalent degree in medical
             technology, microbiology, or biological sciences. And three
             years of supervisory laboratory experience, preferably
             microbiology-related.
             Alternatively, an equivalent combination of education and
             experience that includes an Associate degree in medical
             technology,    microbiology      or   microbiology-related.


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             Coursework must include at least one class in general
             microbiology or basic medical microbiology. Additional
             courses in biochemistry, chemistry, biology, immunology,
             or microbiology are preferred.
             Continuing education courses in any of the above subjects
             would also be beneficial.
             Position requires a background in microbiology with at
             least 3 years of work experience in supervision and
             management. . . .

      But petitioner has not shown that the trial court’s findings regarding her

experience as it related to that required for the position were erroneous. Petitioner’s

application erroneously stated that she had supervisory experience.           She later

testified that she has never held a supervisory title. Moreover, Dr. Merritt testified

that he wrote the knowledge, skills, and ability section (“KSAs”) of the job description,

and that portion of the job description never stated an equivalency would be

acceptable. The KSA was consistently written to reflect a requirement that the

applicant have knowledge and background “in supervision and management.” The

ALJ did not err in ultimately concluding that petitioner did not meet this

requirement. The trial court’s findings are supported by the evidence. See, e.g.,

Teague v. Western Carolina University, 108 N.C. App. 689, 692-93, 424 S.E.2d 684,

686-87 (1993) (“The evidence presented in the case at hand does not lead this Court

to the conclusion that the Commission’s decision to uphold Mr. McClure’s

determination was patently in bad faith or whimsical. Mr. McClure had to make his

decision based on the qualifications he found in the applications and elicited during



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the interviews. Ms. Teague’s application did not state that she held an advanced

degree, nor did it contain any references to her relevant and substantial experience.

. . .   Based upon the information he had before him, Mr. McClure reasonably

concluded that Ms. Teague’s qualifications were not ‘substantially equal’ to Ms.

Murchison’s.” (Citation and quotation marks omitted)).

        III.   Additional Findings Regarding Required Supervisory Experience

        Petitioner also contends that the ALJ erred in making these findings, Findings

of Fact No. 34, 39, and 45, in relation to the qualifications sought for the position:

               34.    The MLS II position has both technical and
               supervisory     aspects;     however,    the    supervisory
               responsibilities are primary and present in the other
               responsibilities of the job. While the MLS II would perform
               some lab testing, this was not the expected primary role.
               Specialists are the subject matter experts and expected to
               perform the bench testing and to trouble shoot issues
               arising on the bench. The MLS II would oversee and
               coordinate these activities.
               ....
               39.    At the time Dr. Merritt was hiring for the MLS II
               position, he was looking for a candidate with previous
               supervisory experience. While the candidate needed broad
               knowledge of the testing areas that would be supervised,
               the candidate did not need to be an expert in performing
               the various tests.
               ....
               45.    Shadia Rath was hired as a Med Lab Supervisor II
               without prior supervisory experience. This was in the
               bioterrorism area that was previously part of the
               microbiology unit. Rath served in this position during
               2004-2007, nine years prior to the posting of the position at
               issue in this case. The fact that she was hired nine years
               ago, by a different supervisor into a different Med Lab


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             Supervisor II position, is not relevant to a determination of
             whether Petitioner met the minimum qualifications for the
             Med Lab Supervisor II position at issue in this case.

      In relation to Finding of Fact No. 34, testimony from Dr. Merritt and Dr. Scott

Zimmerman supported the ALJ’s finding that the focus in filling the Supervisor II

position was on the supervisory and managerial aspects of the position, more so than

the technical aspects. And this was reflected in the job posting description, which

reiterated a need for supervisory and management experience. Finding of Fact No.

39, which focuses specifically on what Dr. Merritt was looking for in candidates, again

reiterates the need for supervisory experience. This finding is supported by his

testimony.

      On Finding of Fact No. 45, Ms. Rath testified that she served in a Supervisory

II position from 2004 to 2007. She also testified that when she was promoted to the

Supervisor II position, she had never held a supervisory title. But Ms. Rath was hired

almost a decade earlier, by someone other than Dr. Merrit, and no evidence was

presented of the job posting for the Supervisor II position at the time she applied or

whether it listed a requirement of prior supervisory experience. Therefore, we hold

these findings are supported by substantial evidence.

      IV.    Business Records Exception to Hearsay

      Petitioner next contends the ALJ erred in making findings of fact No. 28, 43,

and 46 -- which pertain to Mr. Lawson’s credentials -- because they are based on



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hearsay. Petitioner argues that Lawson’s credentials are all hearsay because the

credentials were presented on notes and paper the hiring officials -- including Dr.

Merritt -- compiled during Lawson’s interview for the Medical Supervisor II job. The

ALJ found as fact:

            28.     Thomas G. Lawson met the minimum education
            requirements as he has a Bachelor’s degree in biology and
            a Master’s degree in biotechnology. Lawson also had
            several years of laboratory experience in a supervisory
            capacity. This exceeded the MLS II position requirement
            for at least a year of laboratory experience in a supervisory
            capacity.
            ....
            43.     Review of Lawson’s application revealed that he
            exceeded the minimum qualifications for the MLS II
            position:
                    a.     Lawson oversaw the laboratory operations for
                    a clinical and environmental testing laboratory. He
                    designed, implemented, and managed components
                    for quality assurance programs.
                    b.     Lawson developed and maintained standard
                    operating procedures; competency assessment for
                    testing; proficiency testing; corrective action
                    reporting; specimen turnaround time optimizations;
                    compliance auditing; and new assay performance
                    verification.
                    c.     Lawson hosted and directed federal auditors
                    during      Clinical     Laboratory     Improvement
                    Amendment inspections.
                    d.     Lawson was involved in budgeting activities
                    and established relationships within the biotech
                    industry. He communicated with stakeholders,
                    public health officials, vendors, and news media.
                    e.     Lawson conducted recruitment, selection, and
                    orientation procedures for new employees;
                    conducted employee performance evaluations; and
                    managed employee promotions and discharges.


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                   Lawson provided technical oversight and training of
                   between 6 and 12 scientists in several testing areas.
                   f.     Lawson had several years of testing
                   experience as a microbiologist.       He conducted
                   molecular testing for the detection of bio-threat
                   agents and infectious organisms. He performed
                   quality control for testing he conducted. He worked
                   as a senior microbiologist at the Texas Department
                   of State Health Services performing biological tests
                   to detect infectious organisms using testing
                   techniques utilized in the SLPH.
            ....
            46.    Lawson was offered the MLS II position and he
            accepted the offer. He started in the MLS II position in
            May 2016. Lawson was not a career state employee of the
            State of North Carolina at the time he was hired into the
            MLS II position. Dr. Merritt, in conjunction with the
            interview team, concluded that Lawson was the most
            qualified candidate; and that he was significantly better
            suited to the position than Petitioner. Lawson possessed
            the laboratory experience in a supervisory and
            management capacity that Petitioner did not have.

      At the OAH hearing, petitioner objected several times to the admission of

evidence regarding Lawson’s credentials, arguing this evidence was hearsay because

Mr. Lawson was not present to testify. Hearsay is defined as, “a statement, other

than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule

801(c) (2017). “However, statements offered for other purposes are not hearsay.”

Taylor v. Abernethy, 174 N.C. App. 93, 99, 620 S.E.2d 242, 246 (2005) (citations,

quotation marks, and brackets omitted). Also, hearsay evidence may be admissible

if it falls under one of the exceptions to the hearsay rule listed in North Carolina


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Rules of Evidence Rule 803. See N.C. Gen. Stat. § 8C-1, Rule 803 (2017). Business

records are one such exception. See, e.g., N.C. R. Evid. Rule 803 (6) (“The following

are not excluded by the hearsay rule, even though the declarant is available as a

witness: . . . (6) Records of Regularly Conducted Activity.”).

      Here, the ALJ overruled Petitioner’s objection based upon the “records of

regularly conducted activity” exception to the hearsay rule because Mr. Lawson’s job

application and the hiring officials’ notes taken during the interview about Lawson’s

credentials were business records kept as a part of the usual hiring process. As noted

above, records of regularly conducted activity are addressed in Rule 803(6), which

states,

             A memorandum, report, or data compilation, in any form,
             of acts, events, conditions, opinions, or diagnoses, made at
             or near the time by, or from information transmitted by, a
             person with knowledge, if (i) kept in the course of a
             regularly conducted business activity and (ii) it was the
             regular practice of that business activity to make the
             memorandum, report, record, or data compilation, all as
             shown by the testimony of the custodian or other qualified
             witness, or by affidavit or by document under seal . . . made
             by the custodian or witness, unless the source of
             information or the method or circumstances or preparation
             indicate lack of trustworthiness.

Id.

      NCDHHS presented several exhibits which petitioner claims are inadmissible

hearsay, including Mr. Lawson’s application for the job and interview notes, which

also include information on his credentials and experience. Petitioner’s first objection


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came after Ms. Shanda Snead began testifying about Mr. Lawson’s education based

upon his job application.     Ms. Snead was the “recruiter for Public Health,” a

department within NCDHHS that includes the State Lab of Public Health. Her job

was to

             work with the hiring managers when there’s a vacancy or
             a new position that needs to be filled. In going through that
             process, I would create the posting, working with the
             applicant tracking system, requesting -- receiving the
             applications, reviewing them, screening them, and then
             sending them the qualified applicants and then following
             up with them later on if there’s questions with the hiring,
             interview process.

She testified about the usual process used by NCDHHS for hiring, including the

entire process of posting the job, collecting information on the applicants, screening

the applicants, and selecting the applicant.       The information is collected in the

“NEOGOV system[,]” which is an electronic system. She would then screen the

applications for minimum qualifications, and those that met the minimum job

qualifications would be transmitted to the hiring manager, who is normally the

supervisor who will decide which applicants to interview and ultimately hire. She

described specifically the job posting for the position at issue in this case, as well as

the receipt and screening of the applications, including those from Mr. Lawson and

petitioner. Both of these applications were collected and transmitted to the hiring

manager -- in this case, Dr. Merritt -- in the usual manner.




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      Petitioner objected to this testimony and the job application as hearsay

because “Mr. Lawson is not here to verify and -- which statement -- call for the truth

of the matter, sir.”   Counsel for respondent noted that the job application was

admissible hearsay under the business records exception.          He noted that the

application and information submitted to the hiring manager comes from the

applications submitted by the applicants through the NEOGOV system.

             Business records made in the ordinary course of business
             at or near the time of the transaction involved are
             admissible as an exception to the hearsay rule if they are
             authenticated by a witness who is familiar with them and
             the system under which they are made. The authenticity
             of such records may, however, be established by
             circumstantial evidence. There is no requirement that the
             records be authenticated by the person who made them.

State v. Wilson, 313 N.C. 516, 533, 330 S.E.2d 450, 462 (1985) (citations omitted).

      The evidence here showed that the job applications and other information

about the qualifications of the job applicants, including Mr. Lawson, were “(i) kept in

the course of a regularly conducted business activity,” N.C. R. Evid. 803(6),

specifically, NCDHHS’s process for posting new jobs and hiring new employees. “[I]t

was the regular practice of” NCDHHS to collect applications in the NEOGOV system

and to use this data compilation to make the hiring decisions. See id. Ms. Snead was

a “custodian or other qualified witness” who testified about the business practice of

collecting the applications and transmitting them to the hiring manager.              Id.

Therefore, the ALJ correctly overruled petitioner’s objection based on hearsay, since


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Mr. Lawson’s application and the other records regarding his qualifications were

business records admissible under Rule 803(6). Id.

      This situation is similar to State v. Cagle, 182 N.C. App. 71, 76, 641 S.E.2d 705,

709 (2007), where the Director of Security for Biltmore Mall testified about the Mall’s

“procedures and processes for handling problematic checks” in a prosecution for

obtaining property by writing worthless checks.           The defendant objected to her

testimony about the worthless checks since “she did not witness their processing at

the bank.” Id. But this Court held that her testimony about the bad checks was

admissible under Rule 803(6) because she testified about “the Mall’s handling of the

checks” based upon her first-hand knowledge of the Mall’s procedures. Id.

      The same analysis would apply to the interview notes taken during Mr.

Lawson’s interview for the job. These notes were a “memorandum, report, record, or

data compilation” of the “opinions” of the interviewer “made at or near the time” of

the interview, and it was also part of the regular practice of NCDHHS to keep a record

of the interview notes. See N.C. R. Evid. 803(6). In addition, essentially the same

information was included in the interview notes as in Mr. Lawson’s application. See

generally Thanogsinh v. Board of Educ., 462 F.3d 762, 775-76 (7th Cir. 2006) (“The

district court abused its discretion when it excluded the interviewers’ score sheet from

Cain’s interview and the handwritten notes on that sheet.             This document is

admissible under the business record exception to the hearsay rule. . . . In this case,



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Cain’s score sheet is precisely the type of memorandum or record that falls within the

ambit of the business record exception.” (Citations, quotation marks, and footnote

omitted)).

      Petitioner contends that when Mr. Lawson completed his application, he did

not work for NCDHHS, so any document he created could not fall under the business

record exception to the general rule of exclusion of hearsay. But the focus is not on

Lawson’s position, but on the authentication of the records, including the information

collected by NCDHHS as part of its regular hiring process. “There is no requirement

that the records be authenticated by the person who made them.” Wilson, 313 N.C.

at 533, 330 S.E.2d at 462. Petitioner’s argument that Mr. Lawson did not create the

record has the same flaw as the defendant’s argument in Cagle, as noted above, that

the Mall Directory of Security “did not witness” the processing of the checks at the

bank. Cagle, 182 N.C. App. at 76, 641 S.E.2d at 709. Petitioner has not noted any

reason for exclusion of this information on the theory that “the source of information

or the method or circumstances of preparation indicate lack of trustworthiness.” N.C.

R. Evid. Rule 803(6). In addition, Dr. Merritt’s interviews were taken in the usual

course of his role as hiring manager to interview applicants for the open position. Dr.

Merritt made a “data compilation” of his “opinions” regarding the qualifications of the

applicants, including Mr. Lawson, “at or near the time” of the interview, and these

were kept as part of the “regular practice” of NCDHHS to keep records of the hiring



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process. Id. Both Dr. Merritt and Ms. Snead testified at length about this process.

Therefore, the ALJ correctly overruled Petitioner’s objection to the testimony and

evidence regarding Mr. Lawson’s qualifications as they were shown on his application

and as reflected in Dr. Merritt’s interview notes when he was making the hiring

decision. In addition, the ALJ’s findings of fact regarding Mr. Lawson’s credentials

and experience were supported by the record.

       V.     Substantially Equal Qualifications

       Finally, petitioner argues that the ALJ erred in concluding that she did not

have substantially equal qualifications as Mr. Lawson and in failing to give her

priority consideration as a career State employee for the position. Because we have

concluded that the ALJ did not err in finding that petitioner failed to meet the

minimum qualifications for the position, she also did not qualify for priority

consideration. Therefore, it was not error for the ALJ to decline to give her priority

consideration as a career State employee, as an employee must meet the minimum

qualifications for the position for the priority to apply. See 25 N.C.A.C. 01H.0635(a)

(“The employee or applicant must possess at least the minimum qualifications set

forth in the class specification of the vacancy being filled.”).

                                       Conclusion

       We affirm the final decision of the Office of Administrative Hearings.

       AFFIRMED.



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         WEAVER V. N.C. DEP’T OF HEALTH & HUM. SERVS.

                       Opinion of the Court



Judges DAVIS and ARROWOOD concur.




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