              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-380

                                   Filed: 5 April 2016

Greene County, No. 14 CVS 132

ALBERT BARRON, Petitioner,

             v.

EASTPOINTE HUMAN SERVICES LME, Respondent.


      Appeal by Respondent from an order entered 5 January 2015 by Judge Paul L.

Jones in Superior Court, Greene County.             Heard in the Court of Appeals

19 October 2015.


      Gray Newell Thomas, LLP, by Angela Newell Gray, for Petitioner-Appellee.

      The Charleston Group, by Jose A. Coker, R. Jonathan Charleston, Coy E.
      Brewer, Jr., and Dharmi B. Tailor, for Respondent-Appellant.


      McGEE, Chief Judge.


      Eastpointe Human Services LME (“Eastpointe”), appeals from an order of the

trial court (“the trial court’s order”), reversing the final decision of an administrative

law judge (“the ALJ’s decision”) that held Eastpointe (1) had grounds to dismiss

petitioner Albert Barron (“Mr. Barron”) as an employee and (2) had given Mr. Barron

sufficient notice of the reasons for his dismissal. The trial court held that Eastpointe

“did not [meet] its burden of proof that it had ‘just cause’ to dismiss” Mr. Barron and
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                                    Opinion of the Court



that the ALJ’s decision was “[a]ffected by other error of law.” We reverse the order

of the trial court.

                                     I. Background

       Eastpointe describes itself in its brief as

              a local political subdivision of the State of North Carolina
              and a managed care organization that serves twelve (12)
              counties in eastern North Carolina. The agency has
              responsibility for oversight, coordination, and monitoring
              of mental health, intellectual developmental disabilities,
              and substance use addiction services in its catchment area.
              Eastpointe authorizes payment of medically necessary
              Medicaid services for residents of the catchment area
              whose Medicaid originates in the Eastpointe region.
              Eastpointe also provides housing to a limited number of
              special needs consumers.

(footnotes omitted).

       Eastpointe hired Mr. Barron in 2001.            Mr. Barron became Eastpointe’s

Housing Coordinator in 2006, and his title was changed to Director of Housing when

Eastpointe merged with two similar managed care organizations in 2012. As Director

of Housing, Mr. Barron “provide[d] direction in the development of affordable housing

for special needs populations . . . [u]nder minimal supervision of the Chief of Clinical

Operations[.]”

       A consumer of housing services (“Consumer”) accused Mr. Barron, inter alia,

of touching her sexually without her consent in August 2012 and also of promising

her furniture if she entered into a relationship with him.           Mr. Barron was

subsequently placed on “Investigative Status with pay” and, after a pre-dismissal

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conference,   he   was    dismissed    from     employment      with   Eastpointe   on

19 December 2012. Mr. Barron petitioned the Office of Administrative Hearings to

review his dismissal by filing a “Petition for a Contested Case Hearing[.]” After a

hearing, the ALJ’s decision affirmed his dismissal.      Mr. Barron petitioned the

Superior Court of Greene County to review the ALJ’s decision, and the trial court

reversed the ALJ’s decision. Eastpointe appeals.

                                 II. The Evidence

                    A. Mr. Barron’s Interactions with Consumer

      An administrative hearing was held on 23 October 2013 and 16 January 2014

(hereinafter, “the hearing”) in this matter. During the hearing, Karen Holliday (“Ms.

Holliday”), a Housing Specialist with Eastpointe, testified that, in late August 2012,

she asked Mr. Barron to take a copy of Consumer’s lease to Consumer. Mr. Barron

testified that he agreed to do so and went to Consumer’s home on the morning of

24 August 2012. Mr. Barron and Consumer both testified that Consumer answered

the door, informed Mr. Barron that she was not properly dressed, and asked Mr.

Barron to return at a later time. Mr. Barron agreed and left.

      Ms. Holliday testified she received a call from Consumer’s case manager, Joy

Coley (“Ms. Coley”), later that day indicating Consumer was ready for Mr. Barron to

deliver her lease. Consumer testified Mr. Barron returned to her home later that day

and that she was in the kitchen preparing food for her two sons. Consumer testified

Mr. Barron entered her home, spoke to her sons for a while, and said “y’all have a

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sexy mom[.]”   In response, Consumer instructed her boys to leave the kitchen.

Consumer further testified

             [Mr. Barron] got up and he came around, and he told me
             himself how fine and sexy I was. He asked me for a hug. I
             gave him a hug. . . . [H]e grabbed my buttocks and turned
             around and pulled his hand around and grabbed my
             private part, and I started backing up, and he pulled me
             back closer to him. He told me that if I ever told anybody
             that he would – he would take the house away from me that
             he blessed me with. . . . [H]e [also] told me basically if I
             started seeing him that he would make sure . . . I got
             furniture and that he would take care of me and my boys,
             [that] he would make sure that I wouldn't go without.

Mr. Barron acknowledged that, later that day, he sent Consumer some text messages

that read, “H[i] [Consumer], this is Albert and this is my personal cell. It was so

lovely meeting with you today . . . . [P]lease send me some of those amazing pics

[your] son let me [see] on [your] phone.” Consumer testified she sent Mr. Barron two

pictures of herself, in which she was wearing different dresses and was posing for the

camera. The texts and pictures were admitted into evidence at the hearing without

objection. Mr. Barron acknowledged that Consumer sent him one picture, at his

request, and that he responded by texting “Gorgeous!!!” Mr. Barron testified his

response of “Gorgeous!!!” was meant “to describe something elegant or something

with splendor, or something like that because, like a sunset, something like that. I

use that word a lot and – to put that significance on something, yeah.”

      Ms. Holliday testified that Consumer called her within a couple of days of Mr.

Barron’s visit to Consumer’s home. According to Ms. Holliday, Consumer seemed

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               very upset and [was] saying that Mr. Barron . . . had been
               really inappropriate with her and she didn't like the fact
               that he had disrespected her in front of her kids. And to
               my recollection [Consumer said] something about living
               room furniture and that he had promised her living [room]
               furniture or something to that nature. . . . [Consumer also]
               state[d] at that time that Mr. Barron did touch her
               buttocks.

Ms. Holliday testified she met with Mr. Barron the following day and confronted him

about engaging in “inappropriate behavior” with Consumer, although Ms. Holliday

testified she did not go into the specifics of Consumer’s allegations that were sexual

in nature. Mr. Barron denied any wrongdoing. Ms. Holliday also confronted Mr.

Barron about his allegedly offering Consumer furniture, which he denied.                          Ms.

Holliday testified she did not report either of Consumer’s allegations further up the

chain of command because Mr. Barron was Ms. Holliday’s supervisor. Regarding

Consumer’s allegation that Mr. Barron had offered her furniture, Mr. Barron testified

he also did not report that allegation up the chain of command. Dr. Susan Corriher

(“Dr. Corriher”), Eastpointe’s Chief of Clinical Operations, testified that not reporting

Consumer’s allegations up the chain of command violated Eastpointe’s Corporate

Compliance Manual and Human Resources Policy and Procedure Manual.1




       1  Eastpointe’s Corporate Compliance Manual states that “[i]t will be the policy of Eastpointe
to take all reports of potential violations [of the law] seriously. Any such report must be directed to
the Corporate Compliance Officer[.]” Eastpointe’s Human Resources Policy and Procedure Manual
states that, when receiving a consumer complaint that “cannot be resolved to the complainant’s
satisfaction without further investigation[,]”



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      Mr.   Barron       testified   he    received    another     text   from   Consumer   in

September 2012 that stated: “I wonder[ ] [what] or who scared [you] to have made

[you] change [your] mind about [what] all [you] said to me [before you left] my [house]

that [day].” He then received a string of texts from Consumer between 31 October

and 2 November 2012, stating that Consumer had a “huge surprise” for Mr. Barron,

that he “screwed up[,]” and that he messed with “the[ ] [w]rong chick.”             Mr. Barron

contacted Dr. Corriher about the texts on 2 November 2012.

                                     B. The Investigation

      Mr. Barron met with Dr. Corriher and Kenneth E. Jones (“Mr. Jones”),

Eastpointe’s Chief Executive Officer, on 5 November 2012 (“the 5 November

meeting”) to discuss Consumer’s allegations and the events that had taken place since

24 August 2012. Dr. Corriher testified Mr. Barron acknowledged asking for and

receiving a picture from Consumer and that he replied by texting: “Gorgeous!!!”

According to Dr. Corriher, Mr. Barron said he did not report the texts or allegations

to her earlier because “the text messages had stopped at some point, and he thought



             staff will engage the formal complaint process. The staff who will
             receive the complaint will document the following information within
             [an Eastpointe] database:
                  Date complaint received
                  Complainant’s name and contact information
                  Relationship to the consumer (if not the consumer)
                  Brief description of the nature of the complaint
             ...
             This information is then immediately sent to the Customer Services
             Lead or designee.

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it was over,” and that he later reported the texts to her because Consumer had started

texting him again and his attorney had advised him to do so. Dr. Corriher further

testified that, during the 5 November meeting, she specifically asked Mr. Barron

about Consumer’s accusations that he had touched Consumer, which Mr. Barron

denied.

      Dr. Corriher testified that, after the 5 November meeting, she consulted with

Theresa Edmondson (“Ms. Edmondson”), Eastpointe’s Director of Corporate

Compliance and Human Resources, and instituted an investigation into Consumer’s

allegations (“the investigation”).     The Eastpointe staff members assigned to

investigate Consumer’s allegations (“the investigative team”) consisted of Dr.

Corriher, Ms. Edmondson, Lynn Parrish, a member of the Human Resources

Department at Eastpointe, and Tashina Raynor, Eastpointe’s Director of Grievance

and Appeals.

      Pending the results of the investigation, Mr. Barron was placed on

“Investigative Status with pay” on 6 November 2012. The letter from Eastpointe

notifying Mr. Barron of the change in his status (“the investigative status letter”)

stated, in part, that

               [t]he reports of unacceptable conduct resulting in your
               being placed in Investigatory Status with pay are:

               1. Allegations of inappropriate relationship with a
                  consumer[.]



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               2. Not reporting these allegations to your supervisor in a
                  timely manner.

      Dr. Corriher testified about a telephone interview she had with Consumer on

26 November 2012 to discuss the allegations against Mr. Barron.              Dr. Corriher

documented that interview, and the statements reportedly made by Consumer during

the interview were generally consistent with those reported by Ms. Holliday from her

initial telephone conversation with Consumer. Mr. Barron met with the investigative

team on 29 November 2012 to answer questions about Consumer’s allegations (“the

29 November meeting”). According to Mr. Barron, he “was very surprised” by the

questions asked during the 29 November meeting, because he thought the

investigative team was investigating his concerns regarding Consumer’s text

messages to him. Mr. Barron submitted a four-page summary of his account of the

interactions    between    him   and    Consumer      to   the   investigative   team   on

30 November 2012.

                C. The Pre-Dismissal Conference and Dismissal Letter

      Eastpointe issued Mr. Barron a notice of pre-dismissal conference, dated

13 December 2012 (“the pre-dismissal notice”), that stated, in part,

               [t]he findings of the investigative team are as follows:

               1.   A consumer of housing services (“Consumer”) has
                    made accusations of inappropriate conduct by you.
                    This accusation of inappropriate conduct included
                    speaking [to] and touching her in an inappropriate
                    manner, promising her living room furniture, [and]


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                   communicating with her through text messaging on
                   your personal cell phone.

                   ...

              4.   By your own admission you learned on August 29,
                   2012 from a co-worker that [ ] Consumer was making
                   accusations about your inappropriate personal
                   conduct towards her. Further, you did not report this
                   fact to your [supervisor] until [November] 5, 2012.

                   ...

              6.   Based on text messages you presented to
                   management, you engaged in unprofessional and
                   inappropriate communication with [ ] Consumer.

        Eastpointe held a pre-dismissal conference on 17 December 2012 (“the pre-

dismissal conference”), in which Mr. Barron participated. Mr. Jones sent Mr. Barron

a dismissal letter, dated 19 December 2012 (“the dismissal letter”), that stated, in

part,

              our decision is to dismiss you from your position as Director
              of Housing effective Wednesday, December 19, 2012 at 5:00
              p.m. The basis for termination includes unacceptable
              personal conduct and conduct unbecoming an employee
              that is detrimental to the agency services.

              The determination was based on the following[ ]:

              1. A consumer of housing services made accusations of
                 inappropriate conduct by you.

              2. You confirmed you communicated with this consumer
                 on your personal cell phone[,] . . . [and] [i]t was
                 determined that some of the communications were not
                 work related or professional.



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            3. That you learned on August 29, 2012 from a co-worker
               that this consumer was making accusations about you
               exhibiting inappropriate personal contact towards her,
               but did not report this to your supervisor until
               [November] 5, 2012.

                  ...

            6. You inappropriately asked this consumer for a picture,
               which was sent, and received by you.

                                 D. The ALJ’s Decision

      Mr. Barron filed a “Petition for a Contested Case Hearing” with the Office of

Administrative Hearings, dated 14 January 2013. Mr. Barron alleged in his petition

that Eastpointe

            has substantially prejudiced [his] rights by acting
            erroneously, failing to use proper procedure, and acting
            arbitrarily or capriciously when it suspended and
            ultimately terminated the petitioner for alleged
            unacceptable personal conduct related to a consumer’s
            alleged accusations of inappropriate conduct. [Mr. Barron]
            contends that [Eastpointe] terminated him without just
            cause based on false accusations.

After a hearing, the ALJ, in a decision dated 22 April 2014, made numerous findings

in line with Consumer’s allegations and concluded that

            33. [Mr. Barron’s] willful failure to report the allegations
                against him until matters escalated violated known
                and written work rules.

            34. [Mr. Barron’s] personal relations and touching of
                Consumer [ ] were inappropriate behavior[s] that
                constituted unacceptable personal conduct and
                conduct unbecoming an employee. [Mr. Barron’s]
                interactions and text messaging with Consumer [ ]


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                         was “conduct unbecoming a state employee that is
                         detrimental to state service[ ]” [under 25 N.C.A.C.
                         1J .0614(8).]

                         ...

                   38. In this case, [Mr. Barron] did in fact engage in the
                       conduct as alleged in four of the six enumerated bases
                       in the [dismissal] letter of December 19, 2012, which
                       constitutes unacceptable conduct as defined by
                       [25 N.C.A.C. 1J .0614(8)]. [Eastpointe] had “just
                       cause” for disciplining [Mr. Barron].

The ALJ’s decision also noted that the dismissal letter was “inartfully” drafted but

held, nonetheless, that it provided Mr. Barron with sufficient notice of the grounds

for his dismissal.

                                      E. The Trial Court’s Order

         In a petition dated 16 May 2014, Mr. Barron petitioned the Superior Court of

Greene County to review the ALJ’s decision. Mr. Barron filed with the trial court

“Petitioner’s Memorandum in Support of His Petition for Judicial Review” (“the

Memorandum”), dated 4 December 2014.2                          The trial court’s order, entered

5 January 2015, is less than two pages in length and summarily concludes that

                   (2)   [Eastpointe] did not [meet] its burden of proof that it
                         had “just cause” to dismiss [Mr. Barron] for
                         unacceptable personal conduct without warning or
                         other disciplinary action.




         2   Mr. Barron’s Memorandum is largely replicated, almost word for word, in his brief before this
Court.

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             (3)   The substantial rights of [Mr. Barron] were prejudiced
                   because the ALJ's findings, inferences, conclusions, or
                   decisions are:

                   a.     Affected by other error of law;

                   b.     Unsupported by substantial evidence admissible
                          under G.S. §§150B-29(a), 150B-30, or 150B-31 in
                          view of the entire record as submitted; and,

                   c.     Arbitrary, capricious, or an abuse of discretion.

             (4)   There is no evidence that [Mr. Barron] willfully
                   violated any known or written work rule, engaged in
                   conduct for which no reasonable person should expect
                   to receive prior warnings, or conduct unbecoming a
                   state employee that is detrimental to state service.

             (5)   The ALJ's decision has no rational basis in the
                   evidence.

Accordingly, the trial court reversed the ALJ’s decision.

                                III. Standard of Review

      Judicial review of a final agency decision in a contested case is governed by

N.C. Gen. Stat. § 150B-51 (2015). The statute “governs both trial and appellate court

review” of administrative decisions. N.C. Dept. of Correction v. Myers, 120 N.C. App.

437, 440, 462 S.E.2d 824, 826 (1995), aff'd per curiam, 344 N.C. 626, 476 S.E.2d 364

(1996). Pursuant to N.C.G.S. § 150B-51(b),

             [t]he court reviewing a final decision may . . . reverse or
             modify the decision if the substantial rights of the
             petitioner[ ] may have been prejudiced because the
             findings, inferences, conclusions, or decisions are:

             ...


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             (4)   Affected by other error of law;

             (5)   Unsupported by substantial evidence . . . ; or

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

When the issue for review is whether an agency decision was supported by

“substantial evidence” or was “[a]rbitrary, capricious, or an abuse of discretion,” this

Court determines whether the trial court properly applied the “whole record” test.

N.C.G.S. § 150B-51(c). This requires

             examin[ing] 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.

N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895

(2004) (citation and quotation marks omitted). The trial court “may not substitute

its judgment for the agency’s as between two conflicting views,” id., and it is “bound

by the findings” made below if they are “supported by competent, material, and

substantial evidence in view of the entire record as submitted[,]” Bashford v. N.C.

Licensing Bd. for General Contractors, 107 N.C. App. 462, 465, 420 S.E.2d 466, 468

(1992).

      We review de novo the question of whether an agency decision was “[a]ffected

by other error of law[.]” N.C.G.S. § 150B-51(c); see Skinner v. N.C. Dep't of Corr., 154

N.C. App. 270, 279, 572 S.E.2d 184, 191 (2002) (“[W]here the initial reviewing court



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should have conducted de novo review, this Court will directly review the [agency’s]

decision under a de novo review standard.”). “However, the de novo standard of

review . . . [also] does not mandate that the reviewing court make new findings of fact

in the case. Instead, the court, sitting in an appellate capacity, should generally defer

to the administrative tribunal’s ‘unchallenged superiority’ to make findings of fact.”

Early v. County of Durham, Dep’t of Soc. Servs., 193 N.C. App. 334, 342, 667 S.E.2d

512, 519 (2008) (citation omitted). “[W]e employ the appropriate standard of review

regardless of that utilized by the reviewing trial court.” Skinner, 154 N.C. App. at

279, 572 S.E.2d at 191.

                            IV. Abandonment of Issues

      As a preliminary matter, Mr. Barron contends in his brief that Eastpointe has

abandoned its arguments on appeal because it did not set out formal “assignments of

error” in the record or in its brief. However, the requirement that an appellant set

out “assignments of error no longer exist[s] under our Rules of Appellate procedure;

[it] disappeared . . . when the Rules were revised in 2009.” Bd. of Dirs. of Queens

Towers Homeowners' Assoc., v. Rosenstadt, 214 N.C. App. 162, 168, 714 S.E.2d 765,

769 (2011). Accordingly, Mr. Barron’s argument is without merit.

                                    V. Just Cause

      Eastpointe contends on appeal that the trial court erred by reversing the ALJ’s

decision and asserts it established just cause to dismiss Mr. Barron as an employee.

Mr. Barron argued to the trial court below that the ALJ erred in concluding that

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Eastpointe had established just cause to dismiss Mr. Barron. The trial court agreed

with Mr. Barron, holding that the ALJ’s decision was “[u]nsupported by substantial

evidence[,]” “[a]rbitrary, capricious, or an abuse of discretion[,]” and that there was

“no rational basis in the evidence” to establish just cause for Eastpointe’s dismissal

of Mr. Barron. We conclude that Eastpointe did have just cause to terminate Mr.

Barron.

       N.C. Gen. Stat. § 126-35(a) (2015) provides that “[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.” Establishing just cause

“requires two separate inquiries: first, whether the employee engaged in the conduct

the employer alleges, and second, whether that conduct constitutes just cause for the

disciplinary action taken.” Carroll, 358 N.C. at 665, 599 S.E.2d at 898 (citation,

quotation marks, and brackets omitted). “[T]he first of these inquiries is a question

of fact . . . [and is] reviewed under the whole record test. . . . [T]he latter inquiry is a

question of law . . . [and] is reviewed de novo. Id. at 665–66, 599 S.E.2d at 898; see

N.C.G.S. § 150B-51(c).

       Just cause includes “unacceptable personal conduct” by an employee.

25 N.C.A.C. 1J .0604(b). Unacceptable personal conduct is defined, in part, as

              (a)   conduct for which no reasonable person should expect
                    to receive prior warning;

                    ...


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                (d)   the willful violation of known or written work rules;
                      [or]

                (e)   conduct unbecoming a state employee that is
                      detrimental to state service[.]

25 N.C.A.C. 1J .0614(8).

      Based on the testimony of Consumer, Ms. Holliday, Dr. Corriher, and even Mr.

Barron – all of which is outlined above – as well as the pictures and texts that were

admitted into evidence, there was “competent, material, and substantial evidence[,]”

See Bashford, 107 N.C. App. at 465, 420 S.E.2d at 468 – if not compelling evidence –

that Mr. Barron (1) touched Consumer sexually without her consent; (2) engaged in

inappropriate text messaging with Consumer; and (3) failed to report at least some

of Consumer’s allegations against him until matters escalated. Id. Accordingly, the

trial court erred by concluding that the ALJ’s decision was “[u]nsupported by

substantial evidence[,]” “[a]rbitrary, capricious, or an abuse of discretion[,]” and that

there was “no rational basis in the evidence” for Eastpointe to dismiss Mr. Barron for

just cause.

              VI. Alleged Due Process Violations During the Investigation

      Eastpointe contends the trial court erred by reversing the ALJ’s decision and

asserts that Mr. Barron did not establish that his due process rights were violated

during the investigation. Mr. Barron argued to the trial court that his due process

rights had been violated during the investigation, and that, therefore, the ALJ’s

decision should have been reversed because (1) Dr. Corriher allegedly headed up the

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investigation and was biased against him after speaking with Consumer; (2)

Eastpointe’s investigative team was made up of an “untrained, inexperienced group

of females . . . [who] showed bias against” him during the investigation; and (3) he

was “subjected to a ‘hearing’ without proper notice” while the investigation was

ongoing. We conclude that Mr. Barron did not establish that his due process rights

were violated during the investigation.

      Career state employees are “entitled to a hearing according with principles of

due process” before being dismissed from their jobs. See Crump v. Bd. of Education,

326 N.C. 603, 614, 392 S.E.2d 579, 584 (1990). “To make out a due process claim

based on [bias], an employee must show that the decision-making board or individual

possesses a disqualifying personal bias.” See Kea v. Department of Health & Human

Sevs., 153 N.C. App. 595, 605, 570 S.E.2d 919, 925 (2002), aff'd per curiam, 357 N.C.

654, 588 S.E.2d 467 (2003).      “The mere fact [that the person who ultimately

recommends the dismissal of an employee] was familiar with the facts of [the

employee’s] case and acted as investigator and adjudicator on the matter is not a per

se violation of due process.” Id. at 605, 570 S.E.2d at 926. That person may “reach[ ]

conclusions concerning [the employee’s] situation prior to the [pre-dismissal]

conference” when those conclusions are “based on” facts obtained during a thorough

investigation. Id. at 606, 570 S.E.2d at 926.




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                         A. Dr. Corriher’s Role in the Investigation

       In the present case, Mr. Barron argued to the trial court that Dr. Corriher, his

direct supervisor, headed up the investigation and was biased against him after

speaking to Consumer. Mr. Barron also argued that Dr. Corriher was the one who

ultimately recommended that he be dismissed.3 However, Mr. Barron made no

attempt to distinguish Kea from the present case. As in Kea, “[t]he mere fact [that

Dr. Corriher] was familiar with the facts of [Mr. Barron’s] case and acted as

investigator and[,] [perhaps to some extent,] adjudicator on the matter [was] not a

per se violation of due process.” See id. at 605, 570 S.E.2d at 926. Even assuming

arguendo that Dr. Corriher may have come to certain conclusions about Mr. Barron’s

situation before his pre-dismissal conference, Mr. Barron does not assert that those

conclusions were “based on” anything other than the facts Dr. Corriher learned

during her investigation. See id. at 606, 570 S.E.2d at 926. Accordingly, Mr. Barron

had not demonstrated that Dr. Corriher’s fulfilling her role on the investigative team

and possibly recommending his dismissal demonstrated that she “possesse[d] a

disqualifying personal bias” in any way. See id. at 605, 570 S.E.2d at 925.




       3  However, both Dr. Corriher and Mr. Barron acknowledged at the hearing that the final
decision to actually dismiss Mr. Barron was made by Mr. Jones, Eastpointe’s CEO. Also, notably,
when asked during the hearing whether Mr. Barron knew if “the recommendation made for [his]
termination [came] from Dr. Corriher [or] Theresa Edmondson[,]” Mr. Barron replied: “Not to my
knowledge.”

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                             B. The Investigative Team

      Mr. Barron also argued to the trial court that Eastpointe’s investigative team

was made up of an “untrained, inexperienced group of females . . . [who] showed bias

against” him during the investigation. As a preliminary matter, it is unclear to this

Court as to who at Eastpointe – other than Dr. Corriher, Eastpointe’s Chief of Clinical

Operations; Ms. Edmiston, Eastpointe’s Director of Corporate Compliance and

Human Resources; and Tashina Raynor, Eastpointe’s Director of Grievance and

Appeals – would have been more qualified to oversee the investigation in the present

case. Notably, Mr. Barron has been silent on that point.

      We also do not believe that the investigative team consisting of a “group of

females” necessarily establishes bias in the present case. Mr. Barron presented no

evidence at the hearing that the investigative team used gender-charged language

during the investigation or otherwise showed that the team members’ interactions

with Mr. Barron during the investigation were informed by anything beyond the facts

of the investigation. A person’s gender does not equate to having a disqualifying

personal bias. Without more, Mr. Barron had not established that the investigative

team “possesse[d] a disqualifying personal bias” in any way. See id.

                            C. The 29 November Meeting

      Mr. Barron further argued to the trial court that his due process rights were

violated when he met with the investigative team during the 29 November meeting

to answer questions about the situation involving Consumer. Notably, Mr. Barron

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                                   Opinion of the Court



raised no challenge with the trial court regarding his pre-dismissal conference, or the

notice thereof. Instead, Mr. Barron contended his due process rights were violated

when he was “subjected to a ‘hearing’ without proper notice” when he met with the

investigative team during the 29 November meeting, prior to the pre-dismissal

conference and while the investigation was still ongoing.

      However, at the hearing, Mr. Barron testified that Dr. Corriher did, in fact,

notify him of the 29 November meeting and informed him that the purpose of the

meeting was for the investigative team to “hear [his] side” of the situation with

Consumer. Moreover, Mr. Barron has never contended that he was deprived of a

proper pre-dismissal conference before being dismissed from his job. Although Mr.

Barron cited authority in the Memorandum, and in his brief before this Court,

holding generally that career state employees are “entitled to a hearing according

with principles of due process” before being dismissed from their jobs, see, e.g., Crump,

326 N.C. at 614, 392 S.E.2d at 584, he has provided no further authority or

substantive argument suggesting that the 29 November meeting constituted an

additional “hearing” that similarly implicated his due process rights. See id. Mr.

Barron’s argument was without merit.

                       VII. Notice of Reasons for Dismissal

      Eastpointe contends on appeal that the trial court erred by reversing the ALJ’s

decision and asserts it gave Mr. Barron sufficient notice of the reasons for his

dismissal. Mr. Barron argued to the trial court that the ALJ’s decision affirming his

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                                   Opinion of the Court



dismissal from Eastpointe was affected by an error of law because he was given

insufficient notice of the reasons for his dismissal.

      In addition to providing that career state employees may only be discharged

for just cause, N.C.G.S. § 126-35(a) requires that

             [i]n cases of such disciplinary action, the employee shall,
             before the action is taken, be furnished with a statement in
             writing setting forth the specific acts or omissions that are
             the reasons for the disciplinary action and the employee's
             appeal rights.

N.C.G.S § 126-35(a). N.C.G.S § 126-35(a) “establishes a condition precedent that

must be fulfilled by the employer before disciplinary actions are taken.” Leiphart v.

N.C. School of the Arts, 80 N.C. App. 339, 350, 342 S.E.2d 914, 922 (1986).

             The purpose of [N.C.G.S. §] 126-35 is to provide the
             employee with a written statement of the reasons for his
             discharge so that the employee may effectively appeal his
             discharge. The statute [also] was designed to prevent the
             employer from summarily discharging an employee and
             then searching for justifiable reasons for the dismissal.

Id. at 350–51, 342 S.E.2d at 922 (citation omitted). The written notice must be stated

“with sufficient particularity so that the discharged employee will know precisely

what acts or omissions were the basis of his discharge.” Employment Security Comm.

v. Wells, 50 N.C. App. 389, 393, 274 S.E.2d 256, 259 (1981).

      The legal question of whether a dismissal letter is “sufficiently particular[,]”

id. (emphasis added), has always been fact-specific. In Wells, 50 N.C. App. at 389,

274 S.E.2d at 257 (1981), the employee was “suspended . . . from his job without pay


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                                   Opinion of the Court



pending an investigation into allegations that [the employee had] violated laws and

petitioner's policies in the performance of his duties.”           The employee was

subsequently fired and provided a dismissal letter, stating that the reasons for

dismissal were that the employee:

             1.   Violated Agency Procedure in attempting to recruit
                  workers from Florida by phone and personal visit.

             2.   Required growers to use crew leaders even though
                  workers were not a part of a crew nor did the crew
                  leader provide any service for his fee.

             3.   Forced workers to work for designated crew leader
                  even though the workers preferred not to work in a
                  crew. Workers who questioned assignment to a crew
                  were threatened with loss of job or deportation.

             4.   Violated Agency Procedure by not reporting illegal
                  aliens.

Id. at 392–93, 274 S.E.2d at 258–59. “[T]he only information given the [employee]

concerning the reasons for his dismissal was contained in [that] letter of dismissal.”

Id. at 392, 274 S.E.2d at 258. Moreover, the employee subsequently “requested

specific details regarding the four reasons for the dismissal . . . [and] asked for dates

and the names of the individuals involved in these incidents.” Id. at 393, 274 S.E.2d

at 259.   The state refused to provide the employee with that information.            Id.

Accordingly, this Court noted that the dismissal letter gave the employee “no way . . .

to locate [the] alleged violations in time or place, or to connect them with any person




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                                   Opinion of the Court



or group of persons” and held that the employee received insufficient notice in the

dismissal letter under N.C.G.S. § 126-35(a). Id. at 393, 274 S.E.2d at 259.

      Similarly, in Owen v. UNC-G Physical Plant, 121 N.C. App. 682, 684, 468

S.E.2d 813, 815 (1996), an employee was accused of making race-based and sex-based

derogatory comments to a number of her fellow employees. She also was accused of

“intimidat[ing] [other] employees and threaten[ing] reprisals if they persisted in

complaining about [her] conduct.” Id. Although the employee was given a pre-

dismissal conference, the dismissal letter “fail[ed] to include the specific names of [the

employee’s numerous] accusers in her dismissal letter[.]” Id. at 687, 468 S.E.2d at

817 (emphasis added).       Specifically, the employee’s dismissal letter stated the

following grounds for dismissal:

             First, I have found that while employees were working on
             a concrete job outside of Jackson Library in the last part of
             June you told a black employee, “If I was a black man, I
             would like to do this kind of work all day long.” This
             statement . . . was a racial, and sex-based slur . . . [and] is
             especially serious because it is a message to employees,
             from their supervisor, that work in the Grounds Division is
             assigned based on race and sex. . . . On other occasions,
             you have made comments such as “no man will ever meet
             my standards” and you have called employees “stupid.”

             Second, after learning that employees had complained to
             the management and to Human Resources about your
             conduct, you began to talk with employees to discourage
             pursuit of their complaints. Specifically, you distributed to
             three employees copies of discipline and notes about
             discipline you received last August. . . . You have also told
             employees, “If I go, I will take others with me.” Such
             statements and actions constitute attempts to intimidate

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                                         Opinion of the Court



               employees and threatened reprisals if they persisted in
               complaining about your conduct.

Id. at 684, 468 S.E.2d at 815. Based on the facts in Owen, this Court concluded the

employee “was unable, at least initially, to correctly locate in ‘time or place’ the

conduct which [the employer] cited as justification for her dismissal.” Id. at 687, 468

S.E.2d at 817. Accordingly, we held that the employee’s dismissal letter lacked

“sufficient particularity . . . [and, therefore,] render[ed] the statement of reasons

contained in the dismissal letter statutorily infirm” under N.C.G.S. § 126-35(a). Id.

at 687–88, 468 S.E.2d at 817.4

       However, in Leiphart, 80 N.C. App. at 351, 342 S.E.2d at 923, the employee

was dismissed for “personal misconduct[.]” Specifically, the employee’s dismissal

letter stated that the employee was dismissed for a single act: his “leadership role in



       4 Mr. Barron also relies heavily on Leak v. N.C. Dep't of Pub. Instruction, 176 N.C. App. 190,
625 S.E.2d 918 (2006) (unpublished), in his brief to support his position that the dismissal letter
provided insufficient notice of the reasons for his dismissal. However, unpublished cases, such as
Leak, are reported pursuant to Rule 30(e) of the North Carolina Rules of Appellate Procedure. As
noted by Evans v. Conwood, LLC, 199 N.C. App. 480, 490–91, 681 S.E.2d 833, 840 (2009),

               [t]his rule provides that citation of unpublished opinions is disfavored.
               Such an opinion may be cited if a party believes that it has precedential
               value to a material issue in the case, and there is no published opinion
               that would serve as well. When an unpublished opinion is cited,
               counsel must do two things: (1) they must indicate the opinion's
               unpublished status; and (2) they must serve a copy of the opinion on
               all other parties to the case and on the court.

Id. (citation and quotation marks omitted). In the present case, counsel did neither of these things.
“This conduct was a violation of the Rules of Appellate Procedure. In our discretion, we hold that this
conduct was not a gross violation of the Rules of Appellate Procedure meriting the imposition of
sanctions. However, counsel is admonished to exercise greater care in the future citation of
unpublished opinions.” See id.

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                                   Opinion of the Court



assembling the meeting of October [21], 1983, in [his supervisor’s] office. . . .” Id. We

held that the dismissal letter’s notice of this single, specific act was “sufficient[ly]

particular[ ]” and that the employee “was clearly notified of the specific act which led

to his dismissal.” Id. at 351–52, 342 S.E.2d at 923.

      In Nix v. Dept. of Administration, 106 N.C. App. 664, 667, 417 S.E.2d 823, 826

(1992), the employee’s dismissal letter stated generally that he “was being terminated

because he ‘had not been performing at the level expected by [his] position

classification,’ [ ] because there had been no ‘marked improvement’ ” in his job

performance, and because he had exhausted his vacation and sick leave.              The

employee also had received previous “oral and . . . written warnings” for his

unacceptable performance. Id. Accordingly, we held that the dismissal letter was

“sufficiently specific[,] . . . since [the employee] was already on notice due to the

previous two warnings that he was not performing at the expected level.” Id. (citing

Leiphart, 80 N.C. App. at 351, 342 S.E.2d at 922); accord Skinner, 154 N.C. App. at

280, 572 S.E.2d at 191 (affirming an employee’s demotion where “he received two

detailed written warning letters, as well as a notice of the pre-demotion conference

outlining the specific grounds for the proposed disciplinary action.”).

      In Mankes v. N.C. State Educ. Assistance Auth., 191 N.C. App. 611, 664 S.E.2d

79, slip op. at 6 (2008) (unpublished), the employee was dismissed for “unacceptable




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                                  Opinion of the Court



personal conduct as well as unsatisfactory performance” in her job. Her dismissal

letter stated the following grounds for dismissal:

             (1)    Not following designated procedures regarding the
                    prohibition of printing and photocopying of borrower
                    computer records, and the resulting[ ] improper use
                    of those hardcopy records.

             (2)    Not working      your   assigned     tickler   accounts
                    accurately.

             (3)    Not making adequate, documented telephone calls
                    to borrowers.

             (4)    Improperly working borrower accounts that have
                    not been assigned to you.

             (5)    Not following designated procedures regarding
                    letter requests for borrowers applying for total and
                    permanent disability discharges.

             (6)    Not following designated procedures regarding the
                    prohibition against the recording of borrower Social
                    Security Numbers in your personal, unauthorized
                    work journal.

Id., slip op. at 6–7. On appeal, the employee argued that the grounds stated in her

dismissal letter were “vague criticisms” and, therefore, were not “sufficiently

particular” for the purposes of N.C.G.S. § 126-35(a) under this Court’s holdings in

Wells and Owen. Id., slip op. at 7–8. This Court concluded, however, that Wells and

Owen were distinguishable from Mankes. Id. With regard to Wells, we noted that

             the only notice the employee had as to the reasons for his
             dismissal were those in the letter; he received no earlier
             written or oral notice of the unacceptable conduct. Second,
             the employee in Wells requested that such specific


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                                   Opinion of the Court



             information be provided, and the state refused to provide
             it. In the case at hand, petitioner was given notice both in
             writing and orally prior to this letter of dismissal, and
             specific instances of the complained-of conduct were
             provided at an earlier meeting.

Id. (citations omitted). With regard to Owen, we noted that

             both [grounds for dismissal in the employee’s dismissal
             letter] made reference to accusations made by “employees”:
             “[E]mployees had complained[,]” “you began to talk with
             employees[,]” “[y]ou have also told employees,” “attempts
             to intimidate employees[,]” etc. This Court noted that “not
             a single allegation specifically named her accuser[,]”
             preventing her from identifying the incidents at issue, and
             therefore from preparing an appropriate defense. There,
             however, the only reasons justifying the employee’s
             dismissal related to her conduct toward other employees;
             the identity of those individuals was therefore a vital piece
             of information. In the case at hand, the reasons given for
             petitioner’s dismissal were her own conduct, specific
             examples of which were given to petitioner by [her
             supervisor].

Id., slip op. at 8 (citations omitted) (emphasis added). Accordingly, we held that the

employee received sufficient notice of the reasons for her dismissal under N.C.G.S. §

126-35(a). Id., slip op. at 8–9.

      Finally, in Follum v. N.C. State Univ., 204 N.C. App. 369, 696 S.E.2d 203, slip

op. at 11–12 (2010) (unpublished), an employee’s dismissal letter stated that the

employee “behaved inappropriately [at a 7 March 2007 meeting,] . . . refused to allow

the participants – including the dean of the school – to collaborate during the

meeting[,] . . . [and was] disrespectful by repeatedly interrupting others, not allowing

attendees to complete their statements and dismissing advice that was offered.” The

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                                   Opinion of the Court



employee contested his dismissal and – relying on this Court’s holding in Wells –

contended his “letter of dismissal did not allege specific acts or omissions” that formed

the basis for his dismissal. Id., slip op. at 10 (quotation marks omitted). On appeal,

we held the employee’s dismissal letter satisfied the notice requirements of N.C.G.S.

§ 126-35(a), in part, because the dismissal letter “identified [the employee’s] conduct

toward a small group of people in attendance on a specific date at a particular

meeting.” Id., slip op. at 12.

      In the present case, some of the stated grounds for Mr. Barron’s dismissal are

more analogous to Leiphart, Nix, Mankes, and Follum than they are to Wells and

Owen. The record shows that Dr. Corriher discussed with Mr. Barron the nature of

all of the allegations against him multiple times and that Mr. Barron participated in

the 29 November meeting and in his pre-dismissal conference. The investigative

status letter given to Mr. Barron stated, in part, that

             [t]he reports of unacceptable conduct resulting in your
             being placed in Investigatory Status with pay are:

             1.    Allegations of inappropriate relationship with a
                   consumer[.]

             2.    Not reporting these allegations to your supervisor in
                   a timely manner.

Mr. Barron’s pre-dismissal notice stated that

             [t]he findings of the investigative team [were] as follows:

             1.    A consumer of housing services (“Consumer”) has
                   made accusations of inappropriate conduct by you.

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                                  Opinion of the Court



                  This accusation of inappropriate conduct included
                  speaking [to] and touching her in an inappropriate
                  manner, promising her living room furniture, [and]
                  communicating with her through text messaging on
                  your personal cell phone.

                  ...

            4.    By your own admission you learned on August 29,
                  2012 from a co-worker that [ ] Consumer was making
                  accusations about your inappropriate personal
                  conduct towards her. Further, you did not report this
                  fact to your [supervisor] until [November] 5, 2012.

                  ...

            6.    Based on text messages you presented to
                  management, you engaged in unprofessional and
                  inappropriate communication with [ ] Consumer.

Mr. Barron’s dismissal letter stated that the grounds for his dismissal were as

follows:

            1. A consumer of housing services made accusations of
               inappropriate conduct by you.

            2. You confirmed you communicated with this consumer
               on your personal cell phone[,] . . . [and] [i]t was
               determined that some of the communications were not
               work related or professional.

            3. That you learned on August 29, 2012 from a co-worker
               that this consumer was making accusations about you
               exhibiting inappropriate personal contact towards her,
               but did not report this to your supervisor until
               [November] 5, 2012.

                 ...

            6. You inappropriately asked this consumer for a picture,
               which was sent, and received by you.

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                                  Opinion of the Court



      Regarding ground 2 in the dismissal letter, it was Mr. Barron who first

reported the text message communications to Dr. Corriher and then delivered them

during the 5 November meeting. Unlike in Wells, he was given numerous forms of

written and oral notice pertaining to the troubling nature of those text messages

before being dismissed; he participated in Eastpointe’s month-and-a-half-long

investigation into, inter alia, the nature of those text messages; and he fully

participated in his pre-dismissal conference, during which all of the grounds that

were to be in the dismissal letter were discussed – and all of which centered on a

single chain of events between Mr. Barron and Consumer. Cf. Leiphart, 80 N.C. App.

at 351, 342 S.E.2d at 923; Follum, slip op. at 11–12. Ground 2, specifically, states

that Mr. Barron “confirmed” he communicated with a consumer on his personal phone

and that “[i]t was determined that some of the communications were not work related

or professional.” Mr. Barron’s pre-dismissal notice further reveals that some of those

communications were “text messages” that Mr. Barron provided himself.           As in

Leiphart, Mankes and Fullum, ground 2 is not based on broad accusations by

numerous employees, as it was in Owen, but rather on determining the

inappropriateness of Mr. Barron’s “own conduct” to which Mr. Barron has admitted.

See Mankes, slip op. at 8; see also Leiphart, 80 N.C. App. at 351, 342 S.E.2d at 923;

Follum, slip op. at 11–12.




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      Although this Court has held previously that the notice requirements of

N.C.G.S. § 126-35(a) are generally “prophylactic” in nature, see Owen, 121 N.C. App.

at 687, 468 S.E.2d at 817, Mr. Barron’s proffered reading of N.C.G.S. § 126-35(a)

would “exalt form over substance[,]” see White v. Weyerhaeuser Co., 167 N.C. App.

658, 667, 606 S.E.2d 389, 396 (2005). In light of the robust defense Mr. Barron has

been able to wage at all points since his dismissal, his full participation in the

investigation, the numerous instances of oral and written notice provided to Mr.

Barron, the isolated nature of the allegation, and given that the language in ground 2

is limited to determining the inappropriate nature of specific conduct admitted to by

Mr. Barron, it would “strain credulity[,]” State v. Locklear, 7 N.C. App. 493, 496, 172

S.E.2d 924, 927 (1970), for this Court to hold that ground 2 was not “described with

sufficient particularity” so that Mr. Barron would “know precisely what acts or

omissions were the basis of his discharge” upon receipt of his dismissal letter. See

Wells, 50 N.C. App. at 393, 274 S.E.2d at 259 (emphasis added); see also Nix, 106 N.C.

App. at 667, 417 S.E.2d at 826; Leiphart, 80 N.C. App. at 350–51, 342 S.E.2d at 922

(“The purpose of [N.C.G.S. §] 126-35 is to provide the employee with a written

statement of the reasons for his discharge so that the employee may effectively appeal

his discharge . . . [and so] the employer [cannot] summarily discharg[e] an employee

and then search[ ] for justifiable reasons for the dismissal.” (emphasis added));

Mankes, slip op. at 8; Follum, slip op. at 11–12. Mr. Barron “was clearly notified of



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                                         Opinion of the Court



the specific act[s] which led to his dismissal . . . [under ground 2, and] [h]e is entitled

to no relief on this basis.” See Leiphart, 80 N.C. App. at 352, 342 S.E.2d at 923.

       Similarly, ground 3 in the dismissal letter states that Mr. Barron “learned on

August 29, 2012 from a co-worker that [a] consumer was making accusations about

[him] exhibiting inappropriate personal contact towards her, but did not report this

to [his] supervisor until [November] 5, 2012.” We find this analogous to some of the

stated grounds for dismissal in Mankes – that the employee was “[n]ot following

designated procedures[.]” Mankes, slip op. at 6–7. Eastpointe had specific, written

procedures for handling any consumer complaints that could not be immediately

resolved; those procedures required formal documentation of the complaint and

reporting it up the chain of command. See supra, footnote 2. Mr. Barron has never

disputed that he became aware on 29 August 2012 of an unresolved complaint by

Consumer regarding his conduct towards her and that he did not report that

complaint to Dr. Corriher, his only direct “supervisor[,]” let alone anyone else, for over

two months.5 For similar reasons stated above, we find that ground 3 in Mr. Barron’s

dismissal letter also provided him notice of “sufficient particularity . . . of the specific




       5  Mr. Barron’s job description in the record expressly states that Dr. Corriher was Mr. Barron’s
only direct supervisor and provides that the role of Eastpointe’s Housing Director was to “provide[ ]
direction in the development of affordable housing for special needs populations . . . [u]nder minimal
supervision of the Chief of Clinical Operations[.]”



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                                         Opinion of the Court



act [or omission] which led to his dismissal” on that ground. See Leiphart, 80 N.C.

App. at 351–52, 342 S.E.2d at 923.6

        For all the foregoing reasons, we believe that the present case is

distinguishable from Wells and Owen and analogous to Leiphart, Nix, Mankes, and

Follum, particularly with respect to grounds 2 and 3 in Mr. Barron’s dismissal letter.

Because Mr. Barron received sufficient notice under N.C.G.S. § 126-35(a) as to those

grounds for his dismissal from Eastpointe, the order of the trial court is reversed.

        REVERSED.

        Judges ELMORE and INMAN concur.




        6 Because we hold that Mr. Barron received sufficient notice of the reasons for his dismissal
under grounds 2 and 3 in the dismissal letter, and we believe those grounds provided Eastpointe with
sufficient just cause to dismiss Mr. Barron, we need not review whether Mr. Barron received sufficient
notice under grounds 1 and 6 in the dismissal letter. See generally 25 N.C.A.C. 1J .0614(8) (defining
“[u]nacceptable [p]ersonal [c]onduct” that establishes just cause for dismissal as “conduct for which no
reasonable person should expect to receive prior warning; . . . the willful violation of known or written
work rules; . . . [or] conduct unbecoming a state employee that is detrimental to state service[.]”).

                                                 - 33 -
