An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA14-1014

                                    Filed: 5 May 2015

Union County, No. 13-CVS-00273

JERINDA D. STATON, Petitioner,

              v.

UNION COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.


       Appeal by Petitioner from order entered 9 July 2014 by Judge Tonya M.

Wallace in Union County Superior Court and order entered 22 May 2014 by Judge

W. David Lee in Union County Superior Court. Heard in the Court of Appeals 18

February 2015.


       Meagan I. Kiser, Cranfill Sumner & Hartzog LLP, for the respondent-appellee.

       John S. Arrowood, James McElroy & Diehl, P.A., for the petitioner-appellant.


       HUNTER, JR., Robert N., Judge.


       Jerinda D. Staton (“Petitioner”) appeals from the order denying her Motion to

Present Additional Evidence entered on 9 July 2014 and the order affirming her

termination from Union County Department of Social Services (“DSS”) entered on 22

May 2014.
                   STATON V. UNION CNTY. DEP’T OF SOCIAL SERVICES

                                     Opinion of the Court



                             I. Factual and Procedural History

       In April 2011, Petitioner was terminated from her position as an income

maintenance worker within the Children and Family Medicaid section of DSS. Prior

to her termination, Petitioner had been employed by DSS for over seventeen years in

various positions.     As an income maintenance worker, her job responsibilities

included “processing, determining and/or re-determining applicant/client eligibility

for Medicaid, including interviewing clients, completing initial applications, [and]

verifying the information obtained.”

       For the majority of her time as a DSS employee, Petitioner received positive

reviews and even won an “Outstanding Caseworker Award” from the North Carolina

Chapter of National Eligibility Workers Association. In 2007, however, Petitioner

began receiving negative reviews from her new supervisor, Mary Beth Gaddy

(“Gaddy”). As a result, Petitioner was placed on a “Performance Improvement Plan.”

Petitioner believed Gaddy was targeting her, and she both verbally complained and

filed official complaints to this effect.

       Petitioner’s work performance continued to decline, and in June 2010, she

received a five-day suspension for “unacceptable personal conduct” when she signed

on to another employee’s computer to reopen a client’s benefits for food and nutrition.

Petitioner’s unacceptable conduct constituted both unauthorized access and a breach




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                                         Opinion of the Court



of client confidentiality. Petitioner was warned that this violation in itself could be

grounds for dismissal, and that further disciplinary actions could result in dismissal.

      On 11 August 2010, Chris Bisbee, a caseworker for DSS, received a Medicaid

benefits application from C.B.1 Bisbee questioned C.B.’s eligibility for Medicaid

benefits based on C.B.’s private insurance plan and his suspicion that C.B. was

married. On 10 September 2010, Bisbee referred C.B.’s application for benefits to

Iola Crook (“Crook”), a program integrity investigator, who initiated an investigation.

On 30 September 2010, Crook made a notation to the statewide online verification

system (“OLV”) under the Enterprise Program Integrity Control System (“EPICS”)

tab indicating an investigation of C.B.’s file was ongoing. The OLV system alerts any

caseworks who check it of alerts or issues in place for a particular client. After

conducting an investigation, Crook found C.B. was ineligible for Medicaid benefits,

and relayed this information to Bisbee on 30 September 2010. C.B. received notice

that she was denied Medicaid benefits “because [she] ha[d] not provided the

information needed to establish eligibility.” On 1 October 2010, Crook opened an

integrity claim against C.B. and updated C.B.’s OLV file to reflect that there was an

investigation referral in place.

      DSS has several policies in place to prevent improper approval. As dictated in

the employee manual, all caseworkers are expected to view the files of each applicant.



      1   We use the pseudonym “C.B.” to protect the applicant’s identity.

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                                   Opinion of the Court



If the physical file cannot be located, intra-agency communication and prevention

mandates of the Medicaid Manual require caseworkers to send out an agency e-mail

or contact a supervisor. DSS reiterates these policies to its workers in unit meetings

and by email; it also recommends that caseworkers ask processing assistants for aid

in finding missing files. Further, all employees are required to complete a full OLV

inquiry, which includes examining the EPICS tab. The EPICS tab lights up to

indicate if there are any red flags for the applicant or client.

      On 28 December 2010, C.B. filed an application for Medicaid with Petitioner.

DSS policy dictated that Petitioner process this claim within forty-five calendar days.

Because of the prior investigation, Crook had possession of C.B.’s file during the

entire duration of the approval process. On 11 February 2011, Petitioner approved

C.B. for Medicaid benefits without ever viewing her physical file or requesting it.

Although Petitioner contends she did check the EPICS tab in OLV and saw no

indication her case was undergoing an integrity investigation, the integrity referral

had been in place since September 2010. Therefore, if Petitioner had checked the

EPICS tab, she would have been aware of the ongoing investigation.

      On 10 March 2011, a caseworker brought Crook paperwork which indicated

Petitioner had approved C.B.’s application for Medicaid. Crook wrote a memorandum

explaining the incident and sent it to Petitioner and the caseworker who brought the

file to her. On 11 March 2011, Crook determined C.B. was not eligible for benefits



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                                   Opinion of the Court



and instructed a caseworker to terminate any further Medicaid benefits to C.B.

Subsequently, both Stephanie Leach, Crook’s supervisor, and Gaddy, Petitioner’s

supervisor, were notified of the improper approval, but not told at the time of

Petitioner’s involvement. Rae Alepa (“Alepa”), Gaddy’s supervisor, was also notified.

On 11 March 2011, Alepa and Crook filed a memorandum detailing ten violations

Petitioner made during the approval process of C.B.’s application. Alepa notified

Director Dontae Latson (“Latson”) and HR Manager Suzanne Moose (“Moose) of the

information contained in the memorandum. The 11 March 2011 memorandum was

also provided to Gaddy.

      After receiving the aforementioned information, Latson scheduled Petitioner

to appear at a pre-disciplinary conference. On 15 March 2011, Petitioner received a

letter notifying her of the pre-disciplinary conference and the allegations against her.

During the pre-disciplinary conference, which took place later that day, Petitioner

claimed she believed the manual gave her authority to approve C.B.’s application. On

16 March 2011, in a letter to Latson, Petitioner explained she believed she was in

possession of C.B.’s file, but at some point without her knowledge, the file had

disappeared from her office. She claimed not to be aware of the procedures in place

that required employees to send out an intra-agency email or consult with a

supervisor in the case of a missing file.




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                 STATON V. UNION CNTY. DEP’T OF SOCIAL SERVICES

                                   Opinion of the Court



      After consulting, through Moose, with the Office of State Personnel over what

disciplinary action he should take on Petitioner’s matter, Latson met with Petitioner,

Alepa, and Moose and announced he was terminating Petitioner from employment

due to her unacceptable personal conduct. He reiterated this in a letter given to

Petitioner at the time of the meeting, which detailed that Petitioner was being

terminated for “authorizing benefits without following the correct protocol,” which

was considered agency error. The letter also explained that Petitioner “failed two

prior disciplinary actions in June 2010[,]” demonstrating “a pattern of unacceptable

personal conduct.”

      On 31 March 2011, Petitioner appealed to the Director of the Union County

Health Department, where the recommendation for her dismissal was upheld.

Following this decision, Latson issued a final determination dismissing Petitioner.

On 18 May 2011, Petitioner appealed to the Office of Administrative Hearings. After

hearing the evidence, Administrative Law Judge (“ALJ”) Melissa Owens Lassiter

made numerous findings of fact, including the following:

             62. A preponderance of the evidence established that
             Respondent had instructed its workers, in unit meetings
             and by emails, to send out an agency wide email to other
             workers when a caseworker could not locate a file, and ask
             if anyone has that client's file. . . . As a backup,
             caseworkers should also ask their processing assistants to
             assist them with locating the client's file. . . . Respondent’s
             witnesses acknowledged that this policy is a unit policy,
             but is not written . . . . Ms. Crook, Ms. Gaddy, and Director
             Latson all gave consistent explanations supporting the


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       STATON V. UNION CNTY. DEP’T OF SOCIAL SERVICES

                      Opinion of the Court



existence of the proper protocol to follow when staff cannot
locate a case file[.]

....

65. Petitioner claimed that when she looked at C.B[.]’s case
file in the OLV on December 28, 2010, the OLV summary
indicated, “No program integrity claims with balance.”
When she opened the EPICS tab, “nothing came back.” . . .
She also contended that before she approved C.B. for
benefits on February 11, 2011, she looked at the EPICS tab
in the OLV on February 11, 2011. The system again read,
“no program integrity claim were balanced,” meaning there
was no information in the system. []

66. Petitioner’s contention [Finding of Fact 65] is
inconsistent with the preponderance of the evidence in this
case. First, Ms. Crook explained, using Respondent's
Exhibit 18, how Petitioner would and should have seen
Crook's notation regarding an open fraud investigation of
C.B. when Petitioner opened the EPICS tab of the OLV on
December 28, 2010. Respondent is [sic] Exhibit 18 was
printed from the OLV on October 18, 2011, and supported
Crook's explanation. That document showed Crook's
notation that she discovered the program integrity claim .
. . on October 1, 2011, and opened a fraud investigation into
that claim on October 6, 2010 [sic]. Second, on March 16,
2011, Ms. Gaddy opened the EPICS tab in the OLV for C.B.
The system showed there had been a program integrity
referral made in early September of 2010, and that
program integrity had found that she had committed
fraud[.]

67. . . . Petitioner failed to produce any documentary
evidence supporting her claim that there was no
information or notation regarding the open fraud
investigation into C.B’s application for benefits, when
Petitioner looked in C.B.’s case file on either December 28,
2010, or on February 11, 2011 when Petitioner approved
C.B.'s benefits application.


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                      STATON V. UNION CNTY. DEP’T OF SOCIAL SERVICES

                                         Opinion of the Court




               ....

               70. . . . Section C of the Family and Children’s Medicaid MA
               3210 policy . . . requires the caseworker “verify each
               element necessary to determine eligibility in the
               aid/program category.” . . . Section D of MA 3210 also
               requires third party verification of a client’s information to
               determine eligibility on certain factors, including factors
               such as whether a Medicaid deductible has been met, and
               proof of earned and unearned income. In this case, C.B.'s
               household composition, marital status, and current health
               insurance provider were items that needed verifying to
               conduct a proper determination of C.B.’s eligibility for
               benefits. Since Petitioner did [sic]2 locate and review C.B.’s
               case file before she approved C.B. for Medicaid benefits, she
               failed to follow the requirements of this policy.

               71. Reviewing C.B.’s case file would have alerted Petitioner
               that Respondent had previously denied benefits to C.B. for
               failing to provide verification of the same items in C.B.’s
               December 28, 2010 application . . . that justified denial of
               C.B.’s December 28, 2010 benefits application.


       The ALJ made the following conclusions of law:

               8. Respondent met its burden of proof by establishing by a
               preponderance of the evidence that it had just cause to
               terminate Petitioner’s employment. A preponderance of
               the evidence showed that Petitioner engaged in a willful
               pattern of failing to follow agency rules, and that such
               actions constituted unacceptable personal conduct. . . .
               Petitioner engaged in intentional violation of known work


       2  The finding that Petitioner “did locate and review C.B.’s case file before she approved C.B.
for Medicaid benefits” appears to be an drafting error. The ALJ findings of fact nos. 34-38 establish
that from 28 December 2010, when C.B. first met with Petitioner to file an application for benefits,
until 11 February 2011, when Petitioner approved C.B.’s benefits, Crook maintained possession of
C.B.’s case file. During that time, Petitioner never asked Crook for C.B.’s case file, nor did she take
possession of it.

                                                 -8-
                    STATON V. UNION CNTY. DEP’T OF SOCIAL SERVICES

                                   Opinion of the Court



             rules and protocol for Medicaid case, which actions
             constituted unacceptable personal conduct for which no
             prior warning is required. Petitioner's conduct constituted
             a violation of DSS’ known work rules and policies[.]

             9. Respondent proved by a preponderance of the evidence
             that Petitioner approved an unqualified Medicaid
             applicant for benefits, and Respondent suffered an "agency
             error” due to Petitioner’s approval of such benefits; thus,
             becoming unable to recoup losses from the erroneous
             benefits paid. Petitioner’s actions constituted conduct
             unbecoming a state employee that is detrimental to state
             service.

             ....

             11. Based on the foregoing, Respondent satisfied its burden
             of proof and established just cause for dismissing
             Petitioner from employment.


      Accordingly, based on its findings of fact and conclusions of law, the ALJ

determined that “Respondent’s decision to determinate Petitioner’s employment

should be AFFIRMED.” On 19 December 2012, DSS adopted the ALJ’s order as its

own final decision (“Decision”) and affirmed Petitioner’s termination for unacceptable

conduct.

      On 30 January 2013, Petitioner filed a petition in superior court requesting

judicial review of DSS’s final agency decision, pursuant to N.C. Gen. Stat. § 150B-43.

Petitioner also filed, pursuant to N.C. Gen. Stat. § 150B-43, a Motion to Submit

Additional Evidence, seeking to admit affidavits of numerous current and former

employees of Respondent.       On 9 January 2014, Petitioner’s Motion to Submit


                                          -9-
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                                   Opinion of the Court



Additional Evidence was denied.        On 22 May 2014, based on its findings and

conclusions, the superior court affirmed the Decision and the termination of

Petitioner’s employment. Petitioner gave timely notice of appeal from the superior

court’s orders.

                                      II.     Jurisdiction

      Under N.C. Gen Stat. § 7A-27(b), an appeal of right directly to the Court of

Appeals is created “from any final judgment of a superior court . . . including any final

judgment entered upon review of a decision of an administrative agency[.]” N.C. Gen.

Stat. § 7A-27(b) (2012).

                               III.     Standards of Review

      “When the trial court exercises judicial review over an agency’s final decision,

it acts in the capacity of an appellate court.” N.C. Dep’t of Env’t & Natural Res. v.

Carroll, 358 N.C. 649, 699, 559 S.E.2d 888, 896 (2004) (citations omitted). “[T]he

substantive nature of each assignment of error dictates the standard of review.” In re

Denial of NC IDEA’s Refund of Sales, 196 N.C. App. 426, 432, 675 S.E.2d 88, 94 (2009)

(citation omitted). The superior court’s standard of review of an agency decision is

governed by N.C. Gen. Stat. § 150B-51(b):

             The court reviewing the 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:



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                                   Opinion of the Court



             (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 admissible 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.

N.C. Gen. Stat. § 150B-51(b) (2013).

      The trial court reviews matters arising under N.C. Gen. Stat. § 150B-51(b)(1)-

(4), de novo. See N.C. Gen. Stat. § 150B-51(c); see also Carroll, 358 N.C. at 659, 559

S.E.2d at 895. When reviewing matters under N.C. Gen. Stat. § 150B-51(b)(5)-(6),

the court conducts a fact-based review under the whole record test. See N.C. Gen

Stat. § 150-51(c); see also In re Denial of NC IDEA’s Refund, 196 N.C. App. at 433,

675 S.E.2d at 94.

       “Under a de novo review, the superior court considers the matter anew and

freely substitutes its own judgment for the agency’s judgment.” Mann Media, Inc. v.

Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (quotation

marks, brackets, and citation omitted). When conducting a review de novo, this Court

presumes the trial court made its decision in good faith and in accordance with the

law. Richardson v. N.C. Dep’t of Pub. Instruction Licensure Section, 199 N.C. App.

219, 223-24, 681 S.E.2d 479, 483 (2009).




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                 STATON V. UNION CNTY. DEP’T OF SOCIAL SERVICES

                                  Opinion of the Court



       “Under the whole record test, the reviewing court must examine all competent

evidence to determine if there is substantial evidence to support the administrative

agency’s findings and conclusions.” Henderson v. N.C. Dep’t of Human Res., 91 N.C.

App. 527, 530, 372 S.E.2d 887, 889 (1988) (citation omitted). “The reviewing court

must not consider only that evidence which supports the agency’s result; it must also

take into account contradictory evidence or evidence from which conflicting

inferences could be drawn. Id. at 530-31, 372 S.E.2d 890. The whole record test “does

not permit the reviewing court to substitute its judgment for the agency’s as between

two reasonably conflicting views[.]” Lackey v. N.C. Dep’t of Human Res., 306 N.C.

231, 238, 293 S.E.2d 171, 176 (1982). The reviewing court is required to “determine

whether the administrative decision had a rational basis in the evidence.”

Henderson, 91 N.C. App. at 531, 372 S.E.2d at 890 (citation omitted). If “substantial

competent evidence is found which would support the agency ruling, the ruling must

stand.” Little v. N.C. State Bd. of Dental Exam’rs, 64 N.C. App. 67, 69, 306 S.E.2d

534, 536 (1983) (quotation marks and citation omitted).

      This Court reviews a superior court order entered upon a review of an

administrative agency for errors of law only. See Shackleford-Moten v. Lenoir Cnty.

Dep't of Soc. Serv., 155 N.C. App. 568, 572, 573 S.E.2d 767, 770 (2002). Therefore,

this Court’s review involves a two-fold task: “(1) determining whether the trial court

exercised the appropriate scope of review and, if appropriate, (2) deciding whether



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                  STATON V. UNION CNTY. DEP’T OF SOCIAL SERVICES

                                   Opinion of the Court



the court did so properly.” Amanini v. N.C. Dep’t of Human Res., 114 N.C. App. 668,

675, 443 S.E.2d 114, 118-19 (1994) (citations omitted). “This Court’s task when

reviewing a superior court’s order reviewing an administrative decision is simply to

‘consider those grounds for reversal or modification raised by the petitioner before the

superior court and properly assigned as error and argued on appeal to this Court.’”

Bernold v. Bd. of Governors of Univ. of N. Carolina, 200 N.C. App. 295, 298, 683

S.E.2d 428, 430 (2009) (quoting Shackleford-Moten, 155 N.C. App. at 572, 573 S.E.2d

at 770.citations omitted).

                                   IV.     Analysis

      Petitioner contends the trial court committed the following errors: (1) issuing

an order affirming Petitioner’s just cause termination that failed to provide for

meaningful appellate review; (2) affirming Petitioner’s termination without

conducting a proper just cause analysis; (3) determining that errors of process in

Petitioner’s pre-disciplinary conference did not prejudice Petitioner’s substantial

rights; (4) finding sufficient competent and material evidence to support the agency’s

even though certain facts and conclusions were erroneous; (5) denying Petitioner’s

motion to submit additional evidence; and (6) determining the agency’s decision was

not arbitrary or capricious or an abuse of discretion. We disagree.




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                    STATON V. UNION CNTY. DEP’T OF SOCIAL SERVICES

                                   Opinion of the Court



A.     Trial Court Order

      Petitioner contends the trial court committed error by issuing an order

affirming Petitioner’s just cause termination that failed to provide for meaningful

appellate review.

      When determining whether a public employer had just cause to discipline its

employee, the trial court must engage in two separate inquires: “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 (quoting Sanders v. Parker Drilling Co., 911 F.2d 191, 194

(9th Cir. 1990)). The first of these inquires, whether the employee engaged in the

alleged conduct, is a fact-based inquiry and must be reviewed under the whole record

test. See Carroll, 358 N.C. at 665, 599 S.E.2d at 898; see also Kea v. Dep’t of Health

and Human Servs., 153 N.C. App. 595, 606, 570 S.E.2d 919, 926 (2002); N.C. Gen.

Stat. § 150B-51(c). The latter inquiry, whether the employee’s conduct constitutes

just cause for the disciplinary action taken, is a question of law and must be reviewed

de novo. See Carroll, 358 N.C. at 666, 599 S.E.2d at 898; see also N.C. Gen. Stat. §

150B-51(c).

      In its order, the trial court conducted the whole record test for fact-based issues

and a de novo review for errors of law. The order held:

                    The Court, in accordance with N.C.G.S. 150B-51(b)
              has reviewed the Decision, and has considered the whole


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          STATON V. UNION CNTY. DEP’T OF SOCIAL SERVICES

                           Opinion of the Court



      record in order to determine whether there is substantial
      admissible evidence in the record to support the findings of
      fact set forth in the Decision and whether the conclusions
      of law are supported by the findings of fact; and further, in
      order to determine whether the Decision was arbitrary,
      capricious, or an abuse of discretion.

             The Court has also conducted a de novo review to
      determine whether substantial rights of the Petitioner may
      have been prejudiced because the findings, inferences,
      conclusions, or decisions were in violation of constitutional
      provisions, in excess of statutory authority or jurisdiction
      of the Administrative Law Judge or the Respondent, were
      made upon unlawful procedure, or affected by other error
      of law.

The order provided the following additional insights:

             The Court has considered the arguments and
      contentions of counsel and has determined upon review of
      the entire record that although certain findings of fact and
      conclusions set forth in the Decision were erroneous, in
      view of the entire record, there is ample and sufficient
      competent, material and substantial evidence admissible .
      . . not in conflict with the erroneous findings of fact, to
      support the essential findings and essential conclusions of
      law supporting the determination set forth in the Decision;
      and further, upon review of the whole record, the Court
      determines that the Decision was not arbitrary, capricious,
      or an abuse of discretion.

             The Court has determined, upon a de novo review to
      determine whether Petitioner’s substantial rights may
      have been prejudiced because the findings, inferences,
      conclusions, or decisions . . . were made upon unlawful
      procedure[] or affected by other error of law that there are
      errors of law in the record and that there was a departure
      from lawfully-described procedure by the Respondent with
      respect to the Petitioner’s pre-disciplinary conference.
      Although this Court in no way condones or approves either
      these errors or Respondent’s deviation from lawful

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                                   Opinion of the Court



             procedure, the Court has nonetheless determined that
             these errors of law and departure from procedure did not
             prejudice substantial rights of the Petitioner related to her
             employment termination. . . .

      Evidence of a mere recitation of the standards of review used is sufficient to

support a finding that the trial court judge applied the proper standard. See Kea, 153

N.C. App. at 603, 570 S.E.2d at 924. The trial court judge need only demonstrate a

finding of “substantial competent evidence” in the record to support the findings. See

Little, 64 N.C. App. at 69, 306 S.E.2d at 536. Further, for de novo review, this Court

presumes the trial court made its decision in good faith and in accordance with the

law. See Richardson, 199 N.C. App. at 223-24, 681 S.E.2d at 483.

      Here, the inclusion of the language about erroneous findings of fact, errors,

and deviation from lawful procedure unnecessarily confounds what would otherwise

be a clear decision. Although this Court does not condone the use of this language,

which serves no purpose other than to cast doubt on the trial judge’s ruling, this order,

nonetheless, does not prevent meaningful appellate review. As long as this Court can

assess “how [the] standard should have been applied to the particular facts of [the]

case[,]” there is no need for remand. See Carroll, 358 N.C. at 666, 599 S.E.2d at 898

(emphasis in original). The language in question does not prevent this Court from

determining how the standard should have been applied to the analysis of

termination for just cause. The trial judge clearly states he conducted a whole record

review, which is appropriate for the first requisite inquiry of the just cause analysis,


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                                   Opinion of the Court



and a de novo review, which is appropriate for latter inquiry of the just cause analysis.

Therefore, the trial court’s affirmation of the Decision is based on the record evidence

and appropriate application of the law, including the two just cause inquiries.

Accordingly, this argument is without merit.

B.    Proper Just Cause Analysis

      Petitioner contends the trial court erred in affirming Petitioner’s termination

because it failed to conduct the proper just cause analysis. The basis of Petitioner’s

contention is that the order is devoid of any indication that the trial court conducted

the appropriate analysis.

      Under the whole record test, the reviewing court must determine whether

Petitioner engaged in the conduct alleged by DSS, and whether the conduct is of the

type required by statute.     By statute, “just cause” for the dismissal of a State

Employee, at the time of the alleged incidents may only be established on the basis

of “unsatisfactory job performance” or “unacceptable personal conduct.” N.C. Gen.

Stat. § 126-35(b) (2011 )(repealed 2012). Although not defined by statute, the North

Carolina Administrative Code has defined “unacceptable personal conduct” to

include, in pertinent part, “the willful violation of known or written work rules” and

“conduct unbecoming a state employee that is detrimental to state service.” 25 N.C.

Admin. Code 1J.0614(i)(8)(d)-(e) (2011).




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                                  Opinion of the Court



      Here, the ALJ found Petitioner’s conduct included the “willful violation of

known or written work rules.” The ALJ concluded: “Petitioner engaged in intentional

violation of known work rules and protocol for Medicaid case, which actions

constituted unacceptable personal conduct for which no prior warning is required.

Petitioner’s conduct constituted a violation of DSS’s known work rules and policies[.]”

The ALJ found that Petitioner engaged in unacceptable conduct when she authorized

C.B.’s benefits without first checking the EPICS tab in OLV or obtaining C.B.’s file.

For, on 16 March 2011, when Gaddy checked the EPICS tab in the OLV for applicant

C.B., she noted a program integrity referral had been made in early September 2010.

Based on her discovery, Gaddy prepared a memorandum for Alepa explaining that

Petitioner “did not click on the EPICS screen to open to view comments. If she had,

she would have discovered that a fraud referral had been made and investigation was

in progress.” Furthermore, the ALJ held “Petitioner engaged in a willful pattern of

failing to follow agency rules, and that such actions constituted unacceptable personal

conduct.” Upon Petitioner’s termination, Latson provided her with a letter, wherein

he stated “[i]t is apparent you have developed a pattern of unacceptable personal

conduct.”

      The ALJ also concluded that “Petitioner’s actions constituted conduct

unbecoming a state employee that is detrimental to state service.” By approving an

unqualified Medicaid applicant for benefits, the ALJ found that DSS suffered an



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                                  Opinion of the Court



“agency error” and was “unable to recoup losses from the erroneous benefits paid.”

For the aforementioned reasons, we find the trial court’s order affirms the underlying

analysis that Petitioner engaged in “unacceptable personal conduct,” as required by

statute and alleged by DSS.

      Next, under a de novo review, the reviewing court must determine whether

Petitioner’s conduct amounted to just cause for termination based “upon an

examination of the facts and circumstances” of this case. See Carroll, 358 N.C. at

669, 599 S.E.2d at 900 (citation omitted). Here, the ALJ concluded that DSS was

unable to recoup losses from the Medicaid benefits that Petitioner erroneously

provided to C.B.     In his 16 March 2011 letter to Petitioner, Latson stated the

following: “I am troubled that I did not hear you take responsibility for your poor

judgment of authorizing benefits without following the correct protocol. . . . [Y]our

actions are unacceptable and diminish the community’s confidence in the services we

provide.” The ALJ ultimately concluded that Respondent “satisfied its burden of

proof and established just cause for dismissing Petitioner from employment.”

Accordingly, after a de novo review of the Decision, which adopted the decision of the

ALJ, the trial court judge found no significant errors of law. Therefore, we find the

trial court’s order affirms the underlying analysis that Petitioner’s conduct amounted

to just cause for termination.




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      As the trial court’s order affirms the underlying analysis for both just cause

inquires, we find this argument is without merit.

C.    Pre-Disciplinary Conference

      Petitioner contends the trial court erred in determining that errors of process

in her pre-disciplinary conference did not prejudice Petitioner’s substantial rights. In

issues concerning unlawful process, the reviewing court must review the case de novo.

N.C. Gen. Stat. § 150B-51(b)(3).

      Pursuant to the North Carolina Administrative Code, an employer need not

demonstrate any record of prior disciplinary action for a just cause termination. 25

N.C. Admin. Code 1J.0608(a). However, once cause for termination is found, the

employer must complete two procedural steps before disciplinary action is taken in

order to satisfy the employee’s due process rights: (1) there must be a pre-dismissal

conference between the employee and the person recommending the dismissal, and

(2) there must be written notification provided to the employee stating the reason for

dismissal and outlining the employee’s right to appeal. See 5 N.C. Admin. Code §

1J.0608(b), (c); see also N.C. Gen. Stat. § 126-35(a); Kea, 153 N.C. App. at 603-04, 570

S.E.2d at 925.

      Petitioner argues her substantial rights were violated as a result of DSS’s

procedural errors in the pre-disciplinary conference. Alepa, Gaddy, and Moose were

all present at the pre-disciplinary conference on 15 March 2011, in addition to the



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                                 Opinion of the Court



person recommending dismissal (Latson), which constitutes a violation of the North

Carolina Administrative Code.       See N.C. Administrative Code 01I.2308(4).

Additionally, Alepa, Gaddy, and Moose engaged in questioning Petitioner during the

meeting and met with Latson privately after Petitioner was excused. These actions

of DSS also constitute violations of the North Carolina Administrative Code.

      However, the trial court’s order addresses DSS’s improper deviation from the

Administrative Code. The trial court’s order clearly expresses that the court

conducted a de novo review with respect to the procedure of Petitioner’s pre-

disciplinary conference. The language of the order explains: “[a]lthough this Court

in no way condones or approves either these errors or Respondent’s deviation from

lawful procedure, the Court has nonetheless determined that these errors of law and

departure from procedure did not prejudice substantial rights of the Petitioner

related to her employment termination.”           Here, Petitioner received written

notification dated 15 March 2011 of the pre-disciplinary conference, in compliance

with the notice and due process procedural requirements contained in the North

Carolina General Statutes and the North Carolina Administrative Code.           The

notification outlined Petitioner’s specific conduct necessitating the hearing.

Additionally, Petitioner was provided with an opportunity to respond to the proposed

disciplinary action, her termination, before it occurred.       Following the pre-

disciplinary conference, but prior to her dismissal, Petitioner was provided with a



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                                        Opinion of the Court



letter detailing the reasons for dismissal as well as her appellate rights. Petitioner

also had the opportunity to have her contested case hearing before the ALJ.

Therefore, as we agree that DSS’s departure from procedure did not prejudice

substantial rights of Petitioner related to her employment termination, we affirm the

trial court’s order as to this issue.

D.     Sufficient Material Evidence Supporting Agency Determination

       Petitioner next contends the trial court erred in finding there was sufficient

competent and material evidence to support the agency’s determination, despite the

presence of “erroneous” facts and conclusions referenced in its order. Petitioner

contends the language of the trial court’s order that “certain findings of fact and

conclusions set forth in the Decision were erroneous” causes uncertainty as to

whether the eighteen findings of fact and three conclusions of law that Petitioner

excepted to were among the “erroneous facts and conclusions” referenced by the trial

court. As this is a fact-based inquiry, the reviewing court conducts a whole record

test. See Carroll, 358 N.C. at 665, 599 S.E.2d at 898; see also Kea, 153 N.C. App. at

606, 570 S.E.2d at 926; N.C. Gen Stat. § 150B-51(c).

       In its order, the trial court acknowledges “erroneous” findings of fact and

conclusions of law, but concludes “there is ample and sufficient competent, material,

and substantial evidence . . . not in conflict with the erroneous findings of fact, to

support the essential findings and essential conclusions of law supporting the



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determination set forth in the Decision[.]” Here, there is a plethora of sufficient

competent and material evidence supporting the Decision. The record reflects that

Petitioner approved an unqualified applicant for Medicaid without first reviewing her

file, as the file was in the possession of another employee conducting a fraud

investigation on the applicant. Petitioner neglected protocol when she knew or should

have known the file was missing and did not send an intra-agency e-mail searching

for the file or seek assistance from a supervisor. In addition to not taking efforts to

locate the applicant’s file, a preponderance of the evidence shows Petitioner failed to

follow protocol by neglecting to use the computer systems in place to prevent this type

of improper approval. Therefore, this Court finds, upon a whole record review, there

was substantial and competent evidence in the record to support the agency’s

termination and we affirm the trial court’s order as to this issue.

E.    Denial of Motion to Submit Additional Evidence

      The Petitioner also argues that the trial court judge erred in denying

Petitioner’s motion to submit additional evidence pursuant to its 9 July 2014 order.

A denial of a motion to submit additional evidence may only be overturned if abuse

of discretion can be demonstrated. Ritter v. Dep’t of Human Res., 118 N.C. App. 564,

567, 455 S.E.2d 901, 903 (1995).

      Pursuant to N.C. Gen. Stat. § 150B-49, a party who files a petition in the

superior court may apply to the court to submit additional evidence. A court may



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                                   Opinion of the Court



remand a case to obtain additional evidence only if: (1) the evidence sought is

material evidence and not merely cumulative; and (2) the evidence cannot reasonably

have been presented at the administrative hearing. N.C. Gen. Stat. § 150B-49.

Evidence is considered cumulative if it is the same type of evidence that can be found

in the record and does not provide any new revelations and thus would “probably not

affect the outcome.” See Andrews v. Fulcher Tire Sales & Serv., 120 N.C. App. 602,

606, 463 S.E.2d 425, 428 (1995).

      Petitioner first sought to introduce additional evidence in the form of witnesses

to speak toward practices and proper procedure. Petitioner contends the evidence

would provide new perspective from employees who left DSS before the incident.

Although these witnesses might add a new perspective, there is already an

abundance of evidence detailing practices and procedures in the record. Petitioner

also sought to introduce witnesses to provide interpretations of rules that govern the

agency. However, this evidence also already exists in the record. The trial court’s

denial of the motion was based upon introducing evidence that provided no new

revelations and therefore was cumulative. See Andrews, 120 N.C. App. at 606, 364

S.E.2d at 428. Accordingly, this Court holds that the trial court did not abuse its

discretion by denying Petitioner’s motion to submit additional evidence. Therefore,

we affirm the trial court’s denial of Petitioner’s motion.




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F.    Arbitrary and Capricious Decision or an Abuse of Discretion

      Finally, Petitioner contends the trial court erred in determining the agency’s

decision was not arbitrary or capricious or an abuse of discretion. When reviewing a

decision for arbitrariness, capriciousness, or an abuse of discretion, the reviewing

court conducts the whole record test. See N.C. Gen Stat. §§ 150B-51(b)(6), (c); see also

N.C. Gen Stat. § 150B-51(c).

      The trial court is not allowed to override a discretionary agency decision

exercised in good faith and in accordance with law. Lewis v. N.C. Dep’t of Human

Res., 92 N.C. App. 737, 740, 375 S.E.2d 712, 714 (1989). Further, decisions may only

be reversed “as arbitrary or capricious if they are ‘patently in bad faith’ . . . or

‘whimsical’ in the sense that ‘they indicate a lack of fair and careful consideration’ or

‘fail to indicate any course of reasoning and the exercise of judgment.’”          See id.

(quoting Comm’r of Ins. v. Rate Bureau, 300 N.C. 381, 420, 269 S.E.2d 547, 573

(1980)); see also Ward v. Inscoe, 166 N.C. App. 586, 595, 603 S.E.2d 393, 399 (2004).

      In its order, the trial court held that “upon review of the entire record[] . . . the

Court determines that the Decision was not arbitrary [nor] capricious[.]”            Here,

despite Petitioner’s argument to the contrary, there is substantial competent

evidence in the record supporting the conclusion that Petitioner’s termination came

about as a result of fair and careful consideration. The record demonstrates Latson

was informed prior to the hearing of the ten alleged violations committed by



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Petitioner. There is also evidence Latson considered Petitioner’s past behavior in

making his decision. Furthermore, Latson did not make the decision to terminate

Petitioner until after the conference, and he made this decision without the

recommendation of others. Latson determined Petitioner approved C.B.’s Medicaid

benefits in violation of policy and law. Latson concluded that Petitioner’s actions

constituted intentional and willful insubordination. Moreover, Latson contacted the

Office of State Personnel for guidance on the proper procedure. The record, as a

whole, reflects that Latson gave considerable thought and consideration to his

decision to terminate Petitioner. Therefore, this Court agrees the agency’s decision

was not arbitrary or capricious and we affirm the trial court’s order as to this issue.

                                       V. Conclusion

      For the aforementioned reasons, this Court affirms the 1 January and 22 May

2014 orders of the trial court.



      AFFIRMED.

      Judges STROUD and DILLON.

      Report per Rule 30(e).




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