              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1139

                                 Filed: 3 April 2018

Office of Administrative Hearings, No. 16 OSP 12067

TANKITA T. PETERSON, Petitioner,

             v.

CASWELL DEVELOPMENTAL CENTER, DEPT. OF HEALTH & HUMAN
SERVICES, Respondent.


      Appeal by respondent from final decision and award entered 23 June 2017 and

6 July 2017 by Administrative Law Judge Melissa Owens Lassiter in the Office of

Administrative Hearings. Heard in the Court of Appeals 20 March 2018.


      Glenn, Mills, Fisher & Mahoney, P.A., by Daniel N. Mullins, for petitioner.

      Attorney General Joshua H. Stein, by Assistant Attorney General Milind K.
      Dongre, for respondent.


      TYSON, Judge.


      Caswell Developmental Center, North Carolina Department of Health and

Human Services (“Respondent”) appeals from the final decision of the administrative

law judge (“ALJ”), which reversed Respondent’s decision to suspend Tankita Peterson

(“Petitioner”) for five days without pay. We affirm the decision of the ALJ.

                                   I. Background

      Caswell Developmental Center (“Caswell”) is a state-run facility operated by

the North Carolina Department of Health and Human Services. Caswell provides
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care to residents who have disabilities, behavioral challenges, or medical conditions

that require 24-hour care and supervision. Petitioner is a career state employee and

has been employed at Caswell since October 2009. Petitioner was assigned to work

the morning shift from 6:00 a.m. to 2:30 p.m. at the Magnolia Cottage, where five

patients resided.

                 A. Petitioner’s Late Arrivals and Disciplinary Action

        On 2 June 2016, Petitioner overslept to timely report for work. She awoke at

approximately 6:20 a.m., and arrived at work at 7:00 a.m., an hour after her

scheduled start time. On 6 June 2016, Petitioner received a documented counseling

memo for unacceptable personal conduct on 2 June 2016 for her failing to report to

work as scheduled and failing to notify her supervisor of her need to be late prior to

the scheduled start of her shift, in violation of Caswell’s Policy 4.9 Supervisor

Notification of Absence. The memo further noted that violation of Policy 4.9 is an

unexcused absence. Petitioner refused to sign the memo, because she “d[id] not agree

. . . at all.”

        On 27 August 2016, Petitioner again overslept. She was awakened by a phone

call from a colleague at approximately 6:30 a.m., and arrived for work at 7:00 a.m.

Petitioner was issued a notice of pre-disciplinary conference on 5 September 2016,

requesting she attend the pre-disciplinary conference the next day.       The notice

informed Petitioner of the possibility of a suspension without pay due to Petitioner’s



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unacceptable personal conduct of reporting to work late and for failing to notify her

supervisor on 27 August 2016, in violation of Policy 4.9 and Policy 5.1.46 Time and

Attendance.

      Petitioner was given the opportunity to respond to the proposed suspension

without pay at the pre-disciplinary conference on 6 September 2016. In her written

statement, Petitioner acknowledged she had overslept on 27 August 2016, and the

alarm clock, which had failed to wake her up on that day, had previously failed before.

      Petitioner was suspended for five days without pay on 8 September 2016 for

“unacceptable personal conduct” including:

              1) conduct for which no reasonable person should expect to
              receive prior warning, 2) conduct unbecoming a State
              employee that is detrimental for state service and 3) willful
              violation of known or written work rules [i.e., Caswell
              Developmental Center Administrative Policy Manual
              #5.1.46 (Time and Attendance) and Developmental
              Technician Manual #4.9 (Supervisor Notification of
              Absences)]. Specifically, [reporting] to work late and
              fail[ing] to notify a supervisor of [Petitioner’s] need to be
              late from work, according to policy.

Petitioner’s supervisor referenced the previous documented counseling for the same

issue on 6 June 2016, and Petitioner’s in-service training on the violated policies on

22 January 2016 and 6 June 2016.

                                 B. Caswell’s Policies

      Caswell’s Time and Attendance Policy 5.1.46 states it exists to “ensure that

sufficient staff are available to provide the continuous operation of the facility.” The


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policy defines “tardiness” as the “[f]ailure to report to his/her assigned work area

within three (3) minutes of the scheduled time . . . . Any tardiness exceeding 2 hours

will be considered an unscheduled absence.” An “unscheduled absence” is defined as

“[a]bsence from work two or more hours of a scheduled shift . . . which is not approved

by the immediate supervisor . . . in advance.” (Emphasis original).

      Under the procedures of 5.1.46, disciplinary action begins after five

unscheduled absences or five instances of tardiness in reporting to work in a twelve-

month period. Five occurrences triggers documented counseling, a written warning

is issued for the sixth occurrence, a three-day suspension without pay is imposed for

the seventh occurrence, and the eighth occurrence requires dismissal. Prior to any

disciplinary action on unscheduled absences, the supervisor will log absences, meet

with the employee, and initiate documented coaching and policy in-service training.

      Supervisor Notification of Absences Policy 4.9 provides, “[p]ursuant to . . .

Administrative Policy 5.1.46, ‘Time and Attendance’, employees are required to notify

their immediate supervisor or designee of a need to be absent, at a reasonable time,

before the beginning of the assigned work shift.” Failure to conform to this policy

“will be viewed as an unexcused absence, resulting in unacceptable personal conduct

and subject to intervention and disciplinary action as follows; 1) A documented

counseling on the first occurrence[;] 2) A 5-day Disciplinary Suspension Without Pay




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on the second occurrence; and 3) Dismissal on the third and final occurrence.” Policy

4.9 does not address an employee’s tardiness to begin scheduled work.

                                  C. Procedural History

        On 19 December 2016, Petitioner filed a petition for a contested case with the

Office of Administrative Hearings, alleging Respondent had suspended her for five

days without pay without just cause. Petitioner filed a motion for summary judgment

on 31 March 2017 and argued Respondent had improperly applied Policy 4.9 to her,

since Policy 4.9 dealt with absences, because Petitioner was not “absent” as defined

under Policy 5.1.46, but only tardy. The ALJ denied Petitioner’s motion on 19 April

2017.

        The matter was heard before the ALJ on 20 April 2017. In the final decision,

issued 23 June 2017, the ALJ ruled Respondent did not have just cause to suspend

Petitioner for five days without pay. Respondent was ordered to remove Petitioner’s

suspension, to issue a written warning, and to reimburse Petitioner back pay and any

other benefits she would have been entitled to receive. In an order dated 6 July 2017,

Petitioner was also awarded attorney’s fees. Respondent filed timely notice of appeal

on 21 July 2017.

                                     II. Jurisdiction

        An appeal lies with this Court of a final decision of the Office of Administrative

Hearings pursuant to N.C. Gen. Stat. § 7A-29 (2017).



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                                       III. Issues

      Respondent argues it had just cause to suspend Petitioner for five days without

pay, and the ALJ committed legal error in finding no just cause existed for its actions.

Respondent also argues the ALJ’s reasoning in the final decision was arbitrary and

capricious.

                                     IV. Analysis

                                 A. Standard of Review

      The standard of review of a final decision of an agency depends on the alleged

errors. N.C. Gen. Stat. § 150B-51(c) (2017). The Court reviews purported errors of

law de novo, while decisions alleged to be arbitrary and capricious are reviewed under

the whole record standard. Id.

                                     B. Just Cause

      Career state employees are entitled to statutory protections, including the

protection from being discharged, suspended, or demoted without “just cause.” N.C.

Gen. Stat. § 126-35(a) (2017).     This Court established a three-part analysis to

determine whether just cause existed for an employee’s adverse employment action

for unacceptable personal conduct:

              The proper analytical approach is to first determine
              whether the employee engaged in the conduct the employer
              alleges. The second inquiry is whether the employee’s
              conduct falls within one of the categories of unacceptable
              personal conduct provided by the Administrative Code.
              Unacceptable personal conduct does not necessarily


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             establish just cause for all types of discipline. If the
             employee’s act qualifies as a type of unacceptable conduct,
             the tribunal proceeds to the third inquiry: whether that
             misconduct amounted to just cause for the disciplinary
             action taken. Just cause must be determined based “upon
             an examination of the facts and circumstances of each
             individual case.”

Warren v. N.C. Dep’t of Crime Control, 221 N.C. App. 376, 383, 726 S.E.2d 920, 925

(2012) (quoting N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 669, 599

S.E.2d 888, 900 (2004)).

      Here, only the third prong of the analysis is at issue, as the ALJ concluded,

and Petitioner did not appeal, the first two findings that Petitioner had engaged in

the alleged unacceptable personal conduct and that conduct fell within one of the

provided categories.       Respondent argues the ALJ’s finding that the five-day

suspension “did not fit the crime” was legal error because the preponderance of the

evidence supports just cause for the suspension. After review of the record and

decision, we disagree.

      The record evidence indicates Petitioner had eight years of positive

employment history. The Supreme Court of North Carolina has identified past

history as a factor to consider in a just cause determination. See Carroll, 358 N.C. at

670, 599 S.E.2d at 901.

      Evidence was presented that other employees were able to cover the hour

Petitioner was late on 2 June and 27 August 2016, resulting in no negative impact to

the operation of the facility or the care of its residents. Respondent offered testimony

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of the potential harm from tardiness, including the uncertainty surrounding the

maintenance of needs of the residents, the overtime costs, and the slackening of the

organizational structure. We agree these could be general concerns associated with

any absent employee, but the evidence in this case does not support these arguments,

with the exception of overtime pay for the staff coverage retained until Petitioner

arrived at 7:00 a.m.

       Finally, the ALJ found and concluded the application of Policy 4.9

inappropriate, and issuing Petitioner’s suspension under Policy 4.9 “essentially

rendered the ‘tardiness’ definition in Policy 5.1.46 meaningless.” Policy 4.9 makes no

mention of arriving or starting late for scheduled work or tardiness, nor provides a

definition, but does reference and is “pursuant to,” Policy 5.1.46, which defines

tardiness as being between three minutes and two hours late for scheduled work.

Any tardiness after two hours is defined as an “unscheduled absence.”

      In accordance with contract law, when a term is defined in one location of the

document, it is to be given that same definition throughout, unless context demands

otherwise. State v. Philip Morris USA Inc., 363 N.C. 623, 632, 685 S.E.2d 85, 91

(2009) (citation omitted). Policy 4.9 consistently refers to absences, and the need to

contact a supervisor before the start of the shift if the employee will be absent.

Applying the definitions as provided in Policy 5.1.46, Petitioner was never “absent”

from work, but merely tardy.



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      Viewing the record evidence for the two occasions at issue, the ALJ could

properly find the preponderance of the evidence tends to weigh in Petitioner’s favor.

The ALJ did not commit legal error in finding no just cause for Petitioner’s

suspension.    While Respondent is concerned about the negative effects of

unannounced and late arrivals for scheduled shifts in the operation of its facility and

required staff presence to address the needs of its residents, these concerns are

appropriately dealt with in consistently written policies.

                             C. Arbitrary and Capricious

      Under whole record review, the reviewing court must “determine whether

there is substantial evidence to justify the agency’s decision.” Carroll, 358 N.C. at

660, 599 S.E.2d at 895 (citation omitted). The Respondent argues the ALJ’s finding

that there was no negative impact on the facility or its residents on the days

Petitioner was tardy in arrival and reporting was arbitrary in capricious, under the

precedent of North Carolina A & T University v. Kimber, 49 N.C. App. 46, 270 S.E.2d

492 (1980). We disagree.

      The employee in Kimber had been dismissed for three reasons: she had been

absent without prior approval, she was habitually late to work, and she falsified her

time sheets to make it appear she arrived promptly. Id. at 50, 270 S.E.2d at 494. The

State Personnel Commission reinstated the employee, finding the punishment was

too severe since the University “failed to prove that [the employee’s] absences



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hindered the operation of the University’s work.” Id. at 51, 270 S.E.2d at 495 (internal

quotation marks omitted). The superior court reviewed the Commission’s decision

and reversed it, concluding

             the Commission has said that it is unfair and unreasonable
             to dismiss an employee unless it can be proved that work
             was not completed or performed because of an absence, or
             unless it can be proved that no one knows of the
             whereabouts of the employee. Such considerations had no
             logical or rational relation to the issues before the
             Commission and to the extent the Commission weighed
             these considerations in its decision it acted arbitrarily and
             capriciously[.]

Id. (emphasis omitted). This Court affirmed the superior court’s ruling, finding “[t]he

Commission’s action reinstating Ms. Kimber was in excess of its statutory authority.

The Commission has no policy under which it can excuse improper conduct by an

employee[.]” Id. at 50, 270 S.E.2d at 494 (citations omitted).

      The controlling statutes and jurisprudence of this State have been amended

and changed since this Court affirmed the decision in Kimber. Whereas a finding an

employee failed to perform his or her duties, including intentionally falsifying

records, was enough for just cause for sanctions as cited in Kimber, such a finding

does not control the result here. Compare Brooks, Comr. of Labor v. Best, 45 N.C.

App. 540, 542, 263 S.E.2d 362, 364 (1980) (“Defendant failed to perform her duties

properly on numerous occasions. Plaintiff’s action in removing defendant from her

position . . . was justified.”), with Carroll, 358 N.C. at 669, 599 S.E.2d at 901 (“not



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every violation of law gives rise to ‘just cause’ for employee discipline”) (emphasis

original) (citation omitted).

      Instead, “[j]ust cause is determined upon examination of all the facts,

circumstances, and equities of a case, [and] consideration of additional factors

shedding light on the employee’s conduct[.]” Harris v. N.C. Dep’t of Pub. Safety, __

N.C. App. __, __, 798 S.E.2d 127, 137 (citing Bulloch v. N.C. Dep’t of Crime Control &

Pub. Safety, 223 N.C. App. 1, 12, 732 S.E.2d 373, 381 (2012)), aff’d per curium, __

N.C. __, 808 S.E.2d 142 (2017).

      After review of the whole record, it is clear the ALJ examined all the “facts,

circumstances, and equities” present in the case. Id. Even if the ALJ may have

reached a different result within the range of authorized actions, this Court may not

substitute our judgment for that of the ALJ, as long as the ALJ’s conclusion is lawful

and is supported by substantial evidence. N.C. Dep’t of Pub. Safety v. Ledford, __ N.C.

App. __, __, 786 S.E.2d 50, 64 (2016) (citation omitted). The record before us contains

substantial evidence to support the ALJ’s decision.

      Under N.C. Gen. Stat. § 126-34.02(a)(3) (2017),

             the ALJ has express statutory authority to “[d]irect other
             suitable action” upon a finding that just cause does not
             exist for the particular action taken by the agency. Under
             the ALJ’s de novo review, the authority to “[d]irect other
             suitable action” includes the authority to impose a less
             severe sanction as “relief.”




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Harris, __ N.C. App. at __, 798 S.E.2d at 138 (citing N.C. Gen. Stat. § 126-34.02(a)(3)).

This “other suitable action” can be a sanction within the range of authorized

disciplinary alternatives under 25 N.C.A.C. 1J .0604(a). Id. at __, 798 S.E.2d at 138-

39.

      The ALJ acted within her authority “by determining the agency failed to meet

its burden to show just cause existed to warrant Petitioner’s [suspension] for

unacceptable personal conduct.” Id. at __, 798 S.E.2d at 138. The imposed written

warning was within the authorized disciplinary alternatives. 25 N.C.A.C. 1J .0604(a)

(2017).

                                     V. Conclusion

      “As the sole fact-finder, the ALJ has both the duty and prerogative to

determine the credibility of the witnesses, the weight and sufficiency of their

testimony, to draw inferences from the facts, and to sift and appraise conflicting and

circumstantial evidence.” Harris, __ N.C. App. at __, 798 S.E.2d at 137 (citation

omitted). After weighing all the evidence before her, the ALJ concluded Respondent

did not have just cause to suspend Petitioner without pay for five days for tardiness.

The record contains substantial evidence, including the conflicting definitions,

interpretations, and applications of Respondent’s policies, to support this conclusion.

The final decision of the ALJ is affirmed. It is so ordered.

      AFFIRMED.



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Judges BRYANT and DILLON concur.




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