              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-340

                                 Filed: 2 May 2017

Office of Administrative Hearings, No. 15 OSP 05867

RANDALL COLE, Petitioner,

             v.

NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Respondent.


      Appeal by Respondent from final decision entered 9 February 2016 by

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

Hearings. Heard in the Court of Appeals 17 October 2016.


      John C. Hunter for Petitioner.

      Attorney General Joshua H. Stein, by Assistant Attorney General Tamika L.
      Henderson, for Respondent.


      McGEE, Chief Judge.


      The North Carolina Department of Public Safety (“Respondent”) appeals from

a final decision of the Office of Administrative Hearings (“OAH”) concluding as a

matter of law that Respondent lacked just cause to dismiss Randall Cole (“Petitioner”)

from his position as a laundry plant manager, and ordering that he be retroactively

reinstated but demoted.      We conclude Respondent had just cause to dismiss

Petitioner and, therefore, reverse the final decision of OAH.

                                   I. Background
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                                    Opinion of the Court



      Petitioner worked for Respondent as an assistant director of the Craggy

Laundry facility from November 2003 until his promotion to the position of plant

manager in December 2010. Upon his promotion to plant manager, a change of

command audit (“the audit”) was performed by Respondent. The audit is performed

each time a new plant manager is hired, and serves as a “report of the condition of

that particular facility under the prior management.”          The audit revealed that

improvement was needed in some areas of the laundry facility, and “significant

improvement” was needed in others. Petitioner’s direct supervisor, Ronald Young

(“Young”), discussed the results of the audit with Petitioner at a 3 February 2011

meeting. Due to the magnitude of the problems, “Petitioner was told that a follow-up

audit would be conducted to verify corrective action was implemented.”

      Young sent an email to Petitioner on 1 March 2011 reminding him that the

problems that were found in the audit needed to be rectified. Although the problems

had not been corrected by that time, Petitioner responded to Young and indicated

that all of the issues had been corrected. The promised follow-up audit was conducted

on 7 June 2011, and found that some of the issues identified in the audit had not been

corrected.   Due to these deficiencies, an unsatisfactory rating was entered into

Petitioner’s employee appraisal, known as the appraisal process (“TAP”) for July

2011. An “employee action plan” was issued to Petitioner on 24 August 2011, that

directed him to correct “all violations set forth in [the audit].”



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                                        Opinion of the Court



       Sometime in November 2011, Young documented in Petitioner’s TAP that

Petitioner had abated all of the audit violations identified in the 24 August 2011

employee action plan. The TAP stated in the “performance log” that “[a]ll violations

noted in [the audit] have abated.”             Despite this notation in Petitioner’s TAP,

Petitioner in fact had not abated all of the issues in the audit, and was issued a

written warning for unsatisfactory job performance on 15 December 2011 (the “first

written warning”) for “not satisfactorily implementing or correcting actions

prescribed on [the] action plan” issued 24 August 2011. The first written warning

alerted Petitioner that he might “be subject to further discipline up to and including

dismissal” if the problems were not corrected.

       As a part of Petitioner’s promotion to plant manager, Petitioner was required

to become certified as a Laundry Manager under the Association of Linen

Management Program.              Petitioner was aware of this requirement, and the

requirement was documented in his work plans in 2010, 2011, and 2012. Petitioner

was also issued an action plan on 21 December 2012 that gave him until 31 January

2013 to obtain the certification. Despite the deadline being extended at least twice,

Petitioner failed to obtain the required certification, and was issued another written

warning on 20 March 2013 (the “second written warning”).1 The second written


       1 The second written warning was issued for “grossly inefficient job performance” rather than
unsatisfactory job performance. While Petitioner’s conduct that led to the second written warning did
not constitute grossly inefficient job performance, as the ALJ noted, “no disciplinary action shall be



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                                          Opinion of the Court



warning notified Petitioner that if he failed to achieve his certification by 20 April

2013,2 he would “receive further disciplinary action up to and including dismissal.”

        As a part of Petitioner’s job responsibilities as plant manager, he was required

to reconcile receipts and send the information and invoices to a central office in

Raleigh for payment. Petitioner was not fulfilling this job requirement and, in July

2013, Young reached out to Petitioner to inquire why the receipts and invoices were

not being properly forwarded. Petitioner told Young that he would complete this task;

however, he never did.           As a result, Petitioner received a written warning for

unsatisfactory job performance related to his failure to perform this task, as well as

his failure to correct issues found in an audit conducted 15 August 2013 (the “third

written warning”).         The third written warning advised Petitioner that he was

expected to take “immediate corrective measures” or be subjected to “further

disciplinary action up to and including dismissal.” Shortly after the third written

warning was issued, a semi-annual safety inspection of the Craggy Laundry Facility

was conducted and several violations were found, including failures to maintain

safety reports and properly train staff on safety programs.

        Karen Brown, the Director of Correction Enterprises and Young’s direct

supervisor, “felt disciplinary action was warranted because of Plaintiff’s continued



invalid solely because the disciplinary action is labeled incorrectly.” 25 NCAC 01J .0604(c). Like the
ALJ, we treat the second written warning as an instance of unsatisfactory job performance.
        2 Petitioner did, eventually, receive the certification, but did so by July 2013, months after the

20 April 2013 deadline had passed.

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                                  Opinion of the Court



unsatisfactory job performance,” and a pre-disciplinary conference was held with

Petitioner. Following this conference, Petitioner was dismissed from his position for

unsatisfactory job performance.       Following his dismissal, Petitioner utilized

Respondent’s internal appeal procedure, and a final agency decision affirmed his

dismissal. Petitioner filed a petition for a contested case hearing with OAH on 3 April

2014, alleging he was dismissed from his position of employment without just cause.

Petitioner voluntarily dismissed his petition 144 days later, on 25 August 2014. More

than eleven months later, on 12 August 2015, Petitioner filed a second petition for a

contested case hearing.

      Respondent filed a motion to dismiss the second petition, arguing that N.C.

Gen. Stat. § 1A-1, Rule 41(a)(1) is inapplicable to OAH proceedings and, therefore, a

petition for a contested case hearing may not be voluntarily dismissed and refiled

within one year. The Administrative Law Judge (“ALJ”) assigned to the case ruled

that “Rule 41 of the N.C. Rules of Civil Procedure applies to contested cases heard by

[OAH],” and denied Respondent’s motion. The ALJ held a hearing on the merits of

Petitioner’s claims.   Following that hearing, the ALJ issued a final decision

concluding as a matter of law that “[a]lthough just cause existed for terminating

Petitioner, Respondent failed to meet its burden of proof that it did not act

erroneously or fail to use proper procedure” in terminating Petitioner from his

employment “because Petitioner did not have two active warnings at the time he was



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                                    Opinion of the Court



disciplined and terminated.” According to the final decision, Respondent lacked just

cause to terminate Petitioner but had “sufficiently proven that it had just cause to

demote Petitioner based on his unsatisfactory job performance.” Therefore, the ALJ

ordered Petitioner retroactively reinstated but demoted to the position of assistant

manager. Respondent appeals.

                                       II. Analysis

      Respondent argues the ALJ erred by: (1) denying Respondent’s motion to

dismiss and concluding that N.C.G.S. § 1A-1, Rule 41(a)(1) applies to proceedings

before OAH; (2) entering several findings of fact that were not supported by

substantial evidence in the record; (3) concluding that Respondent lacked just cause

to dismiss Petitioner for unsatisfactory job performance; and (4) imposing a lesser

form of discipline rather than remanding the case to the employing agency to impose

a new form of discipline.

       A. Applicability of N.C.G.S. § 1A-1, Rule 41(a)(1) to OAH Proceedings

      Respondent first argues the trial court erred in denying its motion to dismiss

Petitioner’s second contested case petition. We review this argument de novo. Dion

v. Batten, ___ N.C. App. ___, ___, 790 S.E.2d 844, 851 (2016) (noting that this Court

reviews issues of statutory interpretation de novo).       Respondent contends that

N.C.G.S. § 1A-1, Rule 41(a)(1), that permits a voluntarily dismissed claim to be refiled




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                                   Opinion of the Court



within one year of such dismissal, does not apply to cases before OAH. We disagree.

N.C.G.S. § 1A-1, Rule 41(a)(1) provides, in relevant part:

             Subject to the provisions of Rule 23(c) and of any statute of
             this State, an action or any claim therein may be dismissed
             by the plaintiff without order of court (i) by filing a notice
             of dismissal at any time before the plaintiff rests his
             case[.] . . . Unless otherwise stated in the notice of
             dismissal or stipulation, the dismissal is without
             prejudice[.] . . . If an action commenced within the time
             prescribed therefor, or any claim therein, is dismissed
             without prejudice under this subsection, a new action
             based on the same claim may be commenced within one
             year after such dismissal unless a stipulation filed under
             (ii) of this subsection shall specify a shorter time.

N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (2015). We begin with the assumption that the

Rules of Civil Procedure apply to contested case hearings as they do in the trial courts,

unless a statute or administrative rule dictates otherwise: “The Rules of Civil

Procedure as contained in G.S. 1A-1 . . . shall apply in contested cases in the Office of

Administrative Hearings (OAH) unless another specific statute or rule of the Office

of Administrative Hearings provides otherwise.”           26 NCAC 03 .0101(a) (2015)

(emphasis added). Cases from this Court have interpreted N.C.G.S. § 1A-1, Rule

41(b) as applying to contested case hearings before OAH. See Scott v. N.C. Dep't of

Crime Control & Pub. Safety, 222 N.C. App. 125, 730 S.E.2d 806 (2012); Lincoln v.

N.C. Dep’t of Health & Human Servs., 172 N.C. App 567, 616 S.E.2d 622 (2005).

      Respondent contends that N.C.G.S. § 1A-1, Rule 41(a)(1) is inapplicable to

contested case proceedings because it permits “an action” to be dismissed and refiled


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                                         Opinion of the Court



by a plaintiff within one year. Since a contested case petition is not “an action” as

defined in our General Statutes,3 Respondent reasons, N.C.G.S. § 1A-1, Rule 41(a)(1)

cannot apply to contested case hearings. This assertion directly contradicts both

Scott and Lincoln, each of which applied N.C. Gen. Stat. § 1A-1, Rule 41(b) to

contested case hearings despite that portion of the rule also referring to the dismissal

of “an action.” Scott, 222 N.C. App. at 131 n.7, 730 S.E.2d at 810 n.7; Lincoln, 172

N.C. App. at 572-73, 616 S.E.2d at 626.

       Our General Assembly has empowered OAH with “such judicial powers as may

be reasonably necessary as an incident to the accomplishment of the purposes for

which” OAH was created and, by statute, allowed the Chief Administrative Law

Judge of OAH to “adopt rules to implement the conferred powers and duties.” N.C.

Gen. Stat. §§ 7A-750, 7A-751(a) (2015). Under this authority, OAH promulgated

26 NCAC 03 .0101(a), which provides that the rules of civil procedure, including

N.C.G.S. § 1A-1, Rule 41(a)(1) “shall apply” in contested cases in the Office of

Administrative Hearings “unless another specific statute or rule provides otherwise.”

26 NCAC 03 .0101(a). Respondent’s interpretation would render any rule of civil

procedure that refers to “an action” as inapplicable to contested case hearings before

OAH, which uses the term “contested case.” Given 26 NCAC 03 .0101(a)’s expansive



       3 N.C. Gen. Stat. § 1-2 provides: “An action is an ordinary proceeding in a court of justice, by
which a party prosecutes another party for the enforcement or protection of a right, the redress or
prevention of a wrong, or the punishment or prevention of a public offense.”

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                                   Opinion of the Court



command that the rules of civil procedure “shall apply” in contested case proceedings

unless another rule or statute directs otherwise, and previous interpretation of

N.C.G.S. § 1A-1, Rule 41(b) in Scott and Lincoln, we reject Respondent’s reading of

N.C.G.S. § 1A-1, Rule 41(a)(1).

      Respondent also contends that N.C. Gen. Stat. § 126-34.02 mandates OAH

issue a final decision within 180 days “from the commencement of the case” and

thereby renders Rule 41(a)(1) inapplicable. We disagree. N.C.G.S. § 126-34.02, as

relevant to this argument, provides:

             Once a final agency decision has been issued in accordance
             with G.S. 126-34.01, an applicant for State employment, a
             State employee, or former State employee may file a
             contested case in the Office of Administrative Hearings
             under Article 3 of Chapter 150B of the General Statutes.
             The contested case must be filed within 30 days of receipt
             of the final agency decision. Except for cases of
             extraordinary cause shown, the Office of Administrative
             Hearings shall hear and issue a final decision in
             accordance with G.S. 150B-34 within 180 days from the
             commencement of the case.

N.C. Gen. Stat. § 126-34.02(a) (2015). The 180-day mandate in N.C.G.S. § 126-34.02

does not conflict with a petitioner’s ability to voluntarily dismiss a case and refile it

within one year as permitted by N.C.G.S. § 1A-1, Rule 41(a)(1). Our Supreme Court

has held that “[t]he effect of a judgment of voluntary dismissal [pursuant to N.C.G.S.

§ 1A-1, Rule 41(a)] is to leave the plaintiff exactly where he or she was before the

action was commenced.” Brisson v. Santoriello, 351 N.C. 589, 593, 528 S.E.2d 568,

570 (2000) (citations, quotation marks, and brackets omitted). “If the action was

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                                   Opinion of the Court



originally commenced within the period of the applicable statute of limitations, it may

be recommenced within one year after the dismissal, even though the base period

may have expired in the interim.” Id. at 394, 528 S.E.2d at 571 (citations omitted).

      Once a voluntary dismissal has been taken pursuant to N.C.G.S. § 1A-1, Rule

41(a)(1), the petitioner has “terminated the action, leaving nothing in dispute[.]”

Teague v. Randolph Surgical Assocs., P.A., 129 N.C. App. 766, 773, 501 S.E.2d 382,

387 (1998). In the present case, the original action was commenced on 3 April 2014

when Petitioner filed a petition for contested case hearing. The petition was filed by

Petitioner within thirty days of his receipt of the final agency decision in accordance

with N.C.G.S. § 126-34.02. Before any decision was reached by OAH, Petitioner

dismissed his claim without prejudice pursuant to N.C.G.S. § 1A-1, Rule 41(a)(1). At

that time, the original contested case petition had been “terminated,” leaving nothing

in dispute and nothing for OAH to rule on within 180 days. See Brisson, 351 N.C. at

593, 528 S.E.2d at 570 (noting that “[a] Rule 41(a) dismissal strips the trial court of

authority to enter further orders in the case, except” pursuant to Rule 41(d) in

instances not relevant here). Petitioner’s voluntary dismissal left him “exactly where

he . . . was before [the contested case petition] was commenced,” and allowed

Petitioner to recommence his case “within one year after the dismissal, even though

the base period . . . expired in the interim.” Id. (citations omitted).




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                                  Opinion of the Court



      Pursuant to 26 NCAC 03 .0101(a), the North Carolina Rules of Civil Procedure

“shall apply” in contested cases before OAH unless a “specific” statute or regulation

provides otherwise. In the present case, having found no specific statute or rule that

provides to the contrary, we hold N.C.G.S. § 1A-1, Rule 41(a)(1) applies to contested

cases before OAH, and the ALJ therefore properly denied Respondent’s motion to

dismiss.

                           B. Challenged Findings of Fact

      Respondent challenges findings of fact 6, 25, 27, 36, 39, and 41 made by the

ALJ. All findings of fact that are not challenged are deemed to be conclusively

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

Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). After carefully

reviewing the record and the ALJ’s final decision, we conclude that the challenged

findings are either not material to our decision in this case, or are more properly

labeled conclusions of law. The unchallenged findings are sufficient to show that

Respondent had just cause to dismiss Petitioner for unsatisfactory job performance.

See Blackburn, ___ N.C. App. ___, 784 S.E.2d at 519 (concluding that “it is not

necessary for us to assess the evidentiary support for all of the findings challenged

by” the appealing party). Therefore, we examine whether the unchallenged findings

of fact supported Respondent’s dismissal of Petitioner.

      C. Just Cause to Dismiss Petitioner for Unsatisfactory Job Performance



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                                 Opinion of the Court



      Respondent argues the ALJ erred in concluding it lacked just cause to

terminate Petitioner for unsatisfactory job performance. Respondent also contends

that all of Petitioner’s written warnings were “active” at the time of Petitioner’s

termination and, in the alternative, the plain language of 25 NCAC 01J .0605(b) does

not mandate that the prior disciplinary actions be “active” to count toward the

number needed before dismissal is permitted under the North Carolina

Administrative Code (“the Administrative Code”). We review de novo whether just

cause existed for Petitioner’s termination. See N.C. Dep't of Env’t & Natural Res. v.

Carroll, 358 N.C. 649, 666-67, 599 S.E.2d 888, 898 (2004).

      A career state employee subject to the North Carolina Human Resources Act

may only be “discharged, suspended, or demoted for disciplinary reasons” upon a

showing of “just cause.”   N.C. Gen. Stat. § 126-35(a) (2015).     Pursuant to the

Administrative Code, “just cause” for the dismissal, suspension, or demotion of a

career state employee may be established only on a showing of “unsatisfactory job

performance, including grossly inefficient job performance,” or “unacceptable

personal conduct.” 25 NCAC 01J .0604 (2015).

      Unsatisfactory job performance is defined as “work-related performance that

fails to satisfactorily meet job requirements as specified in the relevant job

description, work plan, or as directed by the management of the work unit or agency.”




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                                  Opinion of the Court



25 NCAC 01J .0614(9) (2015). The Administrative Code sets out the requirements

for a career state employee to be dismissed for unsatisfactory job performance:

             In order to be dismissed for a current incident of
             unsatisfactory job performance an employee must first
             receive at least two prior disciplinary actions: First, one or
             more written warnings followed by a warning or other
             disciplinary action which notifies the employee that failure
             to make the required performance improvements may
             result in dismissal.

25 NCAC 01J .0605(b) (2015). “Statutory interpretation properly begins with an

examination of the plain words of the statute.” Correll v. Division of Social Services,

332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992) (citation omitted). “When the language

of a statute is clear and unambiguous, there is no room for judicial construction, and

the courts must give it its plain and definite meaning.” Lemons v. Old Hickory

Council, 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988) (citations omitted); see also

State v. Wiggins, 272 N.C. 147, 153, 158 S.E.2d 37, 42 (1967) (“It is elementary that

in the construction of a statute words are to be given their plain and ordinary

meaning unless the context, or the history of the statute, requires otherwise.”

(citation omitted)).

      We are cognizant that this case requires us to interpret the meaning of an

administrative regulation, not a statute. However, “[o]ur Supreme Court has applied

the rules of statutory construction to administrative regulations as well as statutes.”

Kyle v. Holston Group, 188 N.C. App. 686, 692, 656 S.E.2d 667, 672 (2008) (citations



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                                   Opinion of the Court



omitted). Therefore, we employ the above rules of statutory construction to the

administrative regulation at issue.

      Considering and applying the plain and unambiguous text of 25 NCAC 01J

.0605(b) appears to present a straightforward answer to this case.                  The

Administrative Code provision requires that, in order to be dismissed for a current

incident of unsatisfactory job performance, an employee must have received two prior

disciplinary actions, including a written warning and a warning or notification that

failure to make the required improvements may result in dismissal. See 25 NCAC

01J .0605(b). In the present case, Petitioner received his first written warning on 15

December 2011, and a second written warning on 20 March 2013. Both written

warnings advised Petitioner that failure to make the required performance

improvements – correcting the problems found in the audit and receiving a laundry

manager certification, respectively – might result in further disciplinary action,

including his dismissal.

      Petitioner then received a third written warning on 24 September 2013,

because he failed to correct deficiencies found in the 15 August 2013 audit. The third

written warning, like the first and second, warned Petitioner that “if his

[u]nsatisfactory [j]ob [p]erformance continued, it might result in further disciplinary

action up to and including dismissal[.]” Petitioner was ultimately terminated due to

his failure to correct the deficiencies found in the third written warning, which served



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                                  Opinion of the Court



as the “current incident of unsatisfactory job performance.” 25 NCAC 01J .0605(b).

Therefore, the requirements of 25 NCAC 01J .0605(b) were met, and Respondent had

just cause to terminate Petitioner for unacceptable personal conduct.

      Petitioner maintained, and the ALJ ultimately concluded, that this application

of 25 NCAC 01J .0605(b) to the facts of the present case was complicated by the

existence of 25 NCAC 01J .0614(6). Found in the definitional section of the relevant

subchapter of the administrative code, 25 NCAC 01J .0614(6) provides:

             As used in this Subchapter:

             ....

             (6)    Inactive Disciplinary Action means any disciplinary
                    action issued after October 1, 1995 is deemed
                    inactive for the purpose of this Section if:

                    (a)    the manager or supervisor notes in the
                           employee's personnel file that the reason for
                           the disciplinary action has been resolved or
                           corrected;

                    (b)    the purpose for a performance-based
                           disciplinary action has been achieved, as
                           evidenced by a summary performance rating
                           of level 3 (Good) or other official designation
                           of performance at an acceptable level or better
                           and at least a level 3 or better in the
                           performance area cited in the warning or
                           disciplinary action, following the disciplinary
                           warning or action; or

                    (c)    18 months have passed since the warning or
                           disciplinary action, the employee does not
                           have another active warning or disciplinary


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                                         Opinion of the Court



                                action which occurred within the last 18
                                months.

25 NCAC 01J .0604(6) (2015) (emphases added). The ALJ concluded as a matter of

law that, because the definitional section defined “inactive disciplinary action,” it is

“only logical” that the two prior disciplinary actions required by 25 NCAC 01J

.0605(b) must be active. “To hold to the contrary,” the ALJ concluded, “means the

entire process of finding a prior discipline inactive has no applicability or effect; i.e.,

a meaningless exercise in futility.”4

        We cannot subscribe to this reading of 25 NCAC 01J .0604(6)’s effect on 25

NCAC 01J .0605(b). By its terms, 25 NCAC 01J .0604(6) states that the definition of

“Inactive Disciplinary Action” is operable only “[a]s used in” Subchapter J of Title 25

of the North Carolina Administrative Code. 25 NCAC 01J .0604(6) does not mandate

that courts and ALJs make a finding that a prior disciplinary action is inactive, but

only instructs that when the term “inactive disciplinary action” is used in

Subchapter J of Title 25 of the Administrative Code, it has the meaning given to it by

25 NCAC 01J .0604(6). While 25 NCAC 01J .0605(b) is located in Subchapter J of



        4 The ALJ also noted that the North Carolina State Human Resources Manual (“the Manual”)
advises that “[a] disciplinary action . . . becomes inactive, i.e. cannot be counted towards the number
of prior disciplinary actions that must be received before further action can be taken . . . when” any of
the three circumstances outlined in 25 NCAC 01J .0604(6)(a)-(c) have been satisfied. However, as the
ALJ recognized, the Manual has not been promulgated as a formal rule, and is not controlling. This
Court has recognized that properly promulgated statutes and administrative regulations – and not a
manual – are controlling in similar circumstances. See Estate of Joyner v. N.C. Dep’t of Health &
Human Servs., 214 N.C. App. 278, 288-89, 715 S.E.2d 498, 506 (2011) (holding that the North Carolina
Adult Medicaid Manual “merely explains the definitions that currently exist” in statutes, rules, and
regulations).

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Title 25, it does not use the phrase “inactive disciplinary action,” nor require that a

disciplinary action be “active” – or not “inactive” – before it can be used as a “prior

disciplinary action[]” to justify a career state employee’s dismissal for unsatisfactory

job performance. See 25 NCAC 01J .0605(b).

      In order to affirm the ALJ’s reading of the Administrative Code, we would need

to insert a requirement into 25 NCAC 01J .0605(b) that the “two prior disciplinary

actions” not be “inactive.” Such a requirement is clearly not contained in 25 NCAC

01J .0605(b). While the code drafters certainly could have required that the written

warnings not be “inactive” in order for them to count towards the “two prior

disciplinary actions” needed before a career state employee can be dismissed, they did

not. We will not read a new requirement – that a warning not be “inactive” – into the

code section at issue when such a requirement is not contained in the administrative

regulation’s clear and ambiguous text. See State v. Singletary, ___ N.C. App. ___, ___,

786 S.E.2d 712, 725 (2016) (rejecting a litigant’s “extratextual interpretation” of a

statute when such a “textual substitution” would be “contrary to the clear statutory

mandate”).

      A plain reading of 25 NCAC 01J .0605(b) requires that a career state employee

must have received “at least two prior disciplinary actions” before being subject to

dismissal for a third disciplinary action. In the present case, it is not contested that

Petitioner had received two disciplinary actions prior to the “current incident” which



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                                  Opinion of the Court



led to his dismissal. Each of the three written warnings advised Petitioner that he

was subject to further discipline, up to and including dismissal from employment, if

the deficiencies were not corrected. This met the requirements of 25 NCAC 01J

.0605(b), and Respondent therefore had just cause to dismiss Petitioner from his

position as plant manager.

      The ALJ declined to reach the holding we reach today, reasoning that it would

leave 25 NCAC 01J .0614(6)’s definition of inactive disciplinary action “meaningless.”

While the term inactive disciplinary action is currently inoperable because it is not

used in Subchapter J of Title 25 of the Administrative Code, this does not foreclose

future amendments to that section of the Administrative Code to give use to the term.

We decline to make that amendment through judicial interpretation, and will not

read a requirement into an administrative regulation that it plainly does not contain

in order to make use of an otherwise inoperable definitional term. Having found the

requirements of 25 NCAC 01J .0605(b) met, we hold that Respondent had just cause

to dismiss Petitioner for unsatisfactory job performance, and the ALJ erred in

reversing Respondent’s dismissal. We therefore reverse the final decision of OAH.

      REVERSED.

      Judges DIETZ and TYSON concur.




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