              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-884

                              Filed: 6 November 2018

Office of Administrative Hearings, No. 06 OSP 10331

TERESSA B. ROUSE, PETITIONER

             v.

FORSYTH COUNTY DEPARTMENT OF SOCIAL SERVICES, RESPONDENT.


      Appeal by respondent from final decision entered 18 April 2017 by

Administrative Law Judge J. Randall May in the Office of Administrative Hearings.

Heard in the Court of Appeals 20 March 2018.


      Elliot Morgan Parsonage, PLLC, by Benjamin P. Winikoff, for petitioner-
      appellee.

      Office of Forsyth County Attorney, by Assistant County Attorney Gloria L.
      Woods, for respondent-appellant.


      BRYANT, Judge.


      Where the record provided substantial evidence to support the trial court’s

findings of fact and the conclusions of law, we affirm the Administrative Law Judge’s

(ALJ) final decision.   Where the ALJ lacked authority to award back pay and

attorney’s fees, we vacate the portion of the final decision to award back pay and

attorney’s fees.

      Petitioner Teressa B. Rouse was employed by respondent Forsyth County

Department of Social Services. She began her employment on 21 January 1997. In
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2001, she was promoted to the position of Social Worker. By 2011, she had been

promoted to a Senior Social Worker and began working in the respondent’s Family

and Children’s Division After Hours Unit. As a Senior Social Worker, petitioner’s

duties included receiving and screening reports for abuse, neglect, and dependency.

Since 2000, she had consistently received review ratings that her work “exceeded

expectations.”   And prior to the event that gave rise to the underlying action,

“[p]etitioner had no prior disciplinary action in her record.” During her nineteen

years of employment, there is no indication that respondent ever accused petitioner

of failing to make a report. In her most recent employee evaluation, petitioner’s

supervisor wrote that petitioner had a “strong knowledge base” and a “grasp of

afterhours protocols and guidelines.”

      Part of respondent’s protocols called for social workers to utilize computer-

generated “CPS reports” created by the State to guide a social worker through a

“decision tree” to recommend if the information received should be “screened in” for

an investigation or “screened out” if no investigation was required.      The State

provided training on how to generate the reports and protocols and directed that

every report that was “screened out ha[d] second and third levels of review to make

sure that the screening was accurate.” In addition to the State-required screen in

and screen out options, respondent instituted a third option—“supportive

counseling.” The protocol for “supportive counseling” was not reduced to writing, and



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respondent provided no formal training on the procedure. Some social workers called

supportive counseling “a ‘usual practice’ of not making a report if there is no abuse,

neglect, or dependency. . . . Other workers called it the ‘after hours protocol’ when a

social worker decide[d] not to document a call in any way.”

              Victor Isley, Division Director for [respondent’s] Family
              and Children Services, testified that the county chose to
              implement this practice, because they “don’t want to be off
              base with their screen out percentages” by including
              “general inquiry calls” in the CPS online assessment tools.
              . . . This is because the percent of cases “screened out” is
              collected and shared with the State; having every call put
              in to a CPS report would “skew” their data.

(emphasis added).    However, respondent provided no formal training on how to

distinguish a general inquiry from a non-general inquiry, and no second or third level

of review was made following a determination that a call was a non-general inquiry

call.

        On 20 June 2018, petitioner was working an after-hours shift when she was

assigned a walk-in appointment made by a homeless man (the father) seeking

temporary housing for his twelve year old son (the son). Petitioner engaged the father

about potential family members and natural supports with whom the son could stay.

The man stated that he had tried to communicate with the son’s mother (the mother)

but communication between them was difficult. Petitioner allowed the father to use

her phone to contact the mother. During the ensuing conversation father and mother

began to argue before petitioner interjected, introduced herself, and explained to the


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mother that the father and the son had come to respondent seeking a temporary

residence for the son.

      The mother became irate complaining about the father and listing several

reasons why she did not want her son. Petitioner asked the mother for a specific

reason why the son could not stay with her. As petitioner explained the foster care

process, which the mother said she didn’t want on her record, she then blurted out,

“Oh, yeah. He molested my daughters.” Petitioner immediately followed up with

questions she had been trained to ask: “Who is he?” “My son,” the mother responded.

“Are you telling me that he molested your daughters?” “I didn’t say that,” the mother

responded. “Well, did you call law enforcement? Did you make a report?” “No, I

didn’t say that,” the mother responded. “I didn’t say he molested my daughters, I

said he had tendencies.” Petitioner questioned both the father and the son, and each

denied the allegations.

      In seeking to find housing for the son, petitioner gave no credibility to the

mother’s statement that the son molested her daughters, as the mother had

immediately retracted the statement. Petitioner counseled the mother telling her

that she “[could not] go around and you should not go around saying these things,

kind of things, especially if it didn’t happen, because you can get some people in

trouble.”




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      Ultimately, it was agreed the son would spend the night with his paternal

grandmother and, thereafter, stay with his mother. At the end of her after-hours

shift, an email was sent informing respondent of petitioner’s efforts on behalf of the

father and the son, and that petitioner had provided supportive counseling to the

walk-in appointment.

      In mid-July 2016, respondent received a request for assistance from Wilkes’

County DSS (WCDSS) regarding an allegation of child-on-child sexual misconduct.

The victim’s family was the same family with whom petitioner had spoken on 20 and

21 June. On 26 July, a meeting was held between petitioner, respondent’s Family

and Children Division Director Victor Isler, Program Manager Linda Alexander, and

petitioner’s supervisor, Alicia Weaver, to discuss petitioner’s interactions with the

mother, the father, and the son.

      At the end of the meeting, Division Director Isler informed petitioner that she

would not go to work that night and that she would be reassigned to the day shift.

There would be an internal investigation. By letter, petitioner was informed that she

was being reassigned due to an internal investigation and that the reassignment was

effective until 29 August 2016.

      On 12 September, petitioner received a “preconference document” informing

her of a conference on 15 September 2016 to discuss dismissing her from her Senior

Social Worker position within respondent’s Family and Children Services Division.



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On 15 September 2016, petitioner met with the agency director who informed

petitioner that the recommendation was for dismissal from respondent’s agency, not

simply the division of Family and Children Services.          On 22 September 2016,

petitioner received a formal dismissal letter from the agency.

      On 21 October 2016, petitioner filed a petition for a formal case hearing with

the Office of Administrative Hearings contending that she was discharged without

just cause. A hearing on the matter was commenced on 21 January 2017 in the

Guilford County Courthouse before the Honorable J. Randall May, ALJ presiding.

On 18 April 2017, ALJ May filed a final decision concluding that respondent

substantially prejudiced petitioner’s rights, failed to act as required by law, and acted

arbitrarily and capriciously when dismissing petitioner.       ALJ May ordered that

petitioner be reinstated to her position as Senior Social Worker, or a comparable

position, with all applicable back pay and benefits. In addition, respondent was

ordered to pay petitioner’s attorney fees. Respondent appeals.

                 ________________________________________________

      On appeal, respondent challenges the 18 April 2017 final decision arguing that

the ALJ erred by concluding respondent failed to establish grossly inefficient job

performance, failed to establish unacceptable personal conduct, and violated

petitioner’s procedural rights. Respondent raises five issues on appeal: whether the

ALJ erred by (I) concluding that respondent lacked just cause to dismiss petitioner;



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(II) concluding that respondent violated petitioner’s procedural rights; (III) making

unsupported findings of fact; (IV) making unsupported conclusions of law; and (V)

concluding that petitioner was entitled to an award of attorney’s fees.

                                 Standard of Review

      Respondent appeals from the final decision of an ALJ who reviewed a final

agency decision issued in accordance with the North Carolina Human Resources Act

and the Administrative Procedures Act.        N.C. Gen. Stat. §§ 126-34.02, 150B-34

(2017). Now on appeal before this Court, review is governed by General Statutes,

section 150B-51:

             (b) The court reviewing a final decision may affirm the
             decision or remand the case for further proceedings. It may
             also reverse or modify the decision if the substantial rights
             of the petitioners may have been prejudiced because the
             findings, inferences, conclusions, or decisions are:

                   (1) In violation of constitutional provisions;
                   (2) In excess of the statutory authority or jurisdiction
                   of the agency or administrative law judge;
                   (3) Made upon unlawful procedure;
                   (4) Affected by other error of law;
                   (5) Unsupported by substantial evidence 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.

             (c) In reviewing a final decision in a contested case, the
             court shall determine whether the petitioner is entitled to
             the relief sought in the petition based upon its review of the
             final decision and the official record. With regard to
             asserted errors pursuant to subdivisions (1) through (4) of
             subsection (b) of this section, the court shall conduct its


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

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

                                             I

      Respondent contends that the ALJ erred as a matter of law by concluding that

respondent violated petitioner’s procedural rights. We disagree.

      “Procedural due process restricts governmental actions and decisions which

deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due

Process Clause of the Fifth or Fourteenth Amendment.” Peace v. Employment Sec.

Comm’n, 349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998) (citation omitted). “The

fundamental premise of procedural due process protection is notice and the

opportunity to be heard.” Id. at 322, 507 S.E.2d at 278 (citation omitted).

      “The North Carolina General Assembly created, by enactment of the . . . [North

Carolina Human Resources Act], a constitutionally protected ‘property’ interest in

the continued employment of career State employees.” Id. at 321, 507 S.E.2d at 277;

see generally N.C. Gen. Stat. § 126-35(a) (2017) (“No career State employee subject to

the North Carolina Human Resources Act shall be discharged, suspended, or demoted

for disciplinary reasons, except for just cause.”). Our General Assembly also provided

that the provisions of the State’s Human Resources Act, codified in General Statutes,



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Chapter 126, “shall apply to: . . . (2) All employees of the following local entities: . . .

b. Local social services departments.” N.C. Gen. Stat. § 126-5(a)(2)b. (2017) 1; see also

Watlington v. Dep’t of Soc. Servs. Rockingham Cty., ___ N.C. App. ___, ___, 799 S.E.2d

396, 401 (2017) (“The [State Human Resources Act] applies to . . . certain local

government employees, including those who work for local social services

departments.”); Early v. Cty. of Durham DSS, 172 N.C. App. 344, 354, 616 S.E.2d

553, 560 (2005) (“[T]his Court has also held broadly: Local government employees . .

. are subject to the . . . [Human Resources Act]. As such, they cannot be ‘discharged,

suspended, or demoted for disciplinary reasons, except for just cause.’ G.S. § 126–35.”

(citation omitted)).

        It is well settled that a career State employee enjoys a “property interest of

continued employment created by state law and protected by the Due Process Clause

of the United States Constitution. As a consequence, respondent could not rightfully



        1

                For the purposes of [General Statutes, Chapter 126], unless the context
                clearly indicates otherwise, “career State employee” means a State
                employee or an employee of a local entity who is covered by this
                Chapter pursuant to G.S. 126-5(a)(2) who:

                        (1) Is in a permanent position with a permanent appointment,
                        and

                        (2) Has been continuously employed by the State of North
                        Carolina or a local entity as provided in G.S. 126-5(a)(2) in a
                        position subject to the North Carolina Human Resources Act
                        for the immediate 12 preceding months.

N.C. Gen. Stat. § 126-1.1(a) (2017).

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take away this interest without first complying with appropriate procedural

safeguards.” Nix v. Dep’t of Admin., 106 N.C. App. 664, 666, 417 S.E.2d 823, 825

(1992) (citations omitted). This applies equally to local career DSS employees, such

as petitioner. See N.C.G.S. § 126-5(a)(2)b.; Early, 172 N.C. App. at 354, 616 S.E.2d

at 560.

      Pursuant to our Administrative Code,

             [b]efore an employee may be dismissed, an agency must
             comply with the following procedural requirements:

             ....

             (d) The agency director or designated management
             representative shall conduct a pre-dismissal conference
             with the employee . . . . The purpose of the pre-dismissal
             conference is to review the recommendation for dismissal
             with the affected employee and to listen to and to consider
             any information put forth by the employee, in order to
             insure that a dismissal decision is sound and not based on
             misinformation or mistake.

25 N.C. Admin. Code 01I .2308(4)(d) (2018).

      Respondent challenges four findings of fact and nine conclusions of law. We

focus first on conclusion of law number 74 stating that respondent violated

petitioner’s procedural due process rights by, inter alia, failing to properly notify

petitioner of the punishment to be determined by the pre-disciplinary conference.

      As set out in Issue II, supra, on 12 September 2016, petitioner was handed a

written statement notifying her of a pre-disciplinary conference scheduled for 15



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September 2016.     Petitioner was advised that the basis of the pre-disciplinary

conference was unacceptable personal conduct and grossly inefficient job

performance. Per the written statement, “[t]he purpose of the conference is to discuss

the recommendation of the [respondent] [to] dismiss you from the position of Senior

Social Worker with the Family and Children’s Division of [respondent].” (emphasis

added). Petitioner sought to contact Agency Director Donahue and her county human

resources office representative, but was denied a meeting with both. Petitioner

testified to her understanding that the pre-disciplinary conference was to discuss her

dismissal from respondent’s Family and Children’s Division; however, during the pre-

disciplinary conference she was informed that the conference was to discuss her

dismissal from the respondent’s agency. As the ALJ found in the final decision, the

following statements were made during the pre-disciplinary conference:

             73.   . . . I know [respondent] recommended dismissal of
                   me from the division; really I am ok with that; I have
                   spoken with you [Debra Donahue] regarding other
                   interests that I have in the agency, I just want to use
                   my services to make a difference in the
                   agency/community.

             74.   [Agency Director] Donahue responded, “Let me give
                   you clarity regarding the recommendation; the
                   recommendation is to dismiss you from the agency,
                   not the Division.”

             75.   Petitioner responded,

                   “Thank you for the clarity, I thought it was dismissal
                   from the Division; in 19 years, I have never had a


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                   written warning, I am floored, almost speechless; it
                   really bothers me that people think I would
                   intentionally harm or place a child in harm[’]s way; I
                   have always followed the letter of the law when it
                   comes to child welfare, I have never taken a
                   shortcut, never a written warning, I’m just taken
                   aback.”

      Thereafter, petitioner received no further written notice or opportunity to be

heard in a pre-disciplinary conference, as to dismissal from respondent, as opposed

to a division of respondent. On 22 September 2016, petitioner received her dismissal

letter which stated that “you are dismissed from your position as a Senior Social

Worker with [respondent].”

      As dismissal from a division within an agency and dismissal from the agency

are different punishments, respondent failed to provide petitioner with sufficient

notice of the potential punishment to be determined during the pre-disciplinary

conference. Reasonable notice of dismissal encompasses notice of sanctions or from

what employment the accused may be dismissed. See Peace, 349 N.C. at 322, 507

S.E.2d at 278 (“The fundamental premise of procedural due process protection is

notice and the opportunity to be heard.” (citation omitted)). We uphold the ALJ’s

conclusion that respondent’s lack of notice violated petitioner’s procedural due

process rights. Accordingly, respondent’s argument on this point is overruled.

      Having determined petitioner’s due process right to notice and opportunity to

be heard have been violated, we need not address whether prolonging her



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investigatory period without authorization was a violation of petitioner’s due process

rights.

                                            II

      Respondent argues that the ALJ erred by concluding that respondent failed to

establish just cause for petitioner’s dismissal due to grossly inefficient job

performance. Respondent challenges several of the findings of fact as unsupported

by substantial evidence and conclusions of law as unsupported by the findings of fact.

      Pursuant to our General Statutes, “[n]o career State employee subject to the

North Carolina Human Resources Act shall be discharged, suspended, or demoted for

disciplinary reasons, except for just cause. . . .         The State Human Resources

Commission may adopt, subject to the approval of the Governor, rules that define just

cause.”   N.C. Gen. Stat. § 126-35(a) (2017).          Pursuant to the North Carolina

Administrative Code, Title 25 (“Office of State Human Resources”) (previously

codified within our General Statutes, Chapter 126), the two bases for “the discipline

or dismissal of employees under the statutory standard of ‘just cause’ as set out in

G.S. 126-35 [include] .     .     [d]iscipline or dismissal imposed on the basis of

unsatisfactory job performance, including grossly inefficient job performance.” 25

N.C. Admin. Code 1I.2301(c)(1) (2018) (Just Cause for Disciplinary Action).

                     Gross Inefficiency (Grossly Inefficient Job
             Performance) occurs in instances in which the employee
             fails to satisfactorily perform job requirements as specified
             in the job description, work plan, or as directed by the


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                management of the work unit or agency and that failure
                results in:

                (1)     the creation of the potential for death or serious
                        harm to a client(s), an employee(s), members of the
                        public or to a person(s) over whom the employee has
                        responsibility; or
                (2)     the loss of or damage to agency property or funds
                        that result in a serious impact on the agency or work
                        unit.

25 N.C. Admin. Code 01I.2303(a).

        This Court has held that to determine if just cause exists to dismiss an

employee for grossly inefficient job performance “the [agency] must prove that (1) the

employee failed to perform his job satisfactorily and (2) that failure resulted in the

potential for death or serious bodily injury.” Donoghue v. N.C. Dep’t of Corr., 166

N.C. App. 612, 616, 603 S.E.2d 360, 363 (2004) (citation omitted).

        On appeal, respondent contends that because petitioner failed to generate a

formal or informal, handwritten or computerized CPS report following the interview

with the father, the son, and the mother, she created the potential for serious harm

to a family in violation of General Statutes, section 7B-301(a),2 the North Carolina

Child Abuse Reporting Law.




        2 “Any person or institution who has cause to suspect that any juvenile is abused, neglected,
or dependent, as defined by G.S. 7B-101, or has died as the result of maltreatment, shall report the
case of that juvenile to the director of the department of social services in the county where the juvenile
resides or is found.” N.C. Gen. Stat. § 7B-301(a) (2017).

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      Respondent challenges several (A.) findings of fact and (B.) conclusions of law

on the topic of grossly inefficient job performance.

                                           A.

      Respondent specifically challenges the following findings of fact:

             44.    Petitioner treated this as a “general inquiry” about
             foster care, because none of the parties wished to make a
             report and she had no independent cause to suspect that
             child abuse had occurred.

             46.    On or about mid July 2016, Respondent received a
             request for assistance from Wilkes County Department of
             Social Services regarding an allegation of child on child
             sexual misconduct because the mother was not
             cooperating; and the father stated that none of it was true
             and wanted to work with the social worker that he had met
             in Forsyth County. . . .

             47.    On July 26, 2016, a meeting was held with
             Petitioner, Victor Isler; Program Manager, Linda
             Alexander; and Petitioner’s supervisor, Alicia Weaver.
             During this meeting, it was discovered that this family was
             the same family that Petitioner had interacted with on
             June 20, 2016. . . . .

             48.     Petitioner was honest and forthcoming . . . . She also
             informed that she had received a phone call from the
             attorney of the mother threatening Petitioner and the
             father because the mother was not letting him visit her son
             in [sic] the previous week.

(emphasis added).

      Petitioner’s testimony—as set forth in other unchallenged findings of fact—

support finding of fact number 44 that she had no cause to suspect abuse. For



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instance, petitioner first spoke with the mother during an “aggressive” conversation

between the mother and the father after the father had brought the son into

respondent’s agency seeking a temporary residence for him.          As petitioner was

exploring alternative options to foster care placement, the mother gave the following

reasons why she did not want the son to live with her:

             - That she is now married
             - That her two daughters do not acknowledge the father as
             their father
             - That she wanted her new husband to adopt their
             daughters
             - That the father’s other relatives should take care of the
             son
             - That the father was verbally and physically abusive
             - That the son called her a crack whore when he was six
             - That she is in nursing school and had a busy schedule
             - That she had no room for her son

When informed that none of those reasons indicated why her son could not come live

with her, the mother continued to express her strong dislike for the father. When

asked if the mother wanted the son to be placed in foster care, the mother responded,

“Well, I don’t want that, I don’t want that on my record.” At a later point, “the mother

blurted out, ‘Oh, yeah. He molested my daughters.’ ”

             35.     Petitioner immediately launched into her trained
             follow up questions. Petitioner asked, “Well, who is he?”
             and the mother said, “My son”. [sic] Petitioner asked for
             clarification, “Are you telling me that he molested your
             daughters?” The mother immediately recanted and stated,
             “I didn’t say that.” Petitioner then asked the mother,
             “Well, did you call law enforcement? Did you make a
             report?” The mother continued to deny, “No. I didn’t say


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             that.” The mother then said, “I didn’t say he molested my
             daughters, I said he had tendencies.” . . . .

             36.    Petitioner questioned both the father and the son,
             and asked if this was true; the father and son each denied
             the allegation. . . . .

             ....

             45.   The next day, the mother, the father, and the
             grandmother informed Petitioner that the mother was
             taking the son and that the issue was resolved.

Even during the hearing on respondent’s disciplinary action of terminating

petitioner, the ALJ found that “the mother testified at the hearing, under oath, that

she never stated to Petitioner that her son had molested her daughters. . . .”

      The record provides substantial evidence in support of the ALJ’s finding of fact

number 44, “[p]etitioner . . . had no independent cause to suspect . . . child abuse[,

neglect, or dependency].”

      In finding of fact number 46, respondent contends that WCDSS contacted

respondent because of allegations of sexual activity prior to respondent’s facilitation

of the son’s placement with the mother and her daughters. Respondent’s contention

is without merit.

      On the contrary, the finding of fact shows that WCDSS requested assistance

from respondent as petitioner had previously been involved with the family. This

finding is supported in part by the mother’s testimony where she denies saying her

son had sexually molested his siblings. When asked, she responded:


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             Absolutely not. Where that came from I have no idea. If at
             any time I have thought he would have molested my
             daughters or had have, regardless of how old he was, I
             would have done then what I did on June -- July 16th and
             had my daughters at Brenner’s Hospital, the Wilkes
             County Sheriff’s Department at my house, as well as
             Wilkes County DSS.

Finding of fact 42 is related to finding of fact 46 and is supported by testimony in the

record from at least two witnesses.

      While respondent urges there is contrary testimony as to finding of fact

number 48, it is clear from petitioner’s testimony concerning her telephone call, that

there is substantial evidence to support this finding by the ALJ.

                                           B.

      Respondent next challenges portions of the ALJ’s conclusions of law related to

respondent’s claims of grossly inefficient job performance.

             30.   . . . With respect to the policy violations cited, the
             weight of the evidence fails to show Petitioner’s violation of
             the policies named by Respondent in the dismissal letter.

             31.     The greater weight of the evidence does not establish
             a violation of N.C.G.S. § 7B-301. N.C.G.S. § 7B-301 makes
             it a class 1 misdemeanor to knowingly or wantonly fail to
             report the case of a juvenile, when that person has cause to
             suspect that any juvenile is abused, neglected, or
             dependent. The North Carolina Courts have not defined
             “cause to suspect;” [sic] however, the North Carolina School
             of Government provides:

                    The standard is not just a suspicion but cause
                    to suspect. However, a person deciding
                    whether to make a report also must consider


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      a child’s statements, appearance, or behavior
      (or other objective indicators) in light of the
      context; the person’s experience; and other
      available information.”        Janet Mason,
      Reporting Child Abuse and Neglect in North
      Carolina 67 (3d ed. 2013), available at
      https://www.sog.unc.edu/sites/www.sog.unc.e
      du/files/full_text_books/Mason_%20Reportin
      g-Child-Abuse_complete.pdf.

       Petitioner was the only person to provide firsthand
testimony of what she heard and observed that day.
Petitioner    testified   extensively,  and     throughout
Respondent’s investigation, that based on the context of
the statements, her experience, and ability to observe and
interact with the child, she had no cause to suspect abuse.
It is Respondent’s burden to prove that Petitioner had
cause to suspect abuse and knowingly chose not to report
the abuse. This was not established by the greater weight
of evidence.

32.    The greater weight of evidence does not establish a
violation of 10A N.C.A.C. 70A .0105, which dictates that
the “county director shall receive and initiate an
investigation on all reports of suspected child abuse,
neglect, or dependency, including anonymous reports.”

33.    Petitioner never admitted that she violated 10A
N.C.A.C. 70A .0105(a); instead, she remained adamant
that she followed Respondent’s “supportive counseling
policy.” Nowhere in 10A N.C.A.C. 70A .0105(a) does it state
that Petitioner must inform her supervisor of all facts
when providing supportive counseling and must generate
a FDCSS report for all intakes.

35.    The majority of the credible evidence presented
indicated that Petitioner may have violated Respondent’s
“supportive counseling policy.” However, Respondent did
not list that as a basis for Petitioner’s dismissal, and it is
not addressed here.


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             36.   Even if Respondent had presented sufficient
             evidence that Petitioner failed to satisfactorily perform job
             requirements, the grossly inefficient job performance claim
             fails because Respondent was required to make an
             evidentiary connection between Petitioner’s actions and
             the harm. Respondent failed to do this. See Clark v. N.C.
             Dep’t of Pub. Safety, No. COA15-624, 2016 N.C. App.
             LEXIS 897 (Ct. App. Sep[t]. 6, 2016)[.]

      As to conclusions of law numbered 30, 31, 32, and 33, respondent generally

argues that petitioner failed to create a report in compliance with State policy that

would have initiated a second level of review and allowed petitioner’s supervisor to

make a determination of whether the information gathered during the initial intake

meeting with the father and the son constituted abuse, neglect, or dependency, or

warranted further investigation.

      As set forth in the final decision, our Administrative Code sets out that

             Gross Inefficiency (Grossly Inefficient Job Performance)
             occurs in instances in which the employee fails to
             satisfactorily perform job requirements as specified in the
             job description, work plan, or as directed by the
             management of the work unit or agency and that failure
             results in:

             (1)   the creation of the potential for death or serious
                   harm to a client(s), an employee(s), members of the
                   public or to a person(s) over whom the employee has
                   responsibility; or

             (2)   the loss of or damage to agency property or funds
                   that result in a serious impact on the agency or work
                   unit.



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                                   Opinion of the Court



25 N.C. Admin. Code 01I.2303(a).

      As the ALJ concluded, petitioner had performed the job requirements as

directed by the management group for the agency for which she worked.              The

substantial evidence and findings of fact indicate that petitioner provided supportive

counseling to the father and the son on 20 and 21 June 2016 and notified her

supervisor of the counseling provided during her work shift. Supportive counseling

was not included in the State’s intake CPS reporting mechanism, but was a practice

utilized by respondent’s management.

      Moreover, in the ALJ’s unchallenged findings of fact, during the investigation

of petitioner’s 20 June 2016 incident, petitioner’s supervisor, Stanfield, was not asked

to provide a written account of what he recalled, and he was not provided with a

written copy of petitioner’s statement of the events on that date.

      As the substantial evidence and findings of fact indicate that petitioner

provided supportive counseling to the father, the mother, and the son on 20 June

2016, that supportive counseling was not a stated ground for petitioner’s dismissal,

and because petitioner’s supervisor failed to indicate what information he had

received, the ALJ concluded that petitioner’s dismissal could not be upheld on the

ground of grossly inefficient job performance. We agree and overrule respondent’s

challenge to conclusions of law 30, 31, 32, 33, and 35.




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                                   Opinion of the Court



      Respondent lists conclusion of law number 36 (“Respondent was required to

make an evidentiary connection between Petitioner’s actions and the harm.

Respondent failed to do this.”) as one challenged on appeal, but does not otherwise

specifically address this conclusion in its brief before this Court. See N.C. R. App. P.

28(a) (2018) (“Issues not presented and discussed in a party’s brief are deemed

abandoned.”). We note that we overruled respondent’s challenge to finding of fact

number 44 (“Petitioner . . . had no independent cause to suspect . . . child abuse[,

neglect, or dependency].”) under subsection A., supra.         Therefore, we dismiss

respondent’s challenge to this conclusion of law.

      Accordingly, we overrule or dismiss respondent’s challenges to the ALJ’s

findings of fact and conclusions of law addressing grossly inefficient job performance.

                                           IV

      Next, respondent argues that the ALJ erred by concluding that respondent

failed to establish just cause for dismissal based on unacceptable personal conduct.

      Our Administrative Code provides that “[e]mployees may be dismissed for a

current incident of unacceptable personal conduct.” 25 N.C. Admin. Code 01I .2304(a)

(2018) (Dismissed for Personal Conduct). Unacceptable personal conduct is defined

in pertinent part as:

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




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                                   Opinion of the Court



             (2) job related conduct which constitutes violation of state
                 or federal law; or

             ....

             (4) the willful violation of known or written work rules; or

             (5) conduct unbecoming an employee that is detrimental to
                 the agency’s service[.]

25 N.C. Admin. Code 01I .2304(b)(1), (2), (4), and (5).

      Using the test for determining just cause for discipline due to unacceptable

personal conduct as presented in Warren v. N.C. Dep’t of Crime Control, 221 N.C.

App. 376 726 S.E.2d 920 (2012), the ALJ stated

             (a) did the employee engage in the conduct the employer
             alleges;

             (b) does the employee’s conduct fall within one of the
             categories of unacceptable conduct provided in the
             Administrative Code; and

             (c) if the employee’s actions amount to unacceptable
             personal conduct, did the misconduct amount 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.

See generally id. at 381, 726 S.E.2d at 924–25.

      Respondent alleges unacceptable personal conduct under sections (1), (2), (4),

and (5). After extensive review, the ALJ determined respondent did not have just

cause to dismiss petitioner for unacceptable personal conduct. On appeal, respondent

challenges six of the ALJ’s findings of fact (16, 17, 18, 24, 42, and 43) and nine


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                                   Opinion of the Court



conclusions of law (44, 45, 48, 49, 50, 51, 54, 55, and 56). We address primarily the

findings of fact and conclusions of law related to part (c) of the Warren test (“[D]id the

misconduct amount to just cause for the disciplinary action taken?”).

      In the final decision, under the heading “Did Petitioner engage in the conduct

as alleged?” the ALJ concluded

             the preponderance of the evidence shows that Petitioner
             engage[d] in the conduct alleged by Respondent. While
             there is some evidence to the contrary . . . the greater
             weight of evidence demonstrates that Petitioner did not
             inform her supervisor of the allegations of child on child
             sexual abuse and did not create a FCDSS Computerized
             Report.

However, the ALJ further concluded that “[e]ven if Petitioner’s action(s) were, at

some level, considered to be some type of unacceptable personal conduct, Petitioner’s

actions did not constitute just cause for dismissal when the equities in this case are

balanced.” The ALJ made the following conclusions:

             51.    Even if Petitioner’s action(s) were, at some level,
             considered to be some type of unacceptable personal
             conduct, Petitioner’s actions did not constitute just cause
             for dismissal when the equities in this case are balanced.
             Those include the following: 1) Petitioner’s substantial, 19
             year, discipline-free employment history with Respondent,
             as well as her record of good performance in her duties as
             recorded in her performance reviews; 2) Petitioner received
             no training in “supportive counseling”; 3) the supportive
             counseling policy was not in writing; 4) Donahue and Isler
             admitted that they did not look at Petitioner’s employment
             evaluations or the length of her employment before
             reaching their decisions; 5) the supportive counseling
             policy was not frequently enforced; 6) there was at least one


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                     Opinion of the Court



other time that Respondent listened to allegations of abuse
by local police and were told not to document it; and 7)
Petitioner was honest and forthcoming throughout the
entire investigation.

....

54.    Respondent’s investigation and treatment of
Petitioner was also fundamentally unfair. This began with
violating Petitioner’s procedural rights by erroneously
prolonging her investigatory period without authorization.
Respondent never spoke with Petitioner to learn why she
applied “supportive counseling” or who trained her that
way. Respondent then created self-serving hypotheticals
to try to justify that this harm was not part of improper
oversight and training on behalf of Respondent. Mr. Isler
learned that intake workers were no longer applying
“supportive counseling” after this incident, and did not
inform the agency director. The pre-dismissal letter stated
that the recommended discipline was a dismissal from the
division, not the agency. The agency director refused to
meet with Petitioner prior to her pre-disciplinary
conference. Respondent’s HR department told Petitioner
to go back to the agency director. When the agency director
learned, during the pre-disciplinary conference, that
Petitioner understood [t]hat the recommendation was
dismissal from the agency, she made no effort to correct the
written notice of a second pre-disciplinary conference after
she was made aware of the misrepresentation.

55.    Respondent has met its burden of proof to show that
Petitioner engaged in unacceptable conduct [“the greater
weight of evidence demonstrates that Petitioner did not
inform her supervisor of the allegations of child on child
sexual abuse and did not create a . . . Computerized
Report,”] however, after considering the totality of the facts
and circumstances, Respondent did not have just cause to
dismiss Petitioner from her employment.




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                                  Opinion of the Court



             56.    Respondent substantially prejudiced Petitioner[’s]
             rights; acted erroneously; failed to act as required by law;
             and acted arbitrarily and capriciously when Respondent
             dismissed Petitioner without just cause.

      The findings of fact, supported by substantial evidence, indicate that on 26 July

2016, petitioner met with Victor Isler, Program Manager Linda Alexander, and

Supervisor Alicia Weaver. Petitioner was honest and forthcoming regarding the

events which had occurred 20 and 21 June 2016 while counseling the father, the

mother, and the son. Petitioner stated that she applied respondent’s supportive

counseling policy as she understood it—a policy that was never set out or reduced to

writing. Isler informed petitioner that there would be an investigation and that she

would be temporarily reassigned to the dayshift due to the investigation.         The

reassignment was to last 33 calendar days, until 29 August 2016.            Respondent

demanded that petitioner document her statements during the 26 July 2016 meeting

and to create a CPS report. Petitioner complied with both requests. On 29 August

2016, respondent informed petitioner that her temporary assignment was extended

until 12 September to “further investigate” and “allow time to schedule and conduct

a pre-disciplinary conference subject to agency findings.”

      During the investigation, social workers were individually invited to meet with

Isler, Alexander, and Weaver and posed hypothetical questions to determine how the

social workers would respond with regard to applying supportive counseling. The

social workers were aware that petitioner had been reassigned due to an internal


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                                  Opinion of the Court



investigation regarding supportive counseling. At least two responses indicated that

“[i]n the past, we would have offered supportive counseling, but currently we’re going

to make a report,” and “two weeks ago I would have provided information, but now I

document everything.” The findings from the social worker interviews were not

shared with Agency Director Debra Donahue. Petitioner was not asked how she was

trained to apply supportive counseling, and petitioner was not asked to respond to

the hypotheticals. Petitioner’s after-hours supervisor, Michael Stanfield, was not

asked to provide a written account of what he recalled of the 20 June 2016 events and

was not provided petitioner’s written account of her statements made during the 26

July 2016 meeting with Isler, Alexander, and Weaver.

      On 12 September 2016, petitioner was notified of a pre-disciplinary conference

scheduled for 15 September to address unacceptable personal conduct and grossly

inefficient job performance.    “The purpose of the conference is to discuss the

recommendation the [respondent] dismiss you from the position of Senior Social

Worker with the Family and Children’s division of [respondent].” Petitioner asked to

speak with Agency Director Donahue, but was told that Donahue could not speak

with her about the conference. Petitioner contacted her county human resources

representative and made an appointment to meet on 14 September.                On 13

September, petitioner received an email cancelling the meeting with the human

resources representative.



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                                  Opinion of the Court



      During the 15 September pre-disciplinary conference on petitioner’s dismissal,

Agency Director Donahue informed petitioner that the conference was to consider

petitioner’s dismissal from the agency, not just the division. Petitioner’s response

was that she was “floored, almost speechless.” Respondent did not provide petitioner

with a new notice for a pre-disciplinary conference or a new pre-disciplinary

conference. On 22 September 2016, petitioner received a ten page dismissal letter

stating “effective as of today . . . you are dismissed from your position as a Senior

Social Worker with [respondent].”

      Upon review of the record and respondent’s arguments, we hold respondent

has failed to raise a meritorious argument significantly challenging these conclusions

of law or the underpinning findings of fact. Therefore, we hold that substantial

evidence supports the findings of fact, and that the findings of fact support the ALJ’s

challenged conclusions of law 51, 54, 55, and 56.          Accordingly, we overrule

respondent’s arguments.

                                           V

      Lastly, respondent argues that the ALJ erred by concluding that petitioner is

entitled to remedies under 25 N.C.A.C. 01J.1306, including an award of attorney’s

fees and back pay. We agree.

      In his final decision, the ALJ

             ORDERED that Petitioner . . . be reinstated to her position
             as Senior Social Worker, or comparable position . . . .


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                                 Opinion of the Court



            Petitioner shall be retroactively reinstated to this position
            of employment with the Respondent, with all applicable
            back pay and benefits. Respondent shall pay to Petitioner
            and her attorney all reasonable attorney fees and cost
            incurred in this Contested Case pursuant to N.C.G.S. §
            150B-33(11).

                                     Back Pay

      Pursuant to Subchapter J of Title 25 within our Administration Code, in a

grievance an employee may receive back pay “in all cases in which back pay is

warranted by law.” 25 N.C. Admin. Code 01J.1306(1) (2018). This Court has held

that Title 25’s Subchapter J applies to State employees, while Subchapter I applies

to local government employees. Watlington, ___ N.C. App. at ___, 799 S.E.2d at 403.

“[A] local government employee shall mean those employees of local social services

departments, public health departments, mental health centers and local offices of

civil preparedness which receive federal grant-in-aid funds.” 25 N.C. Admin. Code

01A .0103(6) (2018).

            Title 25 contains the rules adopted by the [State Human
            Resources] Commission and includes distinct subchapters
            on various personnel topics. . . . .

            Subchapter I, “Service to Local Governments,” provides the
            procedures and rules specific to the personnel system
            developed for local government employees, including
            subsections on recruitment and selection, classification,
            and compensation. See 25 NCAC 01I.1800, .1900, and
            .2100 (2016). Subchapter I includes a separate subsection
            on “Disciplinary Action: Suspension, Dismissal and
            Appeals,” which includes rules regarding just cause and
            dismissal for unacceptable personal conduct. 25 NCAC


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                                    Opinion of the Court



             01I.2301 and .2304 (2016). These rules vary slightly from
             the rules and procedures stated under Subchapter J. See
             25 NCAC 01J.0603–.0618.

Id. at ___, 799 S.E.2d at 402.

      Respondent argues that it is a local government agency that is governed by

Subchapter I of the N.C. Admin. Code, Title 25—not Subchapter J.            We agree.

Therefore, the ALJ erred in awarding petitioner back pay pursuant to Title 25 N.C.

Admin. Code 01J.1306. On this ground, we vacate the portion of the order in the

final decision to award back pay.

                                     Attorney’s Fees

      “N.C. Gen. Stat. § 150B-33[(b)](11) allows [an] ALJ to award attorney’s fees . .

. under certain circumstances[.]” Watlington, ___ N.C. App. at ___, 799 S.E.2d at 405.

Pursuant to General Statutes, section 150B-33, “[a]n administrative law judge may .

. . [o]rder the assessment of reasonable attorneys’ fees . . . against the State agency

involved in contested cases decided . . . under Chapter 126 where the administrative

law judge finds discrimination, harassment, or orders reinstatement or back pay.”

N.C. Gen. Stat. § 150B-33(b)(11) (2017) (emphasis added).

      Here, respondent is not a State Agency. Accordingly, the ALJ was without

authority to award petitioner’s attorneys’ fees pursuant to section 150B-33(b)(11).

Accordingly, we vacate the portion of the order in the final decision to award

attorney’s fees.



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                      Opinion of the Court



AFFIRMED IN PART; VACATED IN PART.

Judges DILLON and TYSON concur.




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