*1 IN THE COURT OF APPEALS 437 v. MYERS CORRECTION App. (1995)] N.C. 437
[120
Staff,
Against
Government,
Civil Actions
State
Local
and
Its
Divisions, Agencies
(2d
1992)
and
1.16
ed.
[hereinafter
Officers
Actions];
Taylor,
App.
Civil
see
at
tort claims involve acts of defendants within the capacities representa- bounds their official and in duties their as tives the State. Therefore individual can defendants be capacity sued their official and governmental as such share the immunity enjoyed University, agency the State. See Jones Hosp., v. Pitt 613, Memorial N.C. (1991) (all against tort claims and its UNC constituent insti- brought
tutions must be Commission). before the Industrial This immunity supports summary judgment on these claims. See Puryear, Dickens v. 335 (1981) (summary appropriate plaintiff where cannot surmount defense). defendant’s affirmative
Affirmed.
Judges JOHNSONand SMITHconcur. CORRECTION, NORTH CAROLINA OF DEPARTMENT v. GLENN E. Petitioner MYERS, Respondent No. COA95-135 (Filed 1995) 17 October Employees (NCI4th)— 1. Public Officers § 67 demotion of correctional officer —standard of review — absence just cause properly applied the whole test record concluded that there was no cause for the demotion respondent supervisor correctional where the found indicated there record was insufficient evidence to show DEPT. OF *2 confidentiality” respondent or that he “failed
that provide complete “breached questions” responses causing the “omission probation disciplinary hearing facts” officer’s of respondent’s anything comments revealed where none of probation but nature officer herself confidential about and method of con- instead amounted to criticism the manner pre-disciplinary hearings. ducting 2d, § Am Jur Civil Service 63. privilege officer’s as state-
Libel and slander: Public hiring discharge. in connection with ments made 492. ALR3d (NCI4th)—
2. award of fee —no basis for § Costs hourly amount Department ordering trial court erred pay attorney’s respondent’s attorney fees to
Correction to per hour, fee” “judiciallyrecognized lodestar where the expended, fact as the time and labor court made no customary required, work, experi- like or the skill fee for ability attorney. ence or N.C.G.S. 6-19.1. 2d,
Am 79-86. §§ Jur Costs Employees (NCI4th)— 3. Public Officers correc- improper tional demotion —reinstatement—same officer — pay but different location A who demoted without cause correctional officer was he where was returned to same reinstated step though his even he now works as before demotion position in a different and location. seq. 2d, §§
Am Jur Civil Service 52 et practice pub- What under constitutes unfair labor state 20. lic relations acts. ALR4th
Judge concurring. Greene Appeal from the North Carolina of Correction by Judge R. George entered 25 Greene October Appeals 24 Superior Heard in the Court of Wake Court. 1995. August
N.C. DEPT. OF CORRECTION v. MYERS Easley, F. Attorney General, by Michael Oguah, Paula D. Attorney General, Assistant petitioner-appellant/ appellee. Schiller, Marvin respondent-appellee/appellant.
WYNN,Judge. initially
We note inquiry that our is limited to the evidence avail- through able the record on See, as settled the trial court. Management Waste Carolinas, Co., Inc. v. Peerless Ins. 315 N.C. reh’g denied,
Our examination of the record respondent, indicates that Glenn Myers, E. supervisor worked aas unit for the North Carolina (hereinafter of Correction DOC) County. in Davidson His duties supervising probation included five officers. On or about 11 probation June one of officers, Nicholson, Ms. Maxine had disciplined personal been Myers present misconduct. Mr. was Ms. pre-disciplinary Nicholson’s conference. Subsequently, Ms. disciplined Nicholson appealed was disciplinary and later her action Employee to the Relations Committee. After a hearing before the Committee, Ms. Nicholson’s wrote to the North Carolina Attorney General’s Office complaining about allegedly statements by Myers made Mr. which disciplinary indicated that Ms. Nicholson’s hearing impartial. was not investigated matter, and as a result, Myers Mr. received a letter of January demotion dated 16 1992. letter, part, alleged relevant demotion and upon transfer were based following:
(1) confidentiality by breach private personnel discussing matters; provide
(2) complete responses questions failure to before the Employee Relations Committee which resulted the omission of important facts and germane disciplinary circumstances against action taken Officer Maxine Nicholson. upon Myers
Based reasons, these Mr. was demoted DOCfrom Supervisor Unit to Adult Officer, Probation/Parole effective 16 January February Myers 1992. On petition Mr. filed a for a contested hearing case in the Office of Hearings alleg- Administrative ing he just was demoted and transferred without cause and that the specificity demotion letter required by lacked the law. The ' OF APPEALS IN THE COURT v. MYERS CORRECTION AU) filed recommended Judge (hereinafter Law Administrative did not have that DOC September 1992, and concluded on 14 Myers. 1 November Mr. On or about and transfer just cause to demote in Davie Supervisor III 1992, Myers was reinstated to Mr. pay.
back issued February. 1993, State Personnel Commission On 23 rejected decision and held which the ALJ’s and order final decision Myers Myers. appealed to Mr. Mr. cause to dismiss that DOC had October Superior 25 March 1993. On 25 Court on order, except Mr. the Commission’s court reversed The trial position and location. to his former denied a re-transfer fees to that DOC further ordered per “judicially recognized lodestar rate attorney at his 1994. Mr. on 9 November gave hour.” DOC notice to his judgment denying a re-transfer appeals portion from part. part reverse in position. We affirm in former I.
whether the [1] Our review trial court of the case sub applied judice is limited to two issues: appropriate scope of review and, (1) properly. Amanini v. so, if whether the court did so App. 668, 675, 114, 118-19 Resources, Human appel- both trial and 150B-51(b) (1991) governs N.C. Gen. Stat. *4 agency decisions. late court review of administrative may remand agency’s the decision or reviewing a final decision affirm may Additionally, the court proceedings. Id. the case for further rights of the modify agency’s decision if the substantial or the reverse by or con- may prejudiced agency’s findings the petitioners have been clusions. Id. par depends upon the any case, proper manner of review
In the Dept. Human presented appeal. Amanini v. N.C. on ticular issues petitioner argues App. 674, at 118. If Resources, 114 N.C. 443 S.E.2d law, an error of then de novo was based on agency’s requires a court to consider a required. De novo review review is Id. or decided the question anew, if it had not been considered or as hand, petitioner questions “(1) whether the If, other agency. Id. on the supported by (2) or whether the the evidence agency’s decision was capricious, reviewing court must arbitrary then the decision was by McCrary, 112 N.C. Appeal In apply ‘whole record’ test.” re the 359, “whole record” test 161, 165, (1993). 363 OF N.C. DEPT.
requires competent the reviewing court to examine all evidence to agency supported determine whether the decision is substantial Id. evidence. subject case,
In the DOC trial contends that the court did not properly apply scope the of review Gen. under N.C. Stat. 150B-51 when it legal conclusions, and erred found that the AU’s rather than conclusions, supported by evidence, the Commission’s were the the findings, whole factual and the record. as the Inasmuch record on applied appropriate scope indicates that court the trial the question review—the “whole test —our remaining record” properly. whether the court did so
DOC apply contends that the trial court did not the record” all record, including “whole test because the evidence testimony and exhibits, shows that rational there was a basis for the Commission’s, finding Myers’ order that there was cause for Mr. Although demotion. the “whole record” gives reviewing test capability the whether an determine administrative decision has evidence, Rogers, rational basis In re 912, requires S.E.2d test reviewing court to competent examine all agency evidence to determine whether the supported by decision is Substantial substantial evidence. evidence as a might accept is “such relevant evidence reasonable mind as ade quate support Dept. a conclusion.” Henderson v. N.C. Human Resources, 527, (1988). S.E.2d 889-90 Moreover, the reviewing court must take into account both the evi supports any contradictory agency’s which dence decision and Lackey evidence which would a different v. N. result. C. Resources, Human hand, case at court found and the record indicates there insufficient evidence to show that “breached confidentiality” provide complete responses or that he “failed to questions” causing “omission of facts” at Officer disciplinary hearing. argues Nicholson’s com- were ments violation N.C. Gen. Stat. 126-22 which prohibits personnel a state from making confidential data inspection However, open none of Mr. *5 examination. anything of a comments revealed confidential nature about Officer herself. The record shows his comments Nicholson that were handling pre-disciplinary directed towards the of Ms. Nicholson’s for not conducted closed doors being conference behind and for APPEALS IN THE COURT OF v. DEPT. OF CORRECTION MYERS loudly. being rudely and These comments are not breaches conducted confidentiality, the and of of rather criticisms of manner method but pre-disciplinary conducting hearings. addition, record that the trial court found the indicates conclusion that Mr.
there was insufficient evidence to the provide complete responses questions and that he failed any important presented regarding No evidence was omitted facts. discipli- specific question Myers during of Mr. asked Ms. Nicholson’s nary what were or which of Mr. hearing, answers answers facts,” Myers purportedly what caused “omissions or “important evidence, facts” Based on we find were “omitted.” concluding findings that court not err in that all of the the trial did ALJ, adopted including fact and conclusions of law made by the those competent Commission, upon were based evidence contained the in whole record. the concluding in agree we that the trial court did not err
Because was demoted and reduced without we do (1993), cause in contravention N.C. Gen. Stat. 126-35 § petitioner’s arguments not that the demotion letter met the address specificity requirement the of N.C.G.S. and that ALJ’sdeci- § incomplete on sion was based record.
II. [2] DOCnext contends trial court when it ordered it to attorney pay attorney’s “judicially recognized fees to Mr. at the $160.00per agree. lodestar fee” hour. We the fees is within the Although award discretion judge N.C. Gen. 6-19.1 the court the trial under Stat. “ expended, findings rmist of fact ‘as to the time and labor make customary experience required, work, fee like skill ” ability attorney.’ Kuykendall, United of the Laboratories v. parenthetically We that note findings while our record does not indicate that trial court made attorney 6-19.1, fees under N.C.G.S. DOC establish basis challenge appeal to findings does this lack of on this court. any Rather, argues that not make the trial did necessary hourly attorney We findings agree. to arrive fee. Wetherefore reverse the trial court’s award of fees hourly hourly proper rate of and remand for on rate should be allowed this case. We note that our decision *6 IN THE COURT OF APPEALS N.C. DEPT. OF CORRECTION v. MYERS (1995)] N.C.
[120
remand to the trial court for a
hourly
determination of the
rate for
attorney’s
judicial
fees earned on
review under N.C.G.S. 6-19.1 is
prejudice
plaintiff
without
to the
complementary
seek
attor
ney’s fees from the
discretionary
Commission under
authority
its
under N.C. Gen. Stat.
§ 126.4
(1993). See,
Harding,
Correction v.
III. [3] Respondent Myers ordering DOC to appeals re-transfer him to his former and contends that the trial position
and location. disagree. We
Although N.C. Gen. Stat. 126-37 (1993) authorizes employee Commission to position reinstate an to the from which he is removed and to order employee the transfer of an to whom it has wrongfully denied, been authority discretionary. compelled
is not to order Mr. posi- reinstatement to his former tion and location.
Furthermore, reinstatement as used in the North Carolina Administrative Code denotes following:
Reinstatement means the employment return to of a dismissed employee, in the position, same or similar pay grade same step employee enjoyed which the prior to dismissal. may promotion Reinstatement also refer to the of a demoted employee pay grade step same as the demoted from.
25 N.C.A.C. 1B.0428. was returned to step the same as before his demotion though even he works at a different location. Accordingly, he was reinstated and the trial court’s decision must be affirmed. foregoing reasons,
For the we affirm the trial court’s part, and reverse and remand oh the issue of fees.
Judge separate GREENE opinion. concurs with a Judge MARTIN,JOHN C. concurs.
Judge concurring. Greene fully majority opinion. regard I with Part II of the With concur analysis *7 III, disagree but concur with the result. Parts I I Demotion findings (DOC) argues The that the Correction support by (Commission) its entered State Personnel Commission regard demotion and therefore the trial court conclusions with portion This reversing this of the Commission. Order by is the Commission’s Order affected raises the issue whether required law, review the of the and this Court is Order error Assocs., novo. Brooks v. & Commission de See Ansco . (“error of law . . if a con- exists by Thus, the supported findings fact”). ... is not clusion law support question findings is whether entered Commission “just for demo- its that there existed cause Petitioner’s conclusion majority I with the do not agree tion.” conclusion.
Transfer is (Myers) argues Glenn E. that if the order of demotion rescinded then it follows that the order of transfer must be rescinded doing disagree. transfer of and the trial court erred in not so. I subject jurisdiction a matter matter within 126-35(a) (1993) (providing Commission or the trial court. N.C.G.S. employee suspended, “discharged, State to Commission demoted”); (1993) (State N.C.G.S. 126-36 entitled cf. request appeal to transfer because of Commission where denied by the discrimination). Therefore, the transfer directed DOC remains language full and effect of the trial court force relating surplusage. the transfer is mere