Respondent University of North Carolina at Greensboro Physical Plant (UNCG) appeals from judgment reversing the State Personnel Commission’s (SPC) “just cause” determination and remanding the matter to the SPC with the direction it be dismissed and appropriate relief accorded petitioner Carolyn Owen (Owen).
Owen was a career State employee, who worked at UNCG for approximately 17 years. During her tenure she held a myriаd of positions including “acting” UNCG Grounds Superintendent — a position she held from December 1985 to March 1986 at which time Charles Bell (Bell) was hired as “permanent” Grounds Superintendent. In 1987 Bell resigned and the Physical Plant Director appointed Chris Fay (Fay) as Grounds Superintendent.
In 1991 Owen was the supervisor of the grounds crew assigned to sanitation, work
On 22 November 1991, after “carefully [considering Owen’s] responsefs] to the issues raised in the meeting,” and “all the other [pertinent] information,” Fay notified Owen by letter (dismissal letter) that she was being dismissed for the following reasons:
First, I have found that while employees were working on a concrete job outside of Jackson Library in the last part of June you told a black employee, “If I was a black man, I would like to do this kind of work all day long.” This statement . . . was a racial, and sex-based slur . . . [and] is especially serious because it is a message to employees, from their supervisor, that work in the Grounds Division is assigned based on race and sex.... On other occasions, you have made comments such as “no man will ever meet my standards” and you have called employees “stupid.”
Second, after learning that emplоyees had complained to the management and to Human Resources about your conduct, you began to talk with employees to discourage pursuit of their complaints. Specifically, you distributed to three employees copies of discipline and notes about discipline you received last August. . . . You have also told employees, “If I go, I will take others with me.” Such statements and actions сonstitute attempts to intimidate employees and threatened reprisals if they persisted in complaining about your conduct.
Fay also noted the above conduct was “especially egregiоus” in light of the number of improper personal conduct warnings he had given Owen in the past.
On 6 April 1992, after exhausting UNCG’s internal appeal process, Owen filed a petition for a contested case heаring. On 8 July 1993 the SPC found UNCG’s “decision to dismiss Owen... [was] for just cause and not discriminatory on the basis of her sex.” In its order, the SPC made no findings on whether the dismissal letter notified Owen, with sufficient particularity, of the reasons for her dismissal.
On 9 August 1993 Owen filed а petition for judicial review. On 20 January 1995 the trial court, after finding the dismissal letter provided insufficient notice, held that “this case is reversed and is remanded to the [SPC] with the direction that the matter be dismissed against [UNCG] and that [Owen] be accorded the appropriate relief to which she is now entitled.”
On appeal UNCG contends the trial court erred by: (1) finding Owen preserved the issue of adequate notice for review; (2) rеversing the SPC’s decision on the ground the notice of dismissal was not sufficiently specific; and (3) finding UNCG lacked just cause to dismiss Owen.
We first consider UNCG’s allegation Owen did not properly preserve the issue of whether the dismissаl letter provided her with sufficient notice of the reasons for her dismissal and, therefore, the issue of adequate notice was not properly before the trial court.
In support of this contention, UNCG intеrprets N.C. Gen. Stat. § 150B-36(a) as requiring petitioners to provide specific exceptions to the Administrative Law Judge’s (ALJ) Recommended Decision prior to final agency decision. Relying on this interpretation, UNCG аrgues Owen did not specifically except from the AU’s Recommended Decision on the grounds of insufficient notice and, therefore, failed to preserve that issue for appeal.
As we must, we resolvе this contention by recourse to well settled principles of statutory construction. It is beyond question, “[statutory interpretation properly begins with an examination of the plain words of the statute.”
Correll v. Division of Social Services,
N.C. Gen. Stat. § 150B-36(a) provides, in pertinent part:
Before the agency makes a final decision, it shall give eаch party an opportunity to file exceptions to the decision recommended by the administrative law judge, and to present written arguments to those in the agency who will make the final decision or order.
Id. (1995). Clearly, section 150B-36(a), by use of the mandatory term “shall,” places an affirmative duty on the agency, in this case the SPC, to allow the parties an adequate opportunity to file exceptions tо the recommended decision of the AU. In contrast, the plain language of section 150B-36(a) in no way obligates petitioners to file specific exceptions to the recommended decision bеfore issuance of the final agency decision. To hold otherwise would require this Court to read language into the statute where none presently exists.
Nevertheless, Owen is still bound to the general rule of appellate procedure that this Court “will not decide questions which have not been presented in the courts below . . . .”
White v. Pate,
Because the issue of notice was properly preserved, we now consider UNCG’s contention the trial court erred by concluding Owen’s dismissal letter did not disclose, with sufficient particularity, the grounds for hеr dismissal.
This Court “may. .. reverse or modify the agency’s decision if the . . . findings, inferences, conclusions, or decisions are . . . [i]n violation of constitutional provisions [or] . . . [m]ade upon unlawful procedure . . . .” N.C. Gen. Stat. § 150B-51(b) (1995). When rеviewing an agency decision for constitutional or procedural errors, this Court applies
de novo
review.
Gainey v. N.C. Dept. of Justice,
Under federal due process an employee’s property interest in continued employment is sufficiently protected by “a pretermination opportunity to respond, coupled with post-termination administrative procedures . . . .”
Cleveland Bd. of Educ. v. Loudermill,
Nonetheless, “[a] wise public policy . . . may require that higher standards be adopted [by the State] than those minimally tolerable under the [United States] Constitution.”
Lassiter v. Department of Social Services,
No career State employee . . . shall be discharged . . . except for just cause. In cases of such disciplinary action, the employee shall, before the action is taken, be furnished with a statement in writing setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employеe’s appeal rights.
Id. (1995) (emphasis added).
This Court has interpreted section 126-35(a) as requiring the written notice to include a sufficiently particular description of the “incidents [supporting disciplinary action] ... so that the discharged employee will know precisely what acts or omissions were the basis of his discharge.”
Employment Security Comm. v. Wells,
In the present case, UNCG cited several alleged instances of misconduct as support for Owen’s dismissal, yet not a single allegation specifically named her accuser. Consequently, as the record clearly indicates, Owen was unable, at least initially, to correctly locate in “time or place” the conduct which UNCG cited as justification for her dismissal.
See Wells,
We also note UNCG’s failure to include the specific names of Owen’s accusers contravenes the legislative intent behind section 126-35(a). To hold otherwise would provide employers the opportunity to dismiss an employee on unfounded charges and then subsequently search for witnesses who are willing to testify as to the veracity of the stated justifications. Although the trial court found no evidence UNCG engaged in such spurious activity, we believe the procedural safeguards within section 126-35(a) serve as a prophylactic protection against summary dismissal based on inadequate notice.
See, e.g., Leiphart,
Accordingly, we affirm the judgment of the trial court and remand this case to the trial court for further remand to the SPC for further proceedings consistent with this opinion.
Affirmed and remanded.