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North Carolina Appeals Court Says State Employee's Dismissal Did Not Violate Due Process


HLD, v. 31, n. 1 (January 2003)

North Carolina Appeals Court Says State Employee's Dismissal Did Not Violate Due Process

The North Carolina Department of Health and Human Services (Department) dismissed Leon Kea, an administrator at a state facility for the mentally retarded, citing unacceptable personal conduct with respect to a subordinate female employee. Specifically, Kea was dismissed for (1) giving the employee preferential treatment, (2) sexually harassing her, (3) retaliating against her, (4) disobeying a direct order by reporting to work and discussing the investigation with staff while on investigative status, and (5) failing to follow certain facility procedures. Kea pursued various administrative avenues, seeking reinstatement with back pay and benefits. The State Personnel Commission (Commission) affirmed the dismissal. Kea appealed in state trial court. The court reversed the Commission's decision and ordered that Kea be reinstated and awarded back pay and benefits. According to the court, Kea "was not afforded constitutionally guaranteed due process by [the Department] during the process of his discharge" from the state facility. The Department appealed.

The North Carolina Court of Appeals reversed. As a threshold matter, the appeals court found that the lower court did not err in applying the de novo, as well as the whole record, standards of review because Kea presented questions of law and fact. Next, the appeals court concluded that the Department did not violate Kea's constitutional right of due process in dismissing him. In the instant action, Kea was dismissed for unacceptable personal conduct, which, under state law, does not require oral or written warnings or prior disciplinary action. As a state employee, Kea was entitled to a pre-dismissal conference and sufficient notification under N.C. Gen. Stat. � 126-35. "The fact that this notice was given simultaneously with the disciplinary action in this case is not a violation of N.C. Gen. Stat. � 126-35," the appeals court said. The appeals court also rejected Kea's contention that Frank Farrell, the individual who made the initial decision to dismiss him, was not impartial and unbiased as required by law. While Farrell may have reached certain conclusions regarding Kea before the predisciplinary conference, this fact alone did not mean he failed to meet the criteria of an impartial and unbiased decision maker. "The mere fact Farrell was familiar with the facts of [Kea's] case and acted as investigator and adjudicator on the matter is not a per se violation of due process," the appeals court observed. In addition, after reviewing the whole record, the appeals court concluded that substantial evidence existed to support the Commission's findings of fact and conclusion that Kea was dismissed for just cause based on unacceptable personal conduct. Accordingly, the appeals court reversed the trial court's judgment and remanded for reinstatement of the Commission's decision upholding Kea's dismissal.

A dissenting opinion argued that the appeals court was not in the position to order Kea's reinstatement. Instead, the dissent contended that remand was appropriate because the trial court failed to delineate which standard of review--whole record or de novo--it applied to each issue before it.

Kea v. Department of Health and Human Servs., O'Berry Ctr., 570 S.E.2d 919 (N.C. Ct. App. Nov. 5, 2002) (18 pages).

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