HLD, v. 31, n. 1
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
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).