N.C. Dep't of Pub. Safety v. Ledford

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-595

Filed: 3 May 2016

Madison County, No. 14 CVS 30

NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Petitioner,

v.

CHAUNCEY JOHN LEDFORD, Respondent.

Appeal by Petitioner from order entered 29 December 2014 by Judge C. Philip

Ginn in Madison County Superior Court. Heard in the Court of Appeals 4 November

2015.

Attorney General Roy Cooper, by Special Deputy Attorney General Joseph

Finarelli, for Petitioner.

Leake & Stokes, by Larry Leake, for Respondent.

STEPHENS, Judge.

Petitioner North Carolina Department of Public Safety (“DPS”) appeals from

the trial court’s order affirming the Final Decision of the Office of Administrative

Hearings (“OAH”) by Senior Administrative Law Judge (“ALJ”) Fred G. Morrison,

Jr., in favor of Respondent Chauncey John Ledford on his claim for political affiliation

discrimination. DPS argues that ALJ Morrison erred in concluding that Ledford

satisfied his prima facie burden and proved by a preponderance of the evidence that

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the purportedly legitimate nondiscriminatory reasons DPS articulated for

terminating him were merely pretextual. We affirm.

Factual Background

Ledford was born on 8 July 1965 and grew up in Madison County, where his

father, a registered Democrat, served as a member of the Board of Commissioners for

20 years. In 1990, Ledford began a career in law enforcement as a Buncombe County

Deputy Sheriff. In September 1993, Ledford joined the Alcohol Law Enforcement

Division (“ALE”) as a Special Agent in its field office in Asheville, where he served for

just over five years and eventually attained the rank of Special Agent II, which was

the highest available under the Division’s then-extant system of classification. In the

years since, ALE has adopted a three-tiered system of classifying its Special Agents

based on their experience and competence into Contributing-, Journeyman-, and

Advanced-levels, with recurring postings for vacancies to provide opportunities for

lower level agents to compete for promotions between these ranks and pay increases

within them.

In November 1998, Ledford, a registered Democrat since the age of 18, was

elected Sheriff of Madison County. Although he resigned from his employment with

ALE at that time, Ledford subsequently rejoined ALE as a Special Agent Reserve in

2002 and continued to serve in that capacity throughout the next seven years of his

tenure as Sheriff.

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In October 2009, Ledford was appointed Director of ALE by Governor Beverly

Perdue upon the recommendation of her appointed Secretary of Crime Control &

Public Safety, Reuben Young. As Director of ALE, Ledford served in a policy-making

exempt position until the expiration of Governor Perdue’s term at the end of 2012.

During Ledford’s tenure as Director, ALE merged with several other State law

enforcement agencies into the newly created DPS, of which Young was named

Secretary. In January 2012, in his final performance evaluation as Director, Ledford

was assessed at the Advanced competency level and his performance was rated as

“Outstanding” by his superiors. Throughout his years in law enforcement, Ledford

completed hundreds of hours of advanced law enforcement training through the FBI

National Academy, the DEA Drug Unit Commanders Academy, and the State’s

Sheriffs Training Standards Division. He also became a certified general instructor

for the State, with a specialized firearms instructor certification, and taught courses

in ALE basic training programs and at the community college level.

In late 2012, Ledford decided that he wanted to return to the field as an ALE

Special Agent after his term as Director concluded. During a training exercise in

Wilmington in late October, Ledford approached Secretary Young about the

possibility of obtaining a reassignment to ALE’s district office in Asheville. Secretary

Young advised Ledford that although he was unfamiliar with the necessary

procedures for approving such a move, he was receptive to the idea, provided it could

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be done ethically and legally. The subject came up again several days later during a

meeting in Raleigh among Secretary Young, Ledford, Chief Operating Officer of DPS

Mikael Gross, Deputy Director of Operations for ALE Richard Allen Page,1 and

Director of Human Resources for DPS Alvin Ragland. After further discussion, Young

directed Ledford to begin the process of requesting a reassignment and also asked

Gross and Ragland to determine the legal and logistical requirements to facilitate the

process.

Pursuant to Young’s request, Gross asked ALE Deputy Director for Law

Enforcement Services Mark Senter whether there were any openings for a Special

Agent in the Asheville office. Senter advised Gross that although there was a vacant

position for a Contributing-level Special Agent in the Wilmington office, there were

currently no open postings in Asheville. However, Senter also determined, based on

a 2010 ALE needs-assessment and the recent retirement of an Asheville-based agent,

that there was a clear business need for an additional Special Agent in the Asheville

office, and that that need was greater than the need for an agent in Wilmington.

Gross concluded that pursuant to section 18B-500(g) of our General Statutes, which

provides authority for shifting ALE personnel from one district to another, see N.C.

1 ALE’s Deputy Director of Operations, Richard Allen Page, had also previously worked in the

Asheville office and made a similar reassignment request in late 2012 which followed a similar

approval procedure to the process discussed infra for Ledford’s request. Page was ultimately

reassigned to serve as the Special Agent in Charge (“SAC”) of ALE’s Asheville office, where he served

as Ledford’s supervisor until April 2013.

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Gen. Stat. § 18B-500(g) (2015), Secretary Young could lawfully transfer the vacant

Wilmington Special Agent position to the Asheville office and reclassify it from the

Contributing-Level to the Advanced-Level to reflect Ledford’s competency level.

Senter consulted with DPS Deputy Director of Human Resources, Tammy Penny,

who advised him that “the position would still have to be posted . . . . to ensure we

meet the statut[ory] requirement [imposed by N.C. Gen. Stat. § 126-7.1(a)] to make a

position vacancy available via a minimum of a 5[-]day posting except for certain

situations defined in policy” by the Office of State Personnel (“OSP”) and in the State

Personnel Manual. After consulting Section 2, Page 21 of the State Personnel

Manual, which provides guidelines for the recruitment and posting of vacancies and

lists examples for which posting requirements are inapplicable, Gross concluded that

the vacant Special Agent position would not need to be posted publicly or as part of

ALE’s internal competitive applications process. In addition, based on their review of

Section 4 of the State Human Resources Manual, which governs salaries for State

employees who are demoted or reassigned, Gross and Senter determined that

Ledford’s salary would have to be reduced to the maximum available for an Advanced-

level Special Agent.

Meanwhile, Ragland contacted the Interim Director of OSP, Ann Cobb, to

inquire regarding the legality of Ledford’s requested reassignment. Cobb informed

Ragland that such a reassignment was legally permissible. Cobb later testified that

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although she advised Ragland that “the reassignment technically could be done, that

an agency head can waive posting, can transfer a position and have a reassignment

down of an employee,” she also sounded a note of caution that such a reassignment

“was something to be very careful with, that there needed to be a strong business case

for doing it, and that it could be challenged by employees or applicants who were

interested in those positions.” Cobb testified further that she advised Ragland that

because Ledford needed three more years of service before he qualified as a career

State employee, he would not be entitled to the protection from termination afforded

to such employees, which meant that a new administration could terminate him

without just cause.

On 27 November 2012, Ledford formally requested reassignment from his

position as Director to a position as a Special Agent in Asheville, effective 1 January

2013. In a memorandum to Secretary Young, Ledford stated that it was his

understanding that “because my current salary exceeds the maximum pay grade for

the Special Agent position, [OSP] requires a salary reduction to the maximum of my

assigned position.” On 29 November 2012, Ledford signed a Personnel Action

Clearance (“PAC”) Form requesting reassignment to an Advanced-level Special Agent

position with a salary set at $65,887.00, which was the maximum available for his

requested position and represented a 41% reduction from his $110,667.00 salary as

ALE Director. Ledford later testified that the purpose of this PAC Form was to ensure

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that every individual who needed to review the propriety of the requested personnel

action had the opportunity to do so as it moved through the approval process, and

that his signature as “Division Director” was required to verify that his most recent

employee performance evaluation was consistent with the action recommended. The

form was subsequently approved and signed by Gross as Deputy Secretary for DPS,

Ragland for Human Resources, Marvin Mervin for Fiscal, and Secretary Young.

Young also cleared the request with Governor Perdue’s office, which advised him that

as long as the move was legal, the Governor had no objections. On 19 December 2012,

Young issued a memorandum approving Ledford’s reassignment request to a Special

Agent position in ALE’s Asheville office. The position was formally transferred on 1

January 2013, and Ledford began his new employment as an Advanced Special Agent

for the Asheville ALE office the next day.

In the months following his return to the field, Ledford led all agents in his

new district in arrests made, and his supervisors did not receive any complaints about

his performance. However, Gross, who served as DPS liaison for Republican

Governor-elect Pat McCrory’s Justice and Public Safety transition team in December

2012, subsequently testified that when he was asked during a transition team

meeting whether or not any exempt DPS employees were being moved to non-exempt

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positions, he replied that Ledford was one of three such DPS employees. 2 Gross

testified further that after news broke of Ledford’s reassignment, he received a phone

call from Henderson County Republican State Senator Tom Apodaca, who informed

Gross that Ledford’s reassignment “shouldn’t have occurred and that they’re going to

fix that if they even have to just get rid of the position in the budget.” Gross then

reported Apodaca’s statement to incoming-DPS Secretary Kieran J. Shanahan two

days before Shanahan’s scheduled swearing-in. Gross testified that during their time

together on the transition team, he and Shanahan had had “intimate conversations

about personnel, personnel decisions, transition, [and] recommendations for

employment” within DPS. When Gross conveyed Apodaca’s statement to Shanahan,

Shanahan agreed, stating, “Well, you know, [Ledford’s reassignment] really shouldn’t

have happened.”

On 6 February 2013, ALE Advanced-level Special Agent Kenneth Simma filed

a grievance with the SAC of his district alleging that Ledford’s reassignment, which

Simma referred to as a “demotion,” was “in direct violation of the existing [ALE]

policy and contrary to all existing statute[s].” Specifically, Simma complained that

Ledford’s new position should have been posted so that other Advanced-level ALE

Special Agents could have had an opportunity to compete for the higher pay that

2 The other two exempt DPS employees moved to non-exempt positions were Page and the former

Director of Prisons. There is no indication in the record before us that either was investigated or

disciplined as a result of their reassignments.

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accompanied it. Simma also questioned Ledford’s qualifications for an Advanced-level

position, and alleged that Ledford’s new salary created a division-wide salary

inequity. Simma’s grievance was denied by his district’s SAC on 8 February 2013,

and by ALE Acting Director Senter on 13 February 2013, both of whom concluded

that the matters Simma raised in his grievance were non-grievable issues.

Simma subsequently testified that he had previously been subjected to

disciplinary action by Ledford when Ledford was ALE Director; that he had received

outside assistance in preparing his grievance; and that he shared his grievance with

another ALE Advanced-level Special Agent, Patrick Preslar, who then filed a nearly

identically worded grievance against Ledford on 15 February 2013. Preslar’s

grievance was denied as non-grievable by his district’s SAC on 19 February 2013, and

Senter reached the same conclusion on appeal on 25 February 2013. Both Simma and

Preslar appealed the denial of their grievances directly to Secretary Shanahan, who

likewise concluded that the issues they raised were non-grievable, and thus denied

their appeals. Shanahan outlined his reasoning in a memo addressed to Simma dated

4 March 2013, in which he explained that Simma’s allegation of a division-wide salary

inequity did not constitute a dispute over performance pay and was not timely filed;

that despite Simma’s complaint that Ledford’s new position should have been posted,

the ALE’s Grievance Policy “does not afford employees a right to file a grievance for

failing to post a vacant position”; and that although ALE agents could grieve a “denial

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of promotion due to failure to post,” they could only prevail “when such failure

arguably resulted in the grievant being denied a promotion,” a requirement that

Simma could not satisfy since he was already an Advanced-level Special Agent.

Shanahan stated similar bases for rejecting Preslar’s appeal.

The grievances Simma and Preslar filed against Ledford were also reviewed

by DPS Employee Relations specialist Margaret Murga. On 19 February 2013, Murga

sent an email to DPS deputy general counsel Joseph Dugdale inquiring whether he

had reviewed the grievances. Neither Murga nor Dugdale had any involvement in

Ledford’s reassignment, but on 25 February 2013, Dugdale replied via email to Murga

that the issues raised by Simma and Preslar were non-grievable and that the

“position did not have to be posted in this case because G.S. 126-5(e) specifically

allows the [DPS] Secretary to demote an exempt employee from his or her position in

the department.” Dugdale stated further that 25 NCAC 01h. 0631(e)(8) provides an

exemption from the general posting requirement for “[v]acancies to be filled by an

eligible exempt employee who has been removed from an exempt position and is being

placed back in a position subject to all provisions of the State Personnel Act.” The

next day, after Murga replied to ask Dugdale whether Ledford had been demoted or

reassigned, Dugdale responded that Ledford “was transferred to a lower position, his

salary was reduced and his responsibilities are less demanding; therefore it is a

demotion.” In response, Murga sent Dugdale an email with the notation “fyi” and a

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26-page attachment that included documentation from Ledford’s reassignment. On

27 February 2013, Dugdale replied to Murga that he had reviewed the documents she

had sent him, believed they “tend[ed] to shed a somewhat different light on what

happened in the ‘reallocation’ of Director Ledford,” and posed a list of approximately

10 follow-up questions for Murga to investigate, including whether Ledford had been

reassigned to a vacant position or had been transferred into a newly created position;

whether the position was required to be posted; whether Ledford’s transfer should

have been approved by OSP and, if so, whether it had been and by whom; and whether

it was normal practice for Gross to have signed off on Ledford’s PAC Form as Deputy

Director.

In the weeks that followed, Murga reviewed ALE and OSP policies regarding

salary and posting requirements; found evidence of three or four instances in 2012

when openings for Advanced-level ALE Special Agent positions had been posted

internally for competitive applications; confirmed that Ledford’s new position had

originally been classified as a Contributing-level opening in ALE’s Wilmington office;

and concluded that Ledford’s position had never been posted, nor had an updated job

description been provided, nor had OSP given approval to re-classify it from the

Contributing- to the Advanced-level. However, Murga later testified that she was

unaware that there had been a need for another Special Agent in the Asheville office

since 2010, and she also acknowledged that she had been unable to fully answer

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several of Dugdale’s questions—and had provided erroneous answers to others—

because she did not speak to anyone involved in the decision-making process for

Ledford’s reassignment during her investigation into Ledford’s reassignment.

At some point, Dugdale advised Commissioner of Law Enforcement Frank

Perry that Murga had discovered that “there was more to [the] story” of Ledford’s

reassignment, and Perry urged Dugdale to continue to articulate, record, and discuss

the findings from Murga’s investigation. In early March, Murga and Dugdale met

with several OSP representatives, who informed them that Ledford’s new position

should have been posted. Murga then relayed her findings to her supervisor, DPS

Employee Relations manager Kim Davis-Gore. On 14 March 2013, Murga and

Dugdale shared the results of their investigation with Perry during a brief meeting.

That same day, Dugdale authored a memo to Perry in which he explained that Davis-

Gore had consulted with HR and OSP regarding the alleged irregularities involved

in Ledford’s reassignment and “provided what they consider to be two (2) viable

options” for addressing the situation. As Dugdale explained:

Option 1 is to simply ignore the irregularities and maintain

the status quo. Option 2 is to undo the wrong by moving

the position back to Wilmington and readjusting it back to

the contributing competency level since there is no

supporting documentation to justify why it was upgraded

other than to accommodate Director Ledford’s request for

a reallocation. They believe, however, that because John

Ledford is currently in the position, he should be afforded

an opportunity to transfer with the position.

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Despite Davis-Gore’s recommendations, Dugdale opined in his memorandum to Perry

that while he agreed that affording Ledford the opportunity to transfer to Wilmington

“is an option,” he did not agree that it was required because Ledford “is not a career

state employee and, therefore, is not afforded the protections of the State Personnel

Act.” Nevertheless, as Dugdale also cautioned, “It should be pointed out that

[Ledford] most likely will challenge [DPS] in either event arguing that the decision

to move the position was based on his political affiliation” in violation of section 126-

36 of our General Statutes, and thus DPS would “need to show that whatever action

is taken, is based on an identifiable legitimate business need.”

On 10 April 2013, Ledford received a telephone call from ALE Acting Director

Senter, who informed Ledford that he had been ordered to terminate Ledford’s

employment and would be forwarding a memorandum authored by Perry (“the Perry

Memo”) explaining the reasons for this decision. The Perry Memo, a version of which

was hand-delivered to Ledford later that day,3 explained that DPS’s Employee

Relations Section had “uncovered ethical and legal concerns” while reviewing the two

grievances filed against Ledford’s reassignment. Specifically, the Perry Memo

characterized the fact that Ledford had signed the PAC Form he used to request his

3 As detailed infra, the version of the Perry Memo that Ledford received was dated 9 April 2010 and

had not been signed by Perry. However, it became clear during the subsequent OAH hearing that

Perry had signed a different version of the memo dated 10 April 2013, which DPS considered the

official copy. Ledford’s counsel cross-examined Perry extensively on the differences between these two

versions, which were stylistic, rather than substantive.

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reassignment on the line designated for the ALE Director’s signature as an

“inappropriate deviation from normal practice [which] had the effect of sending a

clear message that neither [HR] nor Fiscal had any real authority to deny your

request.” The Perry Memo also took issue with Ledford’s salary, deeming it excessive,

given that it made Ledford the highest-paid ALE Special Agent in the State, and in

violation of State Personnel policy. Further, the Perry Memo stated that there had

been no legitimate business need to transfer any Special Agent position from

Wilmington to Asheville or to reclassify it from the Contributing-level to the

Advanced-level, and that even if there had been a legitimate business need, the

position should have been posted internally for competitive applications as required

by State law and departmental policy. In light of the fact that Ledford did not qualify

as a career State employee, the Perry Memo determined there was no lawful

authority for Ledford’s reassignment from his exempt position as Director to a non-

exempt position, and therefore concluded that Ledford’s “so-called ‘reassignment’ was

nothing more than an attempt to circumvent the provisions of the State Personnel

Act in that, at the time you submitted your request, you knew a new Department

Head would be appointed effective January 1, 2013,” once Governor McCrory took

office, “and that it was inevitable that you would be separated from state service.”

Finally, as the Perry Memo summarized, Ledford

either knew, or should have known: 1. that your

reassignment circumvented the existing statutory scheme

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pertaining to policy exempt employees; 2. that by

reassigning yourself to a position to which you were not

entitled, you violated the promotional rights of subordinate

employees; 3. that, even if you were entitled to a

reassignment to a Special Agent position, the salary

requested and approved is excessive pursuant to state

personnel policy; and 4. the approved salary amount

exceeds the salary of every other Special Agent in the

division, thereby creating an unwarranted salary inequity.

As ALE Director, you knew or should have known that you

did not have any reassignment rights, that it was

inappropriate to reallocate and subsequently transfer a

position for any purpose other than a legitimate business

need, that the position you were “reassigned” to was

required to be posted, and that your new salary was clearly

excessive. Accordingly, your participation in the events

described herein cannot be viewed as anything less than

unacceptable personal conduct on your part.

The Perry Memo concluded by informing Ledford that he would be terminated

effective immediately, that he had no right to appeal the decision, and that his

position in Asheville would be moved back to Wilmington and reclassified at the

Contributing-level due to the “total lack of any identifiable legitimate business need

to justify” the original transfer. The Perry Memo was subsequently released to the

media. On 17 April 2013, Secretary Shanahan sent an email to Governor McCrory’s

Chief of Staff, Thomas Stith, detailing several scheduled public forums and providing

a link to a news story on the Asheville Citizen-Times website covering Ledford’s

termination. In his email, Shanahan advised, “Thought you and G should be aware

of Ledford dismissal—done by the book. Assume it will be appealed.”

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Procedural History

On 8 May 2013, Ledford filed a petition for a contested case hearing with the

OAH, alleging that his dismissal was without just cause and resulted from

discrimination based on his political affiliation in violation of N.C. Gen. Stat. § 126-

34.1(a)(2)(b) (2011), repealed by 2013 N.C. Sess. Law 382, § 6.1.4 On 16 August 2013,

DPS filed a motion to dismiss Ledford’s claim for dismissal without just cause, given

the fact that Ledford was not a career State employee, as well as a motion for

summary judgment regarding Ledford’s political affiliation discrimination claim. By

order entered 1 November 2013, ALJ Morrison granted DPS’s motion to dismiss

Ledford’s claim for dismissal without just cause, but denied the motion for summary

judgment.

A three-day hearing on Ledford’s political affiliation discrimination claim

began on 2 December 2013 with ALJ Morrison presiding. During the hearing, Ledford

testified that he had requested to be reassigned as a Special Agent because he missed

working in the field and wanted to continue serving the State. Ledford testified

further that apart from making initial inquiries about the proper way to return to the

field, he was minimally involved in the decision-making process surrounding his

reassignment and that Gross and Ragland had researched the appropriate

procedures and told him that everything checked out. Ledford denied the Perry

4 Ledford’s petition was timely filed before our General Assembly’s repeal of section 126-34.1 became

effective on 21 August 2013.

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Memo’s accusation that he approved his own reassignment, testified that it was his

regular duty as ALE Director to sign employee PAC Forms in order to verify that

their most recent performance evaluations were consistent with the personnel actions

recommended, and explained that he had signed his own PAC Form in order to ensure

that every individual who needed to review the propriety of his requested

reassignment had the opportunity to do so as it moved through the approval process.

Ledford also testified that there had indeed been a legitimate business need to

reallocate a Special Agent position to Asheville, and noted that irrespective of the

Perry Memo’s promise to move the vacancy back to Wilmington, the number of ALE

Special Agents in the Asheville office had remained the same as before his dismissal.

Regarding his salary, Ledford testified on cross-examination, “The extent of my

involvement in the setting of my salary was somebody walked into [my office] and

handed me a piece of paper that says, you’re taking a 41 percent reduction in pay,

and this is your salary. And that’s it.” In addition, Ledford testified that not all

vacancies that had arisen during his tenure as ALE Director had been posted, and it

was his understanding that OSP and the State Personnel Manual provided for

exceptions from the general posting requirement. Regarding his dismissal, Ledford

noted his surprise to learn that he was even being investigated, let alone terminated,

in light of the ALE’s then-extant disciplinary procedures, which required that all

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employees, including probationary employees, be advised of any allegations against

them and afforded an opportunity to respond before being subjected to discipline.

Ledford also presented testimony during his case-in-chief from Gross, who

testified about the phone call he received from Senator Apodaca and incoming-

Secretary Shanahan’s reaction to it. When DPS objected to this testimony on the basis

of hearsay, the following exchange occurred:

[DPS Counsel]: Objection, Your Honor. I don’t believe

Senator Apadaka [sic] is a witness here today. He hasn’t

been identified. We’re into hearsay testimony now for sure.

THE COURT: Well, he can say that he got a call.

[DPS Counsel]: And that wasn’t my objection, Your Honor.

He’s testifying to exactly what Senator Apadaka [sic] may

or may not have told him, which is not just, I received a

phone call from Senator Apadaka [sic]. I wouldn’t have an

objection to hearsay on that grounds because he’s not

getting into the truth of what’s been asserted.

THE COURT: Well, I tell you, because he’s an officer of the

[c]ourt, an attorney and all, and the OAH rules provide

that an ALJ can admit any evidence that has probative

value and determine what weight to give it, I’m going to

overrule the objection and let him testify because hearsay

is if it’s unreliable and all, so I overrule.

Gross also testified that he reviewed Section 2, Page 21 of the State Personnel Manual

and concluded that the position to which Ledford was reassigned did not need to be

posted because it fit the exception for a vacancy “to be filled by an eligible exempt

employee who has been removed from an exempt position and is being placed back in

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a position subject to all provisions of the State Personnel Act.” Regarding Ledford’s

salary, Gross testified that he and Senter determined that State policy required that

it be set at the maximum available rate for an Advanced-level Special Agent based

on their review of Section 4, Page 29 of the State Human Resources Manual, which

provides that “[w]hen the employee’s current salary is above the maximum of the

range for the lower class, the salary shall be reduced at least to the maximum of the

lower range.” Gross acknowledged that Ledford’s new salary might not have been

popular among the ALE’s ranks because, as he explained,

I’ve worked for ALE for a number of years and I’ve worked

in State government for a lot of years. And when it comes

to salary, everybody is unhappy. I don’t believe that any

one person in ALE who [has] ever watched somebody else

get promoted has not said, “They don’t deserve it,” or, “I

would have done a better job.” I believe that no matter who

would have been put in [Ledford’s] position, no matter if

anybody made $1,000 more, somebody else would have said

“There’s an inequity,” and they would have thought that it

was grievable.

Nevertheless, Gross testified that Ledford’s salary did not result in a grievable

inequity because State policy required it and also because the next highest paid ALE

Advanced-level Special Agent at the time of Ledford’s termination had a salary of

approximately $61,000.00, and “in order for there to be a grievable inequity, there

has to be more than $10,000 between the person who is at top pay and the next person

below him.”

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In addition to Gross’s testimony, Ledford presented testimony from the other

individuals who were directly involved in the decision-making process that led to his

reassignment. Senter, Page, and Ragdale each testified that there had been a

legitimate need for an additional Special Agent in Asheville; that they believed OSP

regulations allowed for Ledford’s reassignment without posting the position and

required that his salary be set at the maximum rate available; and that they could

not remember a single previous instance when an ALE employee had been

terminated by telephone or any other method without first being advised of the

allegations against him and afforded an opportunity to respond to those allegations.

Indeed, Senter testified that although it was common for HR and DPS to review

grievances from ALE employees, he was unaware of any prior examples of such

reviews resulting in disciplinary investigations like the one conducted by Murga and

Dugdale. Both Senter and Page continued to work for ALE after the McCrory

Administration took office, but neither was approached by Murga, Dugdale, Perry, or

anyone else during DPS’s disciplinary investigation into Ledford’s reassignment.

Former Secretary Young testified that although he was unaware of any

previous instances of an ALE Director or other policymaking exempt employee being

transferred downward, he was certain that Ledford had not reassigned himself.

Young testified further that the ultimate decision to approve Ledford’s request was

his own to make; that he was satisfied that Gross, Senter, and Ragland had followed

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appropriate procedures in terms of transferring the position to Asheville and

reclassifying its experience level; and that neither OSP nor HR nor the Governor’s

office had objected. Young also testified that Ledford’s salary was legally permissible

and, although he conceded on cross-examination that in his view, Section 4 of the

State Human Resources Manual did not require Ledford’s salary to be set at the

maximum rate, he believed it was appropriate for an employee with Ledford’s

experience and qualifications. Indeed, Young testified that he believed it had been in

ALE’s best interests to retain Ledford as a Special Agent, given his longstanding

dedication to the Division and the fact that Ledford “was probably one of the most

hard-working and one of the most loyal employees I have ever worked with or had

ever been around. Quite frankly, in that position, I wish I would have had twenty

thousand more of [him].”

At the close of Ledford’s evidence, DPS made a motion for directed verdict in

its favor, which ALJ Morrison denied. Throughout its case-in-chief, DPS contended

that irrespective of whether Ledford could make out a prima facie case for political

affiliation discrimination, his claim should ultimately fail because his termination

was based on the legitimate, nondiscriminatory reasons detailed in the Perry Memo.

Murga and Dugdale testified about the investigation they undertook in response to

the grievances filed by Simma and Preslar. In keeping with testimony by Cobb and

Penny from OSP, both Murga and Dugdale testified that they did not believe OSP

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policy required Ledford’s new salary to be set at the maximum rate; that they did not

believe the exception to the posting requirement provided under Section 2, Page 21

of the State Personnel Manual that Gross had identified actually applied to Ledford’s

new position because in their view, Ledford did not qualify as an “eligible” employee,

given that he had not yet attained career status; and that once Ledford assumed his

new position, he was a non-exempt probationary employee who could be terminated

for any reason so long as the reason was not illegal.

Murga testified further that she was unable to find any evidence that OSP had

given approval to re-classify Ledford’s new position to the Advanced-level; that she

was unaware of any legitimate business need to transfer a position to Asheville; and

that she believed the position should have posted internally for competitive

applications as several other Advanced-level vacancies had been posted in 2012.

However, Murga acknowledged on cross-examination that she never spoke to anyone

who had been involved in the decision-making process for Ledford’s reassignment.5

Dugdale testified that although he initially believed Ledford’s reassignment was

proper when Murga brought her concerns to his attention, he now believed that he

5 For example, Murga reported to Dugdale that she did not know why Gross had signed off on Ledford’s

PAC Form instead of Chief Deputy Secretary Rudy Rudisell, who she believed should have signed the

form instead. However, during the OAH hearing, Ledford and Gross both testified that Rudisill had

been removed from the chain of command within ALE, leaving Gross to fill in and report directly to

Secretary Young. When Murga testified, she admitted she had not spoken to anyone involved in the

decision-making process for Ledford’s reassignment and was consequently unaware that Gross had

assumed Rudisill’s responsibilities. Murga agreed that in light of this news, it was appropriate for

Gross to have signed off on Ledford’s PAC Form and thus conceded that her answer to Dugdale’s

question had been erroneous.

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should have been consulted directly during the decision-making process. Dugdale

testified further that he viewed the fact that Ledford had signed off on his own PAC

Form as “totally inappropriate” and considered Ledford’s request for the maximum

available salary a “total breach of trust.” Dugdale also testified that although Murga’s

supervisor, Davis-Gore, had provided only “two viable options” for how DPS should

deal with the situation—either do nothing or else allow Ledford the opportunity to

transfer to Wilmington—the OSP representatives he and Murga had met with prior

to informing Davis-Gore of their investigation’s findings had indicated that they

would be “comfortable” with Ledford’s dismissal. Like Murga, Dugdale testified that

during the investigation of Ledford’s reassignment, he had not spoken to anyone

involved in the decision to approve Ledford’s request.

By the time of the hearing, Perry had been promoted by Governor McCrory to

the position of DPS Secretary. Perry testified that he first learned of Ledford’s

reassignment in the “Under the Dome” section of the News & Observer (Raleigh), but

did not look any deeper into the matter until Dugdale notified him of Murga’s

investigation, and that he never consulted with Secretary Shanahan or Governor

McCrory or anyone other than Dugdale or Murga about Ledford’s reassignment or

the two grievances filed against him. When asked on direct examination why he chose

to dismiss Ledford despite the fact it was not among the “two viable options” Davis-

Gore had recommended, Perry emphasized the total lack of any State or federal

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precedent to allow for an action like Ledford’s reassignment, which he believed, based

on his discussions with Dugdale and Murga, amounted to “simply self-dealing to the

level of a violation of law and policy.” When asked why he did not consult with anyone

who had been involved in the decision-making process for approving Ledford’s

reassignment, Perry stated that, “I felt to keep it clean, I need not consult others; and

I made the decision based on the evidence I saw.” When asked on cross-examination

on what specific evidence he based his determination that Ledford’s reassignment

violated State law and OSP policy, Perry alluded to the fact that Ledford’s new

position was never posted and his reassignment had not been approved by OSP.

However, Perry also conceded that he had no idea Cobb had been consulted as Interim

Director of OSP in 2012 and had advised that the reassignment was, in fact, legal.

When asked for specific evidence to support his conclusion that Ledford had

reassigned himself, Perry initially struggled to identify any basis to support his

accusations of self-dealing before eventually testifying that Young’s 19 December

2012 memo approving Ledford’s reassignment “says that he had requested the

assignment, ‘he’ being Ledford.” Perry subsequently conceded that such a request

would not itself be illegal, but insisted that “[i]t seems to me the reassignment in its

totality was a matter of violation of State law and [OSP] policy” and later clarified

that it was his understanding “that there was no precedent [for] this move, period.”

Throughout his testimony, Perry contended that the decision to dismiss Ledford was

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his alone; however, on cross-examination, Perry acknowledged that he was not the

author of the Perry Memo and that he did not know who wrote it or why two different

versions had been prepared. In addition, Perry acknowledged that after Ledford’s

dismissal, he signed a formal report to the Criminal Justice Enforcement and

Training Standards Commission that stated that Ledford had not been subject to any

investigation or inquiry concerning illegal or unprofessional conduct within 18

months of his dismissal.

On 31 December 2013, ALJ Morrison issued a Final Decision in this matter

finding in Ledford’s favor that his dismissal was the result of discrimination based

on his political affiliation. In his Final Decision, ALJ Morrison made factual findings

that Ledford was well-qualified to be an Advanced-level ALE Special Agent; that

former Secretary Young had acted pursuant to his statutory authority in approving

Ledford’s reassignment request; that upon learning of Ledford’s reassignment,

incoming Republican officials in Governor McCrory’s Administration had been

disappointed Ledford was no longer in a policy-making exempt position where he

would be subject to termination; that upon returning to the field in a non-exempt

position, Ledford performed very well; that Perry had made his decision to terminate

Ledford based largely on two already dismissed employee grievances despite the fact

that Perry “knew nothing about [Ledford’s] qualifications, never sought information

from him, Secretary Young, his deputies, or his HR personnel” and “also ignored

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suggestions from employee relations and state personnel representatives to maintain

the status quo or move the position and [Ledford] to Wilmington”; and that, contrary

to ALE’s internal disciplinary policy, Ledford was never given notice of the charges

against him or an opportunity to respond.6

Based on these findings of fact, ALJ Morrison concluded that Ledford had met

his prima facie burden “by establishing that he was a very prominent Democrat non-

policymaking employee of [DPS] brought in during a Democrat[ic] administration

who was hoping to continue his State employment under an incoming Republican

administration.” Moreover, Ledford had also established that DPS

treated him differently than other ALE Special Agents in

failing to follow its own ALE internal disciplinary policy by

not providing him notice of his being investigated; not

allowing him an opportunity to respond to the charges

against him by two disgruntled employees who[] had been

disciplined; not involving his immediate supervisors in an

investigation and decision to terminate his employment.

[Ledford] has also raised inferences by showing [DPS]

focused upon holding him responsible for actions by his

Democrat[ic] superiors in late 2012 and terminating him

6 ALJ Morrison also noted in his factual findings that DPS “failed to produce discovery in a timely

manner. Some was produced on the evening of the last business day before hearing and during the

hearing. This was prejudicial to [Ledford] as it required his counsel to spend excessive amounts of time

seeking production of the discovery and affected [Ledford’s] ability to conduct follow-up discovery and

adequately prepare the case.” We note here that the last business day before the hearing was the day

before Thanksgiving, and that after 6:00 that evening, DPS sent Ledford’s counsel an email with

numerous attachments that included, inter alia, the memorandum Dugdale wrote to Perry informing

him of the “two viable options” Davis-Gore provided for resolving the situation and other documents

that had never previously been provided. We also note, however, that it appears from the OAH

transcript these delays in discovery were not the fault of DPS’s counsel, who appears to have conducted

himself admirably under the circumstances given that, as he explained to ALJ Morrison, he, too, was

without access to these documents until he received them from DPS on the last business day before

the OAH hearing, when he was the only person left in his office and had to successfully navigate

technological setbacks in order to scan, download, and email them to Ledford’s counsel.

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without regard to the very good job he was doing as a field

agent in 2013; failing to provide a probationary employee

with any counseling or suggestions concerning how he

could improve his job performance; ignoring suggestions

from personnel and legal professionals to let the matter

rest or transfer the position with [Ledford] back to

Wilmington. The Republican transition team had inquired

about DPS plans to move any exempt employees into non-

exempt positions prior to the administration change and

were told of plans concerning [Ledford]. When informed

about a Republican State Senator’s negative remarks

concerning the personnel transaction, Republican

Secretary appointee Shanahan remarked “That should not

have happened,” indicating his state of mind coincided with

the senator’s and transition team’s concerning [Ledford].

Finally, Secretary Shanahan thought it important to send

an email at 9:47pm notifying the governor and his chief of

staff that [Ledford] had been terminated, which suggests a

political purpose was behind it. [Ledford] was a marked

man politically.

After determining that Ledford had established his prima facie case, ALJ Morrison

noted that the burden shifted to DPS to present evidence that Ledford’s termination

was based on a legitimate, nondiscriminatory reason and concluded that DPS had

met this burden of production “by establishing that two disgruntled, formerly

disciplined agents filed grievances complaining about how [Ledford] became a field

agent and his salary, which led to an investigation resulting in his termination

without following the ALE’s internal disciplinary procedures.” At that point, as ALJ

Morrison explained, the burden shifted back to Ledford “to prove that [DPS’s] reason

for terminating [Ledford] as it did was merely a pretext, and not a legitimate,

nondiscriminatory reason.”

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ALJ Morrison concluded that Ledford had met his ultimate burden of proving

by a preponderance of the evidence that the purportedly legitimate reasons DPS had

given to justify terminating Ledford were a pretext for political discrimination. In

support of this conclusion, ALJ Morrison explained that in addition to relying on

Ledford’s prima facie evidence, “it did not seem credible that [DPS’s] action was not

politically motivated,” given that Ledford

had been performing very well as a field agent. His

background, training, and experience qualified him very

well for the [A]dvanced-level position and approved salary.

It is more likely than not that had he not been such a

prominent, life-long Democrat from Madison County he

would not have been terminated, for the State needs such

well-qualified ALE Special Agents.

Terminating [Ledford] in disregard of ALE’s internal

disciplinary policy and past practices with other agents

indicates that it is more likely than not that political

affiliation was a factor. [DPS’s] primary concern appeared

to be to reverse the decision by Secretary Young to

demote/transfer [Ledford], with no regard to how he was

performing his duties as a field agent and without

exploring fairly all alternatives to termination. Secretary

Young had exercised due diligence prior to deciding to

demote/transfer/reassign [Ledford] who was at the time a

policymaking employee whose consent was unnecessary.

Based on these conclusions, ALJ Morrison ordered that Ledford be reinstated to his

position as an Advanced-level Special Agent in the Asheville ALE office at his

previous salary rate and paid all compensation he otherwise would have been entitled

to receive since the date of his dismissal, plus attorney fees and costs.

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On 30 January 2014, DPS filed a petition for judicial review in Madison County

Superior Court pursuant to section 150B-43 of our General Statutes. After a hearing

held on 1 December 2014, the court entered an order on 29 December 2014 affirming

ALJ Morrison’s Final Decision. On 30 January 2015, DPS filed notice of appeal to this

Court.

Analysis

DPS argues that ALJ Morrison erred as a matter of law in concluding that

Ledford’s termination resulted from political affiliation discrimination. We disagree.

Standard of Review

Section 150B-51 of our State’s Administrative Procedure Act (“APA”)

establishes the standard of review we apply when reviewing an ALJ’s Final Decision

and provides that while this Court may affirm or remand such a decision for further

proceedings, we may only reverse or modify such a 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 [ALJ];

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence admissible under

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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.

N.C. Gen. Stat. § 150B-51(b) (2015). Our Supreme Court has observed that the first

four grounds enumerated under this section “may be characterized as law-based

inquiries,” whereas the final two grounds “may be characterized as fact-based

inquiries.” N.C. Dep’t of Envtl. & Natural Res. v. Carroll, 358 N.C. 649, 659, 599

S.E.2d 888, 894 (2004) (citations and internal quotation marks omitted). Moreover,

“[i]t is well settled that in cases appealed from administrative tribunals, questions of

law receive de novo review, whereas fact-intensive issues such as the sufficiency of

the evidence to support [an ALJ’s] decision are reviewed under the whole record test.”

Id. (citation, internal quotation marks, and certain brackets omitted).

Under the de novo standard of review, the Court “considers the matter anew

and freely substitutes its own judgment. . . .” Id. at 660, 599 S.E.2d at 895 (citation,

internal quotation marks, and brackets omitted). However, our Supreme Court has

made clear that even under our de novo standard, a court reviewing a question of law

in a contested case is without authority to make new findings of fact. See id. at 662,

599 S.E.2d at 896 (“In a contested case under the APA, as in a legal proceeding

initiated in District or Superior Court, there is but one fact-finding hearing of record

when witness demeanor may be directly observed. Thus, the ALJ who conducts a

contested case hearing possesses those institutional advantages that make it

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appropriate for a reviewing court to defer to his or her findings of fact.”) (citations

and internal quotations marks omitted). Under the whole record test, the reviewing

court “may not substitute its judgment for the [ALJ’s] as between two conflicting

views, even though it could reasonably have reached a different result had it reviewed

the matter de novo.” Id. at 660, 599 S.E.2d at 895 (citation omitted). Instead, we must

examine “all the record evidence—that which detracts from the [ALJ’s] findings and

conclusions as well as that which tends to support them—to determine whether there

is substantial evidence to justify the [ALJ’s] decision.” Id. Substantial evidence is

“relevant evidence a reasonable mind might accept as adequate to support a

conclusion.” Id. (citations omitted). We undertake this review with a high degree of

deference because it is well established that

[i]n an administrative proceeding, it is the prerogative and

duty of [the ALJ], once all the evidence has been presented

and considered, to determine the weight and sufficiency of

the evidence and the credibility of the witnesses, to draw

inferences from the facts, and to appraise conflicting and

circumstantial evidence. The credibility of witnesses and

the probative value of particular testimony are for the

[ALJ] to determine, and [the ALJ] may accept or reject in

whole or part the testimony of any witness.

City of Rockingham v. N.C. Dep’t of Envtl. & Natural Res., Div. of Water Quality, 224

N.C. App. 228, 239, 736 S.E.2d 764, 771 (2012).

Background Law

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The sole issue before ALJ Morrison was whether Ledford was improperly

terminated from his position as an ALE Advanced-level Special Agent due to illegal

discrimination based on his political affiliation. On issues of employment

discrimination, North Carolina courts look to federal law for guidance. See N.C. Dep’t

of Corr. v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983). Our Supreme Court

has adopted the same three-pronged burden-shifting approach that the United States

Supreme Court uses for proving discrimination:

(1) The claimant carries the initial burden of establishing

a prima facie case of discrimination.

(2) The burden shifts to the employer to articulate some

legitimate nondiscriminatory reason for the [adverse

action affecting the employee].

(3) If a legitimate nondiscriminatory reason for [the

adverse action] has been articulated, the claimant has the

opportunity to show that the stated reason for [the adverse

action] was, in fact, a pretext for discrimination.

Id. at 137, 301 S.E.2d at 82 (citing McDonnel Douglas Corp. v. Green, 411 U.S. 792,

36 L. Ed. 2d 668 (1973)). As our Supreme Court observed in Gibson, “[t]he burden of

establishing a prima facie case of discrimination is not onerous” and “may be

established in various ways,” including a showing of dissimilar treatment of the

claimant as compared to other employees. Gibson, 308 N.C. at 137, 301 S.E.2d at 82-

83 (citations omitted). This is because

[t]he showing of a prima facie case is not equivalent to a

finding of discrimination. Rather, it is proof of actions

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taken by the employer from which a court may infer

discriminatory intent or design because experience has

proven that in the absence of an explanation, it is more

likely than not that the employer’s actions were based upon

discriminatory considerations.

Id. at 138, 301 S.E.2d at 83 (citations omitted).

If the employee succeeds in establishing a prima facie case for political

affiliation discrimination, “the employer has the burden of producing evidence to

rebut the presumption of discrimination raised by the prima facie case.” Id. (citations

omitted; emphasis in original). “To rebut the presumption of discrimination, the

employer must clearly explain by admissible evidence, the nondiscriminatory reasons

for the employee’s rejection or discharge.” Id. at 139, 301 S.E.2d at 84. If the employer

succeeds on this second prong, the burden then shifts back to the employee, who is

“given the opportunity to show that the employer’s stated reasons are in fact a pretext

for intentional discrimination.” Id.

Burden-shifting Prong 1: Ledford’s prima facie case

First element: non-policymaking position

DPS argues first that ALJ Morrison’s Final Decision must be reversed because

Ledford failed to establish a prima facie case of political affiliation discrimination

given that he obtained his position as an Advanced-level Special Agent through

“purely political machinations, and not through any competitive selective process.”

We disagree.

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This Court has explained that to meet the initial burden of establishing a

prima facie case for political affiliation discrimination, an employee must show that:

(1) the employee work[ed] for a public agency in a non-

policymaking position (i.e., a position that does not require

a particular political affiliation), (2) the employee had an

affiliation with a certain political party, and (3) the

employee’s political affiliation was the cause behind, or

motivating factor for, the . . . adverse employment action.

Curtis v. N.C. Dep’t of Transp., 140 N.C. App. 475, 479, 537 S.E.2d 498, 501-02 (2000).

The gravamen of DPS’s argument on this point appears to be that Ledford

cannot satisfy the first element required to meet his prima facie case. However, DPS

cites no authority to support its implicit premise that the purportedly improper

manner in which DPS alleges Ledford was reassigned to his position as an Advanced-

level Special Agent in ALE’s Asheville office somehow precludes him from qualifying

as having “work[ed] for a public agency in a non-policymaking position (i.e., a position

that does not require a particular political affiliation)[.]” Id. at 479, 537 S.E.2d at 501.

While this argument is certainly relevant to the second and third prongs of the

burden-shifting analysis our Supreme Court articulated in Gibson, we are wholly

unpersuaded it has any bearing on this specific issue. Moreover, our General Statutes

define an exempt policymaking position as a position

delegated with the authority to impose the final decision as

to a settled course of action to be followed within a

department, agency, or division, so that a loyalty to the

Governor or other elected department head in their

respective offices is reasonably necessary to implement the

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policies of their offices.

N.C. Gen. Stat. § 126-5(b)(3) (2015). Although Ledford’s prior position as ALE

Director certainly fits these criteria, the record is devoid of any evidence that “loyalty

to the Governor” is a required attribute of the ALE Special Agent position from which

Ledford was terminated, or that Ledford had any authority to “impose the final

decision as to a settled course of action to be followed within [ALE]” while serving in

that role. See id.; see also Curtis, 140 N.C. App. at 479, 537 S.E.2d at 502 (finding the

petitioner satisfied the first element of his prima facie case by demonstrating his job

in the Department of Motor Vehicles Enforcement Section “is not a policymaking

position for which a particular political affiliation may be required”). Consequently,

we find DPS’s argument on this issue to be without merit, and we conclude that

Ledford worked for a public agency in a non-policymaking position at the time of his

termination.

Third element: causation7

DPS argues next that Ledford failed to establish the third required element of

his prima facie case because there is no competent evidence in the record to support

any inference that Ledford’s termination was politically motivated. Specifically, DPS

complains that Gross’s testimony about the phone call he received from Republican

7We note here that DPS does not challenge whether Ledford met the second required element of his

prima facie case. Because the record includes substantial evidence of Ledford’s affiliation with the

Democratic party, see Curtis, 140 N.C. App. at 479, 537 S.E.2d at 502, we conclude that Ledford did

satisfy this element.

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State Senator Apodaca, and about incoming-DPS Secretary Shanahan’s reaction to

that call, was the only evidence that could support an inference of political

motivation, but that this testimony should have been excluded as inadmissible

hearsay. We are not persuaded.

Hearsay is “a statement, other than one made by the declarant while testifying

at trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C.

Gen. Stat. § 8C-1, Rule 801 (2015). Our State’s APA provides that in all contested

cases, “[e]xcept as otherwise provided, the rules of evidence as applied in the trial

division of the General Court of Justice shall be followed; but, when evidence is not

reasonably available under the rules to show relevant facts, then the most reliable

and substantial evidence shall be admitted.” N.C. Gen. Stat. § 150B-29(a). Title 26,

Chapter 3 of the North Carolina Administrative Code governs the procedures to be

followed during OAH hearings and provides that an ALJ “may admit all evidence

that has probative value.” 26 N.C.A.C. 03 .0122 (1) (2015).

In the present case, as noted supra, during the OAH hearing, Gross testified

over DPS’s hearsay objection that Apodaca told him Ledford’s reassignment

“shouldn’t have occurred and that they’re going to fix that if they even have to just

get rid of the position in the budget,” and that Shanahan had agreed that the

reassignment “really shouldn’t have happened.” When DPS objected that Gross’s

testimony was hearsay offered to prove the truth of the matter asserted, ALJ

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Morrison correctly noted that the OAH rules “provide that an ALJ can admit any

evidence that has probative value and determine what weight to give it” before he

admitted Gross’s challenged testimony.

Given that Ledford was not offering the statements by Apodaca and Shanahan

to prove the truth of the matters they asserted—that is, that his reassignment was

wrong and should not have occurred—but instead to show their existing mental

states and motives, we are unpersuaded by DPS’s argument that Gross’s challenged

testimony should have been barred as hearsay. See N.C. Gen. Stat. § 8C-1, Rule

803(3). Further, even assuming arguendo these statements were hearsay, our

General Assembly, through the Administrative Code, has entrusted ALJs with broad

discretion to admit probative evidence during administrative hearings, and we do not

view ALJ Morrison’s decision to admit Gross’s challenged testimony as an abuse

thereof. Indeed, Gross’s challenged testimony is highly probative of Ledford’s prima

facie case, insofar as it tends to show that even before Murga and Dugdale began

their disciplinary investigation into Ledford’s reassignment, a prominent Republican

lawmaker from Ledford’s part of the State voiced his displeasure that Ledford had

been reassigned to a non-policymaking exempt position and planned to take action,

if necessary through the budget process, to eliminate Ledford’s new position. The

challenged testimony also tends to show that Shanahan, the top political appointee

assigned by the McCrory Administration to run DPS, was aware of the partisan

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backlash to Ledford’s reassignment and agreed the reassignment should not have

occurred.8

DPS argues that even if Gross’s challenged testimony should not have been

barred as hearsay, it still should have been excluded as irrelevant and prejudicial.

Under Rule 401 of the North Carolina Rules of Evidence, evidence is “relevant” if it

has “any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401. However, evidence that is not

relevant is inadmissible, see N.C. Gen. Stat. § 8C-1, Rule 402, and even relevant

evidence “may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice.” N.C. Gen. Stat. § 8C-1, Rule 403. Here, while conceding

that “evidence of conduct or statements that both reflect directly the alleged

discriminatory attitude and that bear directly on the contested employment decision”

can constitute direct evidence of discrimination, Hill v. Lockheed Martin Logistics

Mgmt., 354 F.3d 277, 284-85 (4th Cir. 2004), abrogation on other grounds recognized

by Foster v. Univ. of Md.-E. Shore, 787 F.3d 243 (4th Cir. 2015), DPS insists that

Gross’s challenged testimony was irrelevant because the statements by Apodaca and

Shanahan in late 2012 were stray or isolated remarks unrelated to showing Perry’s

8 The challenged testimony also is highly probative of another element necessary to Ledford’s claim,

discussed infra, that the purportedly nondiscriminatory reason articulated by DPS for his termination

was pretextual.

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motivations for terminating Ledford in April 2013, and were also prejudicial because

they represented the only evidence that could support ALJ Morrison’s determinations

that Ledford “was a marked man politically” and that his termination was politically

motivated.

In support of this argument, DPS relies primarily on Perry’s testimony during

the OAH hearing that the decision to terminate Ledford was his alone, and that he

did not consult with Apodaca, Shanahan, or anyone other than Murga and Dugdale

in reaching that decision. However, the record in this case also includes evidence that

Shanahan treated the matter of Ledford’s reassignment as something of a priority,

given that he inquired about reassignments early on in the transition process and

subsequently considered Ledford’s termination important enough to advise the

Governor’s Chief of Staff about in a late-night email. Moreover, as discussed in

greater detail infra, our review of the record, including Perry’s testimony under cross-

examination, reveals that Ledford’s counsel raised serious doubts about the process

through which Perry reached his decision to terminate Ledford, as well as the

credibility of the purportedly legitimate nondiscriminatory reasons Perry and other

DPS witnesses articulated for Ledford’s termination. To the extent the evidence in

the record and testimony during the OAH hearing supports conflicting inferences, it

is well established that it is the ALJ’s prerogative and duty “to determine the weight

and sufficiency of the evidence” and “the credibility of witnesses and the probative

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value” of their testimony. City of Rockingham, 224 N.C. App. at 239, 736 S.E.2d at

771.

Furthermore, although DPS’s argument that the probative value of Gross’s

challenged testimony was far outweighed by its potentially prejudicial impact focuses

intensely on the last three sentences of a lengthy paragraph in which ALJ Morrison

determined that Ledford had satisfied his prima facie burden, we note here that the

very same paragraph of the Final Decision identifies several additional bases beyond

Gross’s challenged testimony to support this legal conclusion. Indeed, as ALJ

Morrison explained, the evidence in the record and the testimony introduced during

the OAH hearing tended to show that DPS: (a) never sought input from any of the

decision-makers behind Ledford’s reassignment in 2012 during its investigation into

and decision to terminate his employment; (b) failed to follow ALE’s internal

disciplinary policy and therefore DPS “treated [Ledford] differently than other ALE

Special Agents” by failing to provide him with notice that he was being investigated

or any opportunity to respond to the charges against him; (c) ignored “suggestions

from personnel and legal professionals to let the matter rest or transfer the position

with [Ledford] back to Wilmington;” and (d) “focused upon holding [Ledford]

responsible for actions by his Democrat[ic] superiors in late 2012 and terminat[ed]

him without regard [for] the very good job he was doing as a field agent in 2013.”

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As discussed infra, DPS argues that these additional bases were insufficient to

rebut the legitimate nondiscriminatory reasons it articulated to justify Ledford’s

termination under the second prong of the burden-shifting analysis established by

Gibson. However, the issue immediately before us is whether Ledford established a

prima facie case for political affiliation discrimination. Our Supreme Court has made

clear that this is not an onerous burden, given that it only requires “proof of actions

taken by the employer from which a court may infer discriminatory intent or design

because experience has proven that in the absence of an explanation, it is more likely

than not that the employer’s actions were based upon discriminatory considerations.”

Gibson, 308 N.C. at 138, 301 S.E.2d at 83. In summation, we conclude Gross’s

challenged testimony was highly probative and that, in light of the additional bases

articulated in ALJ Morrison’s Final Decision, its probative value was not

substantially outweighed by the danger of unfair prejudice. Accordingly, we hold that

ALJ Morrison did not err in admitting Gross’s challenged testimony or in concluding

that Ledford established a prima facie case for political affiliation discrimination.

Burden-shifting Prong 3: Pretext

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DPS argues next that ALJ Morrison erred in concluding that Ledford proved

the legitimate nondiscriminatory reason DPS articulated for Ledford’s termination

was merely a pretext for political affiliation discrimination. We disagree.

Our case law makes clear that once the employee has satisfied the three

elements of his prima facie case, the burden shifts to the employer to articulate some

nondiscriminatory reason for taking adverse action against him. Curtis, 140 N.C.

App. at 481, 537 S.E.2d at 503. The employer’s explanation “must be legally sufficient

to support a judgment” in its favor. Gibson, 308 N.C. at 139, 301 S.E.2d at 84. In

addressing the employer’s purported nondiscriminatory reason,

[t]he trier of fact is not at liberty to review the soundness

or reasonableness of an employer’s business judgment

when it considers whether alleged disparate treatment is a

pretext for discrimination.

....

While an employer’s judgment or course of action may seem

poor or erroneous to outsiders, the relevant question is

simply whether the given reason was a pretext for illegal

discrimination. The employer’s stated legitimate reason

must be reasonably articulated and nondiscriminatory, but

does not have to be a reason that the judge or jurors would

act upon or approve. . . .

* * *

The reasonableness of the employer’s reasons may of

course be probative of whether they are pretexts. The more

idiosyncratic or questionable the employer’s reason, the

easier it will be to expose it as a pretext, if indeed it is

one. . . .

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Id. at 140, 301 S.E.2d at 84 (citation omitted). Once the employer meets its burden of

production, “the burden then shift[s] back to [the employee] to prove [the employer’s]

alleged reason was in fact pretextual.” Curtis, 140 N.C. App. at 481, 537 S.E.2d at

503. To carry this burden, it is permissible for the employee to rely on evidence offered

to establish his prima facie case. Gibson, 308 N.C. at 139, 301 S.E.2d at 84.

In the present case, DPS argued during the OAH hearing and in its brief to

this Court that it terminated Ledford for the legitimate nondiscriminatory reasons

articulated in the Perry Memo. Specifically, DPS contends that Ledford improperly

exploited his power as a policymaking exempt political appointee to circumvent the

State Personnel Act’s requirements and reassign himself; that Ledford’s new position

was transferred without approval from OSP back to Ledford’s hometown without any

legitimate business need; that the position should have been posted internally for

competitive applications and the fact that it was not violated the promotional rights

of the ALE Special Agents Ledford once supervised; that Ledford’s salary in his new

position was excessive and created an unwarranted salary inequity within ALE; and

that there was no legal precedent or lawful authority to allow for Ledford’s

reassignment. Nevertheless, ALJ Morrison concluded that Ledford had met his

ultimate burden of proving by a preponderance of the evidence that the reasons DPS

articulated for his termination were merely a pretext. DPS argues this conclusion

was erroneous because the only direct evidence that Ledford’s termination was

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politically motivated came from Gross’s challenged testimony and further complains

that even if properly admitted, the statements by Apodaca and Shanahan, standing

alone, were insufficient to rebut the legitimate nondiscriminatory reasons DPS

articulated for Ledford’s termination. In support of this argument, DPS relies on this

Court’s decision in Enoch v. Alamance Cty. Dep’t of Soc. Servs., 164 N.C. App. 233,

595 S.E.2d 744 (2004).

In Enoch, the plaintiff was a female African American DSS employee who

alleged that she had been denied a promotion on two occasions due to race- and

gender-based discrimination. 164 N.C. App. at 235, 595 S.E.2d at 747. In 1999, the

plaintiff applied for the position of DSS program manager but was passed over in

favor of a white female who did not meet the minimum qualifications for the position.

Id. at 235, 595 S.E.2d at 748. When the plaintiff alleged during a subsequent meeting

with DSS’s then-director, Mr. Inman, that race had played a role in his decision to

hire the less-qualified white applicant, he replied: “You people always tend to want

to believe that there’s some race involved, there was no—that there’s discrimination

involved. There was no race involved in this decision.” Id. at 236, 595 S.E.2d at 748.

Inman later sent a letter to the plaintiff explaining his decision in greater detail, then

retired at the end of the year. See id. The plaintiff did not appeal this decision any

further, and in December 2000, she was one of three applicants for a newly created

program management position. See id. DSS’s new director, Ms. Osborne, reviewed

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their applications, determined that all three applicants met the minimum

qualifications, and “considered a number of factors in making her selection,”

including a structured interview, prior work evaluations, input from the management

team and each applicant’s subordinates about their interactions, consultation with

human resources, and the experience and educational backgrounds of each applicant.

Id. In addition, Ms. Osborne considered a list of desired qualities including “that of a

visionary who is progressive and flexible.” Id. at 244, 595 S.E.2d at 753. In 2001,

when Osborne chose a white male applicant for the promotion, the plaintiff filed a

petition for a contested case hearing with OAH. Id. at 241, 595 S.E.2d at 751. The

ALJ assigned to the matter held a three-day hearing and ultimately determined

based on 110 findings of fact and 86 conclusions of law that the decision not to

promote the plaintiff was made without discrimination. See id.

On appeal to this Court, the plaintiff challenged the ALJ’s conclusion of law

that DSS had successfully rebutted the presumption of discrimination by articulating

a legitimate nondiscriminatory reason under the second prong of the Gibson burden-

shifting analysis. Id. at 243, 595 S.E.2d at 752. We rejected that argument, explaining

that Osborne had articulated several desired qualities for the position and that there

was sufficient evidence introduced during the OAH hearing that the plaintiff

possessed fewer of these attributes than the other applicants. Id. at 244, 595 S.E.2d

at 753. The plaintiff also argued that the ALJ erred in concluding she had failed to

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show that DSS’s purported nondiscriminatory reason for not promoting her in 2000

was merely pretextual. Id. at 245, 595 S.E.2d at 753. Specifically, the plaintiff argued

that the ALJ had failed to consider the racial animus evidenced in the above-quoted

remark Inman made when explaining why he passed her over for a promotion in 1999.

Id. at 245-46, 595 S.E.2d at 754. We rejected that argument as well, explaining that

the plaintiff

offered no evidence linking the alleged prejudice of Mr.

Inman to the decision of Ms. Osborne. Thus, . . . the ALJ

was correct in concluding that the evidence surrounding

the 1999 passing over of [the plaintiff] lacked sufficient

probative value for inferring pretext in Ms. Osborne’s

nondiscriminatory reasons for hiring [the white male

applicant in 2001]. Ms. Osborne was not employed by . . .

DSS at the time of Mr. Inman’s 1999 decision to promote

[the white female applicant]; Mr. Inman was not employed

by DSS at the time of Ms. Osborne’s decision to promote

[the white male applicant]. Furthermore, Ms. Osborne had

supervised [the plaintiff] for the years of 1996-98. At no

time did [the plaintiff] allege that Ms. Osborne was

discriminatory in her evaluations, and these evaluations

were used by Ms. Osborne in her 2001 hiring decision.

Based upon the evidence before the ALJ, any inference of

prejudice surrounding the 1999 promotion did not extend

to Ms. Osborne’s 2001 decision.

Id. at 246, 595 S.E.2d at 754. In the present case, DPS argues that just as Inman’s

purportedly discriminatory remark in 1999 was insufficient standing alone to rebut

the legitimate nondiscriminatory reasons DSS articulated for its 2001 hiring decision

in Enoch, Gross’s challenged testimony about statements by Apodaca and Shanahan

was insufficient to show that DPS’s purportedly legitimate nondiscriminatory

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reasons for terminating Ledford four months later as articulated in the Perry Memo

and during the OAH hearing were merely a pretext for political affiliation

discrimination. However, this argument misconstrues our holding in Enoch. The

Enoch decision was based not only on the fact that the statement by Inman upon

which the plaintiff relied in her attempt to prove pretext was made two years before

the challenged hiring decision by Osborne, but also, more significantly, because there

was ample evidence in the record from the OAH hearing that demonstrated the

multiple nondiscriminatory criteria on which Osborne based her decision to promote

another applicant. See id. DPS’s argument presupposes that here, as in Enoch, there

was no other evidence apart from Gross’s challenged testimony to support ALJ

Morrison’s conclusion that Ledford satisfied the third prong of the Gibson burden-

shifting analysis. Our review of the record reveals that DPS’s reliance on Enoch is

misplaced.

During the three-day OAH hearing herein, ALJ Morrison heard extensive

testimony from Ledford and other current and former DPS and ALE officials involved

in the decision to reassign him regarding the process they followed, as well as

testimony from those responsible for DPS’s subsequent disciplinary investigation and

from Gross himself about the rationale for terminating Ledford. We reiterate here

that “it is the prerogative and duty of [the ALJ], once all the evidence has been

presented and considered, to determine the weight and sufficiency of the evidence

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and the credibility of the witnesses, to draw inferences from the facts, and to appraise

conflicting and circumstantial evidence.” City of Rockingham, 224 N.C. App. at 239,

736 S.E.2d at 771. “The credibility of witnesses and the probative value of particular

testimony are for the [ALJ] to determine, and [the ALJ] may accept or reject in whole

or part the testimony of any witness.” Id. ALJ Morrison’s Final Decision makes clear

that after carefully weighing the credibility and the probative value of particular

testimony, he concluded that the purportedly legitimate nondiscriminatory reasons

DPS offered for Ledford’s termination were not credible and, instead, were just a

pretext. Given how rapidly the Perry Memo’s rationales unraveled during the OAH

hearing, we find ample support for ALJ Morrison’s conclusion.

At the OAH hearing and in its brief to this Court, DPS repeatedly emphasized

the Perry Memo’s conclusion that Ledford reassigned himself. While this allegation

certainly makes for an incriminating sound bite, we find it highly misleading, given

that the evidence in the record tends to show that Ledford was minimally involved in

the decision-making process after he raised his reassignment request with Secretary

Young, who testified that he approved the request after consultation with other DPS

and ALE officials including Gross, Senter, and Ragdale. The only specific evidence to

the contrary that Perry could offer when he testified was that Ledford had made the

request himself and also signed his PAC Form on the line designated for the Director

of ALE. However, Ledford explained during his testimony that it was his regular duty

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to sign ALE employee PAC Forms in order to verify that their most recent

performance evaluations were consistent with the actions recommended, and that he

signed his own PAC Form to ensure that every individual who needed to review the

propriety of his requested reassignment had the opportunity to do so. Although the

Perry Memo alleges that by signing his own PAC Form, Ledford “sen[t] a clear

message that neither [HR] nor Fiscal had any real authority to deny [his] request”

and thus effectively exploited his position to intimidate others into complying with

his wishes, DPS presented no evidence during the OAH hearing to support this

allegation. Indeed, those involved in the process of approving Ledford’s reassignment

testified to the contrary, while Murga, Dugdale, and Perry himself acknowledged that

they made no efforts whatsoever to contact any of those individuals during their

investigation—despite the fact that at least two of them, Page and Senter, continued

to work for ALE and presumably could have shed at least some light on the internal

process that led to Ledford’s reassignment. This lack of communication may very well

explain why nobody involved in DPS’s investigation knew that there had indeed been

a legitimate reason to move Ledford’s new position to Asheville, or that Cobb had

approved Ledford’s reassignment on behalf of OSP in 2012, or that Gross had taken

on an expanded role in the Division’s chain of command.

DPS also contended that Ledford’s salary in his new position was excessive and

created a division-wide inequity. While there is some evidence that Gross was

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mistaken in his belief that Section 4, Page 29 of the State Human Resources Manual

required Ledford’s salary to be set at the maximum rate available, the plain language

of this policy clearly establishes that Ledford’s salary was in the legally permissible

range. Moreover, Shanahan determined that the allegations of a division-wide salary

inequity in the two grievances filed against Ledford were non-grievable issues, and

DPS points to no evidence that Gross was mistaken when he testified that “in order

for there to be a grievable inequity, there has to be more than $10,000 between the

person who is at top pay and the next person below him,” which was not the case

here.

In addition, DPS highlighted the Perry Memo’s determination that there was

no legitimate business reason to relocate Ledford’s new position from Wilmington to

Asheville or to reclassify it from Contributing-level to Advanced-level. However,

testimony introduced during the OAH hearing from Gross, Senter, Page, and Ragdale

regarding the 2010 assessment that found a need for an additional Special Agent in

Asheville flatly contradicts this assertion, as does evidence that even after Ledford’s

termination, an additional Special Agent remained in Asheville despite the Perry

Memo’s statement that the position would be moved back to Wilmington.

DPS also insisted that Ledford’s new position should have been posted

internally for competitive applications, based on testimony from Murga, Dugdale, and

others who did not believe the exception to the general posting requirement Gross

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had identified from Section 2, Page 21 of the State Personnel Manual applied to

Ledford.9 But such a determination does not necessarily support DPS’s claim that

Ledford’s reassignment violated the promotional rights of other ALE agents,

especially in light of the fact Shanahan rejected both grievances filed against Ledford

based in part on his determination that ALE “does not afford employees a right to file

a grievance for failing to post a vacant position” and that the Special Agents who

complained that Ledford’s reassignment without posting violated their promotional

rights had not raised grievable issues because they could not show that the failure to

post “arguably resulted in [each grievant’s] being denied a promotion.” Indeed, in

light of Ledford’s decades of experience, thousands of hours of advanced training, and

demonstrated loyalty to ALE, we find it hard to imagine how an applicant could be

more qualified to serve as an Advanced-level Special Agent, and despite its repeated

9 The relevant subsection here is labeled “Posting Requirements Not Applicable” and provides that:

“Posting is not required when an agency determines that it will not openly recruit. The decision shall

be based upon a bona fide business need and is the responsibility of the agency head. Examples include

vacancies which are: committed to a budget reduction; used to avoid a reduction in force; used to effect

a disciplinary transfer or demotion; to be filled by transfer of an employee to avoid the threat of bodily

harm; to be filled immediately to prevent work stoppage in constant demand situations, or to protect

public health, safety or security; designated exempt policymaking [G.S. 126-5(d)]; to be filled by chief

deputies and chief administrative assistants to elected or appointed agency heads[,] and vacancies for

positions to be filled by confidential assistants and confidential secretaries to elected or appointed

agency heads, chief deputies, or chief administrative assistants; to be filled by an eligible exempt

employee who has been removed from an exempt position and is being placed back in a position subject

to all provisions of the State Personnel Act; to be filled by a legally binding settlement agreement; to

be filled in accordance with a formal, pre-existing written agency workforce plan, including lateral

appointments resulting from the successful completion of the requirements for the Model Co-op

Education Program, the In-Roads Program or the Governor’s Public Management Fellowship

Program; to be filled immediately because of a widespread outbreak of a serious communicable disease,

and; to be filled as a result of a redeployment assignment.”

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claims that there was no legal precedent or lawful authority to allow for Ledford’s

reassignment, DPS has failed to identify any law or regulation that might expressly

prohibit it. Moreover, although Section 2, Page 21 of the State Personnel Manual does

not purport to provide an exclusive list of exceptions from the general posting

requirement, even assuming arguendo the position should have been posted, Davis-

Gore reviewed Murga’s investigation and concluded that DPS had “two viable

options” for handling this situation—namely, doing nothing or affording Ledford the

opportunity to transfer with the position to Wilmington. Terminating Ledford was

not among the options.

DPS complains that ALJ Morrison erred in identifying Perry’s failure to follow

Davis-Gore’s recommendations as an additional basis to support his conclusion that

the legitimate nondiscriminatory reason for terminating Ledford was merely a

pretext. In DPS’s view, this was wholly irrelevant and DPS raises similar objections

to ALJ Morrison’s focus in his Final Decision on the fact that, contrary to ALE’s

internal disciplinary procedure, Ledford was never provided any notice of the charges

against him or any opportunity to respond, as well as the fact that neither Murga nor

Dugdale nor Perry ever made any attempt to consult anyone involved in the decision-

making process that resulted in Ledford’s reassignment. DPS contends that the Final

Decision’s findings and conclusions on these points “merely serve[] to illustrate the

ALJ’s misunderstanding that as a non-career State employee, Ledford could be

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dismissed for any reason or no reason at all, just not an illegal reason.” DPS is correct

that once he returned to the field, Ledford was a probationary employee and had no

right to the protections provided under the State Personnel Act. In our view, however,

when combined with the aforementioned flaws in its stated rationale for terminating

Ledford—many of which seem to have resulted from DPS’s failure to consult anyone

involved in the reassignment—these decisions not to afford Ledford the same

procedural rights it customarily extended to all ALE employees, and not to follow the

“two viable options” recommended by its top personnel officer, strongly suggest both

that DPS was looking for any reason it could find to terminate Ledford and that the

purportedly legitimate nondiscriminatory reasons it articulated during the OAH

hearing were merely a pretext. As noted supra, “[t]he reasonableness of the

employer’s reasons may of course be probative of whether they are pretexts. The more

idiosyncratic or questionable the employer’s reason, the easier it will be to expose it

as a pretext, if indeed it is one.” Gibson, 308 N.C. at 140, 301 S.E.2d at 84.

During an OAH hearing, it is the ALJ’s duty to determine the weight and

sufficiency of the evidence and the credibility of the witnesses, whose testimony the

ALJ may accept or reject in whole or in part, as well as the inferences to be drawn

from the facts. City of Rockingham, 224 N.C. App. at 239, 736 S.E.2d at 771. In the

present case, we find strong support in the record for ALJ Morrison’s conclusion that

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Ledford proved by a preponderance of the evidence that his termination was the

result of political affiliation discrimination.

In its final argument, DPS warns in dire tones against the public policy

ramifications of allowing ALJ Morrison’s Final Decision to stand. Specifically, DPS

cautions this Court that our decision in this case might open the proverbial floodgates

to allow future administrations of both parties to frustrate our State’s democratic

ideals by entrenching partisan appointees before relinquishing power. Legal scholars

have long recognized the potentially deleterious effects of such practices in other

arenas. See, e.g., Jack M. Balkin & Sanford Levinson, The Processes of Constitutional

Change: From Partisan Entrenchment to the National Surveillance State, 75

Fordham L. Rev. 489 (2006) (analyzing the impact on our federal judiciary). While

acts of old school political patronage that turn the highest levels of State government

into a revolving door through which well-connected acquaintances of those in power

can gain prestige and lucrative remuneration at the taxpayers’ collective expense are

perhaps more publicized, on an abstract level the prospect of the old guard embedding

itself bureaucratically on its way out the door in order to stall its successors’ progress

strikes us as potentially being every bit as corrosive to the goal of representative self-

governance. Nevertheless, on a practical level, we find it difficult to discern how this

rationale applies in the case of a veteran law enforcement officer who has dedicated

his entire career to serving and protecting the people of this State, wishes to continue

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doing so in a role that has no clear impact on effectuating either party’s policy

priorities, and, unlike more common stereotypical well-heeled political appointees,

has no proverbial golden parachute to guarantee a comfortable landing in the private

sector. If our General Assembly is truly concerned with protecting North Carolinians

against such harms as DPS forewarns, it can take appropriate legislative action, but

this Court declines DPS’s invitation to turn Ledford into a scapegoat for all that ails

our body politic.

For these reasons, ALJ Morrison’s Final Decision is

AFFIRMED.

Judges STROUD and INMAN concur.

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