Boulware v. The Univ. of N.C. Bd. of Governors

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-840

Filed 05 July 2023

Forsyth County, No. 21CVS2973

KIENUS PEREZ BOULWARE, Petitioner,

v.

THE UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS, ex rel.

WINSTON-SALEM STATE UNIVERSITY BOARD OF TRUSTEES, Respondent.

Appeal by defendant from judgment entered 31 January 2022 by Judge Eric C.

Morgan in Forsyth County Superior Court. Heard in the Court of Appeals 7 June

2023.

Freedman Thompson Witt Ceberio & Byrd PLLC, by Christopher M. Watford,

for the petitioner-appellant.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Kari R.

Johnson, for the respondent-appellee.

TYSON, Judge.

Kienus Perez Boulware (“Boulware”) appeals from orders entered on 31

January 2022, which denied his request for relief and affirmed the decision of the

Winston-Salem State University (“WSSU”) Board of Trustees. We affirm.

I. Background

Boulware began his employment with WSSU on 4 January 2010. He was

employed as head coach for five years and agreed to a fixed-term contract for 48

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months set to terminate on 31 December 2020.

Boulware’s contract set forth his duties, which included management and

supervision of the football team as well as “other duties . . . as may be assigned.” The

contract stated he could be terminated for just cause for a significant or repetitive

violation of the duties set forth in the contract, as well as a “significant or repetitive

violation of any law, regulation, rule, constitutional provision or bylaw of the

institution.”

Boulware was assigned the duty of serving as a Campus Security Authority

(“CSA”), a person who assists the University in complying with The Clery Act, which

tasks universities with reporting crimes and keeping a public crime log. As part of

his training as a CSA, Boulware signed a letter that explained the types of crimes he

was obligated to report.

Our university has a responsibility to notify the

campus community about any crimes which pose an

ongoing threat to the community, and, as such, campus

security authorities are obligated by law to report crimes

to the university police department. Even if you are not

sure whether an ongoing threat exists, immediately

contact the university police department.

On 4 April 2019, two WSSU football players were involved in an altercation

during practice and fought again in the weightroom after practice. Boulware

intervened and sent the players home. Later that morning, he was informed the

altercation had reignited in the players’ dorm room.

On his way to the dorms, Boulware contacted the father of one of the students

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and he was informed of a possibility a gun was involved. Boulware arrived at the

dorm room with an assistant coach, engaged with the players, but did not contact

WSSU Police. The players were asked if there was a gun in the room. All answered

no and no formal search occurred. A bag with a substance, possibly marijuana, was

found in the room, but no gun was seen. Boulware gave the bag to the student’s

father, who had arrived, and he disposed of it. Boulware attempted to inform the

Athletic Director, but he could not reach him. He never informed the WSSU Police

Department or the Director of Athletics, instead contacting only the Office of Student

Conduct.

On 23 April 2019, Chancellor Elwood L. Robinson signed a Notice of Intent to

Discharge Boulware for cause. The Chancellor listed Clause 5 of the Boulware’s

employment contract, WSSU EHRA Personnel Policies, Section 300.2.1 of the UNC

Policy Manual and Section 611 of the Code of the University of North Carolina Board

of Governors. Those policies list causes for discharge including, but not limited to,

incompetence, unsatisfactory performance, neglect of duty, or misconduct that

interferes with the capacity of the employee to perform effectively the requirements

of his or her employment.

Boulware requested a hearing before the WSSU’s EHRA Grievance Committee

on 29 April 2019. The hearing was originally scheduled for 30 May 2019 but was

continued until 23 July 2019 per Boulware’s request. Boulware and WSSU were

represented by counsel at the hearing.

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After hearing evidence and testimony, the Grievance Committee recommended

Boulware’s termination be affirmed. The Grievance Committee drafted a decision

letter, which outlined the termination procedures for Boulware. The procedures

initially described and outlined in the letter applied to at-will employees, which did

not include Boulware, who held a non-faculty ERHA position exempt from the State

Human Resources Act. Consequently, the letter incorrectly stated it was being sent

to WSSU’s Board of Trustees, but the letter was instead re-routed to Chancellor

Robinson when WSSU attorneys realized the procedures described in previous letters

to Boulware were inconsistent with the UNC System’s Code. The decision letter

Boulware received outlined the wrong procedures, but the process was handled

correctly and properly sent to Chancellor Robinson. Boulware’s attorneys consented

to the change in procedure via email. Chancellor Robinson adopted the Grievance

Committee’s recommendation on 22 November 2019.

On 3 December 2019, Boulware gave notice of appeal to WSSU’s Board of

Trustees. The Board of Trustees issued its Final Decision upholding his termination

on 5 March 2020.

Boulware filed a Petition for Judicial Review requesting his termination of

employment contract be reversed on 1 June 2020. He asserted the WSSU Board’s

Final Decision violated his constitutional protections, was made upon unlawful

procedures, was affected by errors of law, was unsupported by substantial evidence,

and constituted an abuse of discretion.

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Boulware’s First Petition for Judicial Review was heard on 3 September 2020.

On 28 September 2020, Judge Gottlieb entered an order stating: “Boulware’s

grievance was properly referred to the Grievance Committee for an impartial, fact-

finding hearing and the Grievance Committee’s Recommendation was properly

issued.” However, the Court nevertheless concluded that, because of the procedural

errors, the review and decision were:

made upon unlawful procedure within the meaning

of N.C. Gen. Stat § 150B-51(b)(3); and (ii) was

affected by other error of law within the meaning of

N.C. Gen. Stat § 150B-51(b)(4).

The court vacated the final decision of the Board of Trustees and remanded the

matter for impartial review of the Grievance Committee’s Recommendation with

subsequent review, if necessary and requested, as provided by the UNC system’s

code.

The record, including the transcript from the Committee’s hearing, was

reviewed by Dr. Kimberly van Noort, Senior Vice President for Academic Affairs and

Academic Officer for The University of North Carolina System. Dr. van Noort issued

a decision on 15 December 2020 agreeing with the Grievance Committee’s

recommendation to terminate Boulware’s contract and employment. Boulware

responded by submitting a notice of appeal to the WSSU Board of Trustees.

WSSU’s Board of Trustees unanimously affirmed Dr. van Noort’s decision on

7 May 2021. Board Chair Harris and the original board attorney did not participate

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in the appeal, due to concerns raised by Boulware.

Boulware filed a Second Petition for Judicial review on 7 June 2021 based upon

the same contentions from the First Petition: asserting violations of constitutional

provisions; unlawful procedures; errors of law; lack of substantial evidence; and,

abuse of discretion. On 21 July 2021, Boulware requested Judge Gottlieb to rule upon

unresolved issues from the First Petition. After this hearing, Judge Gottlieb declined

to rule on the First Petition, ruling any unresolved issues from the First Petition were

intrinsically intertwined with the issues raised in the Second Petition. Anything not

specifically addressed in the prior order should be addressed in the Second Petition.

The case was heard on 11 January 2022. Judge Morgan issued his ruling,

consolidating both the First and Second Petitions, affirming the final decision of the

WSSU Board of Trustees, and denying all relief for Boulware on 31 January 2022.

II. Jurisdiction

Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2021).

III. Issues

Boulware argues the Final Decision to terminate his employment was not

supported by substantial evidence because all decisions were based on a

misapprehension of law.

Boulware also argues that the trial court erred as a matter of law because the

WSSU changed its justification for dismissing Boulware’s appeal post hoc after the

case was remanded for impartial review. Boulware lastly contends the conclusions

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of law are not supported by proper findings of fact because the substantive findings

are mere recitations of evidence.

IV. Standard of Review

This Court examines the trial court’s order for errors of law by completing two

steps: “(1) determining whether the trial court exercised the appropriate scope of

review and, if appropriate, (2) deciding whether the court did so properly.” Amanini

v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19

(1994).

The trial court’s review of the issues was governed by N.C. Gen. Stat. § 150B-

51 which reads in part:

(b) The court reviewing a final decision may affirm the

decision or remand the case for further proceedings. It may

also reverse or modify the decision if the substantial rights

of the petitioners may have been prejudiced because the

findings, inferences, conclusions, or decisions are:

...

(5) Unsupported by substantial evidence admissible

under G.S. 150B-29(a), 150B-30, or 150B-31 in view

of the entire record as submitted [ ]

...

(c) In reviewing a final decision in a contested case, the

court shall determine whether the petitioner is entitled to

the relief sought in the petition based upon its review of the

final decision and the official record. With regard to

asserted errors pursuant to . . . subdivisions (5) and (6) of

subsection (b) of this section, the court shall conduct its

review of the final decision using the whole record standard

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of review.

N.C. Gen. Stat. § 150B-51(b)-(c) (2021).

Under the whole record test, “if the agency’s findings are supported by

substantial evidence, they must be upheld.” Sack v. N.C. State Univ., 155 N.C. App.

484, 491, 54 S.E.2d 120, 127 (2002). Substantial evidence is “relevant evidence a

reasonable mind might accept as adequate to support a conclusion.” In re Denial of

NC Idea’s Refund, 196 N.C. App. 426, 433, 675 S.E.2d 88, 94 (2009) (internal citations

and quotations omitted).

V. Misapprehension of Law

Boulware argues the Final Decision to terminate his employment was not

supported by substantial evidence because all decisions were based upon a

misapprehension of The Clery Act. 20 U.S.C. § 1092(f) (2018) (tasking universities

with reporting crimes and keeping a public crime log). He argues WSSU relied upon

a misapprehension of The Clery Act as a basis for their argument against him, and

substantial evidence does not exist to support the Board’s decision. Id.

Substantial evidence tends to show Boulware engaged in a significant violation

of his assigned contractual duties. Boulware signed his CSA training letter on 7

November 2019 and acknowledged his awareness and understanding of his duty to

immediately report any on-going threats to the university’s police department even if

unsure whether an on-going threat existed.

Boulware testified he was aware of the possibility of a gun being involved in

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the altercation between his players, yet instead of contacting law enforcement, he

engaged with numerous people, including the agitated players and the father of one

of the players inside the dorm for over two hours. Despite being made aware of the

potential presence of a gun, Boulware never searched for one nor informed university

police of this allegation. This testimony alone is a substantial violation, and his

failure to comply risked serious harm or even death of students, staff, or the public.

Clear and substantial evidence of a violation of Boulware’s contractual

obligations was presented and substantiated his termination.

VI. Post Hoc Change in Justification

Boulware argues that the trial court erred as a matter of law because WSSU

changed its justification for dismissing Boulware post hoc after the case was

remanded for impartial review. He asserts the initial focus to justify the termination

of his contract was a violation of The Clery Act, but when Judge Gottlieb remanded

for an impartial review, WSSU utilized a different theory.

The initial letter of termination to Boulware from 25 April 2019 was introduced

at trial. In the opening sentences, the letter notifies the intent to dismiss based on

“WSSU EHRA Personnel Policies, Section 300.2.1 of the UNC Policy Manual and

Section 611 of The Code of the University of North Carolina Board of Governors.” The

letter describes Boulware’s failure to contact law enforcement and its potential

impact on campus safety. All of these assertions allegedly occurred before any

reference to The Clery Act. In the initial briefs to the Superior Court, WSSU asserted

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Boulware was terminated for failure to fulfill both his contractual and legal

obligations to notify university police officers of a serious safety concern. This

assertion is consistent with Dr. Van Noort’s impartial review after remand, as well

as the Board of Trustee’s decision, to unanimously uphold the review.

These documents from the hearings provide clear and substantial evidence

WSSU had stated numerous grounds for Boulware’s termination, beginning in the

initial letter. WSSU consistently maintained these arguments throughout the

multiple review levels, including the current appeal before this Court.

VII. Findings of Fact

Boulware contends the conclusions of law are not supported by proper findings

of fact because the substantive findings are mere recitations of evidence.

Judge Morgan’s Findings of Fact utilizes direct quotes from testimony.

Boulware does not identify any conflicts in the evidence or testimony, and he does not

challenge the sufficiency of the evidence to support any specific Finding of Fact. A

significant portion of the Findings of Fact Boulware cites as relying upon direct

testimony are taken directly from Boulware’s testimony, which neither side disputes.

“Where there is directly conflicting evidence on key issues, it is especially crucial that

the trial court make its own determination as to what pertinent facts are actually

established by the evidence, rather than merely reciting what the evidence may tend

to show.” Moore v. Moore, 160 N.C. App. 569, 572, 587 S.E.2d 74, 75 (2003) (internal

quotations and citation omitted).

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No conflicting evidence is shown, and Boulware does not contend the Findings

of Fact are not supported by the evidence. This Court has previously stated where

“[p]laintiff does not challenge any of the trial court’s findings of fact as unsupported

by the evidence[,]” the findings of fact “are binding on appeal.” Garrett v. Burris, 224

N.C. App. 32, 34, 735 S.E.2d 414, 416 (2012). Without conflicts in the Findings of

Fact, and no contention the Findings of Fact are not supported by competent

evidence, Boulware’s argument is overruled.

VIII. Conclusion

Boulware’s argument asserting the Final Decision to terminate his

employment contract was not supported by substantial evidence, due to a

misapprehension of The Clery Act, fails. Boulware’s clear violation of his employment

contract created grounds for termination whether or not The Clery Act was asserted

as a ground.

Boulware’s argument WSSU changed its justification for termination midway

through the legal process and reviews also fails. Documents entered at trial provide

clear and substantial evidence to support WSSU had stated multiple grounds for

Boulware’s termination, not solely his violation of The Clery Act. These factors are

found in the initial termination letter, and WSSU consistently maintained these

arguments throughout the multiple levels of review.

Boulware’s challenges to the substantive findings as mere recitations of

evidence and the purportedly unsupported conclusions of law are without merit.

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Boulware fails to identify any conflicts in the evidence or testimony and does not

challenge the sufficiency of the evidence as not supporting any specific findings of

fact. The Findings of Fact are binding upon appeal. Moore, 160 N.C. App. at 572,

587 S.E.2d at 75; Burris, 224 N.C. App. at 34, 735 S.E.2d at 416. These findings of

fact support the conclusions of law. The order appealed from is affirmed. It is so

ordered.

AFFIRMED.

Judge MURPHY and Judge STADING Concur.

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