The opinion
Judge Walker
dissenting.
I respectfully dissent and would affirm the trial court’s order granting summary judgment to plaintiff. I disagree with the majority opinion that the plaintiff’s current position of internal auditor with the DOT is a similar position to the position of Chief of the Internal Audit Section which he formerly held. The only similarity in the two positions is the pay grade plaintiff receives.
Pursuant to 25 N.C.A.C. 1B.0428, plaintiff was entitled to be reinstated to the same or a similar position. Plaintiff was reinstated to the position of an internal auditor in the Single Audit Compliance Unit of the External Audit Branch of the Fiscal Section of the DOT.
In N.C. Dept. of Transportation v. Hodge, 347 N.C. 602 , 499 S.E.2d 187 (1998), our Supreme Court discussed the unique duties and responsibilities of the Chief Internal Auditor. The Court found:
Substantial evidence presented by both parties showed that the position of Chief of the Internal Audit Section carried consider *255 able independence and responsibility.... Hodge, as Chief Internal Auditor, could recommend action on audit findings. . . . The substantial evidence in the record amply supports a finding that the Chief of the Internal Audit Section had final decision-making authority within that section. . . .
Hodge, 347 N.C. at 606 , 499 S.E.2d at 190 .
Former Chief Justice Mitchell similarly discussed the responsibilities of the Chief Internal Auditor in his dissent:
[T]he . . . Chief of the Internal Audit Section . . . independently directs and supervises all activities and personnel in the Internal Audit Section. . . . Auditors are assigned by the Chief of the Internal Audit Section to conduct particular audits, and the Chief of the Internal Audit Section also controls the scope, objectives, findings, and recommendations of any audit conducted in any of the divisions of DOT. Further, the Chief of the Internal Audit Section prepares manuals, guide programs, and audit procedures and gives related instructions for all auditors to utilize in performing audits throughout the entire DOT. The testimony of petitioner Hodge was that his decisions in all the foregoing regards were not reviewable or reviewed by anyone in the DOT or elsewhere.
Hodge, 347 N.C. at 613 , 499 S.E.2d at 194 . Additionally, as the majority notes, the Chief Internal Auditor supervises a staff of auditors.
Further, the Administrative Law Judge made this finding regarding the Chief Internal Auditor position:
3. As Chief of the Internal Audit Section, the Petitioner [Hodge] exercised broad flexibility and independence. In addition to supervising other auditors, he could decide who, what, when, how, and why to audit within the Department. While he could not order implementation of any recommendations, he was free to contact the State Bureau of Investigation concerning his findings.
Hodge, 347 N.C. at 604 , 499 S.E.2d at 189 .
In contrast, plaintiffs affidavit states that in his reinstated position, “I now supervise no employees and report to the Manager of the Single Audit Compliance Unit.” Indeed, the defendants concede that plaintiffs current job duties are not similar to his former job duties.
*256 The majority relies on N.C. Dept. of Correction v. Myers, 120 N.C. App. 437 , 462 S.E.2d 824 (1995) for the proposition that reinstatement does not require placement in an employee’s former position and location. Myers , however, is distinguishable from the case sub judice. In Myers , the employee worked as “a unit supervisor for the [Department of Correction] in Davidson County.” Id. at 439 , 462 S.E.2d at 825 . Plaintiff was “reinstated to Supervisor III in Davie County with back pay.” Id. at 440 , 462 S.E.2d at 826 . This Court held that the plaintiff “was returned to the same pay grade and step as before his demotion even though he works at a different location.” Id. at 443 , 462 S.E.2d at 828 .
This Court in Myers did not address the duties and responsibilities of the two positions involved. Here, there are numerous differences in the responsibilities and duties required of the positions. Additionally, plaintiff was originally employed with DOT as an internal auditor and was “promoted to the position of Chief of the Internal Audit Section.” Hodge, 347 N.C. at 603 , 499 S.E.2d at 188 . A return to the position of internal auditor, albeit with the same pay grade of the Chief Internal Auditor, is not a similar position. Accordingly, the trial court did not abuse its discretion in entering summary judgment for plaintiff.