Under the North Carolina Human Resources Act, a career State employee may not be discharged, suspended, or demoted for disciplinary reasons except for "just cause". When an agency seeks to discipline an employee on the grounds of "unacceptable personal conduct," North Carolina courts utilize a flexible, case-by-case framework guided by the "Wetherington factors" to determine whether just cause exists to support the specific discipline imposed.

The Just Cause Framework and the Role of the Wetherington Factors

To determine if an agency possessed just cause to discipline a career State employee for unacceptable personal conduct, tribunals and reviewing courts employ a three-step analytical approach:

1. First Inquiry: Determine whether the employee actually engaged in the conduct the employer alleges  This is a question of fact.
2. Second Inquiry: Determine whether the employee's conduct falls within one of the categories of "unacceptable personal conduct" defined by the North Carolina Administrative Code.
3. Third Inquiry: If the conduct qualifies as unacceptable personal conduct, the tribunal must determine whether that misconduct amounted to "just cause" for the specific disciplinary action take.

Because unacceptable personal conduct does not automatically establish just cause for all types of discipline, the third step requires a flexible analysis "embodying notions of equity and fairness" based on the unique facts and circumstances of each individual case. To guide this third inquiry, the North Carolina Supreme Court in Wetherington v. N.C. Dep't of Pub. Safety, 368 N.C. 583 (Wetherington I) established specific factors that employers and reviewing tribunals must consider.

The Wetherington Factors

The Wetherington factors require an agency and reviewing courts to evaluate and balance specific dimensions of the employee's conduct, background, and the agency's past practices. These factors are:

• The severity of the violation: Reviewing the degree, seriousness, and magnitude of the employee's underlying policy infraction or misconduct .
• The subject matter involved: Assessing the specific nature, context, and operational sensitivity of the issues surrounding the violation.
• The resulting harm: Examining the actual or potential harm, disruption, or damage caused by the employee's violation .
• The employee's work history: Evaluating the employee's overall performance, past active disciplinary record, and tenure with the state agency.
• The discipline imposed in other cases involving similar violations: Analyzing whether the agency has treated similarly situated employees differently, thereby checking for disparate treatment or arbitrary decision-making.

Mandatory Application and the Rejection of Per Se Rules

Consideration of the Wetherington factors is an "appropriate and necessary component" of any decision to discipline a career State employee for unacceptable personal conduct. This means that any "automatic dismissal" policies are likely unlawful. Agencies cannot enforce a fixed punishment of dismissal for any violation of a given policy. Inflexible standards do not allow the use of required discretion and are contrary to the "flexible and equitable standard" of just cause.

An agency must consider all of the factors for which evidence is presented in the record. It is legally prohibited from relying on a single factor to justify its disciplinary decision while ignoring other supported factors. A failure by an agency to prove that it considered the Wetherington factors when executing a disciplinary action creates a solid argument that the decision should not withstand just cause analysis. 

Procedural Boundaries and Judicial Review

The North Carolina Human Resources Act outlines clear procedures and allocations of proof regarding just cause disputes:

• Written Notice: Before any disciplinary action is taken, the employee must be provided a written statement detailing the specific acts or omissions causing the discipline and outlining their appeal rights N.C. Gen. Stat. § 126-35, N.C. Gen. Stat. § 126-34.02 . This "Final Agency Decision" is the culmination of the mandatory internal administrative grievance process, and must be issued within 90 days of the grievance. Failure to timely provide a FAD can result in adverse findings and remedies in favor of a disciplined Petition at OAH. 
• Burden of Proof: In contested cases challenging a dismissal, demotion, or suspension, the statutory burden of showing that the discipline was supported by just cause rests entirely on the employer agency. This means that the agency must prove the unacceptable conduct occurred, and the imposed discipline was appropriate using the Wetherington factors. 
• Standard of Review: On appeal, a tribunal's factual findings regarding the employee's underlying conduct are reviewed by the Court of Appeals under the "whole record test," whereas the ultimate legal conclusion of whether the conduct constitutes "just cause" for the discipline imposed is reviewed de novo. 
• Agency Errors and Remediation: If an agency fails to consider the Wetherington factors, or applies an impermissible per se rule, reviewing courts will not automatically remand the case to give the agency a second "bite at the apple" to consider the factors, provided that the record is sufficiently developed to permit a meaningful de novo review of the factors.

The Wetherington factors provide a mandatory, multi-factor framework designed to ensure equity, fairness, and administrative discretion in the discipline of North Carolina career State employees. By requiring agencies to weigh the severity of an infraction, the resulting harm, the employee's career history, and historical consistency in agency discipline, North Carolina law prevents arbitrary, mechanical, or disparate terminations under the guise of unacceptable personal conduct. The statutory burden remains on the employer agency to prove that its holistic application of these factors legally justified the specific disciplinary measure chosen.

A Disciplined SHRA Employee Must Persist Through the Grievance Process

To enforce consideration of the Wetherington factors, a disciplined SHRA employee must proceed through the administrative grievance process. The process can be tedious, and seems to be designed to discourage employees from persisting. Clients have reported that they have been told that their cause is hopeless, and that they will never get their job back. Very few people I have spoken to considered the grievance process to be designed for a meaningfully neutral resolution of their issue applying the appropriate standards. Rather, these administrative hurdles tend to obstruct access to a detached tribunal that will hold the agency to its burdens and apply the proper factors. 

Seek Legal Counsel Immediately

Early consultation with experienced legal counsel can be crucial. Harsh and strict deadlines throughout the process provide further impediments to justice. An appeal to OAH is required to be completed within 180 days of a Petition. This leaves a very limited time to conduct necessary discovery and meaningfully prepare for a hearing.

If you are a SHRA employee and have received or are expecting a notice of discipline, it is imperative to seek counsel ASAP. Give me a call or fill out the firm's contact form and we will respond to determine whether a formal consultation is appropriate. We can also help you obtain your full personnel file, a crucial step forward that can provide helpful information during the grievance process and prior to the initiation of formal discovery.