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Labor & Employment – Public Employees – Termination – Personal Misconduct – Arbitrary Decision – Bipolar Disorder – New Medication

Bulloch v. North Carolina Department of Crime Control & Public Safety (Lawyers Weekly No. 12-07-0980, 28 pp.) (Linda Stephens, J.) Appealed from Wake County Superior Court (Howard E. Manning Jr., J.) N.C. App.

Holding: Although petitioner’s voluntary consumption of alcohol contributed to his inappropriate off-duty behavior, a psychiatrist testified that petitioner’s behavior was caused by a combination of alcohol, his first dose of lithium, hypomania, and his being “relatively unmedicated for his bipolar disorder.” The psychiatrist concluded that petitioner’s conduct “was a direct result of his medical illness,” and petitioner testified that he had previously consumed alcohol and never had similar behavioral problems. This evidence supports the State Personnel Commission’s determination that, while alcohol “may have played some role in [petitioner’s] behaviors,” alcohol was not “a substantial proximate cause of the behavior.”

We affirm the superior court’s decision to uphold the SPC’s order requiring petitioner’s reinstatement as a state trooper.

Petitioner was off duty when he took his first dose of lithium as a treatment for his bipolar disorder. He also attended a party and drank alcohol.

When petitioner’s girlfriend didn’t want to dance, he used a defensive hold on her arm to propel her to the dance floor, hurting her arm. Once the couple arrived home, petitioner threatened suicide, fired a bullet into the floor, took two sleeping pills, and told his girlfriend that he had taken the whole bottle.

Without waiting for a medical evaluation, respondent fired petitioner.

Forensic psychiatrist Dr. Moira Artigues testified that the “common side effects of lithium” — including mental confusion and a breakdown of emotions — were consistent with petitioner’s behavior and are more likely to occur from a first dose. Further, Dr. Artigues testified that because petitioner was “essentially between medications” at the time of the incident, he was at an increased risk of “an adverse reaction from a new medication like lithium.” The foregoing evidence, tending to show that petitioner was not fully in control of his behavior due to his first dose of lithium and his bipolar disorder, serves as substantial evidence that petitioner’s behavior was not intentional, but rather was a result of his medical condition and the unexpected effects of his prescribed treatment.

Moreover, even if an employee’s conduct constitutes unacceptable personal conduct, a state agency must still show that the conduct amounted to just cause for the disciplinary action taken.

The evidence clearly shows that, but for the Dec. 14, 2004 incident, petitioner was an excellent employee of the N.C. Highway Patrol. The evidence further shows that the cause of this single incident was a controllable — but at the time uncontrolled, through no fault of petitioner — medical condition and the unexpected side effects of prescribed treatment. However, despite the ability of respondent to investigate these causes and their roles in the incident, petitioner was fired before an adequate investigation was completed and before petitioner’s supervisor, Colonel Clay, gained any sort of understanding of petitioner’s condition and treatment.

Moreover, petitioner’s dismissal for hurting his girlfriend and attempting to hurt himself was in spite of far more lenient disciplinary action in previous cases where the NCHP (1) gave a trooper a five percent reduction in pay for “making 22 threatening phone calls to his ex-wife and threatening to kill her” and for attempting to initiate a traffic stop of his ex-wife without lawful reason; and (2) gave a trooper five days of suspension without pay for assaulting an ex-girlfriend by “grabbing, choking and striking her” and, on another occasion, “plac[ing] [a woman] in a bent wrist arm lock to the point it hurt.” This evidence is sufficient to support the determination that respondent did not have just cause to dismiss petitioner for his conduct on Dec. 14, 2004.

While this case was pending on appeal, we declined to apply the “rational nexus” test from Eury v. N.C. Employment Security Comm’n, 115 N.C. App. 590, 446 S.E.2d 383, disc. review denied, 338 N.C. 309, 451 S.E.2d 635 (1994), to non-criminal conduct. Although the SPC improperly burdened respondent with proving a rational nexus in this case, that burden did not prejudice respondent because (1) the SPC considered respondent’s burden to show just cause separately from its burden to prove a rational nexus and (2) because many of the factors relevant to that second burden were also relevant to the first.

Even though petitioner may have had a duty to be truthful in his communications with his employer, he certainly could have ignored that duty and impeded respondent’s investigation of his actions. Accordingly, the SPC did not err in considering petitioner’s truthfulness as a mitigating factor.

Evidence of selective enforcement and disparate discipline was relevant; thus, the SPC properly considered such evidence.


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