TROTTER v. N.C. DEP'T OF HEALTH & HUMAN SERVS.,

ALMA CHINITA TROTTER,
Petitioner,

v
.
Orange County


No. 06 CVS 1819
NC DEPARTMENT OF HEALTH
& HUMAN SERVICES, PUBLIC
HEALTH DEPT.,
Respondent.

Appeal by respondent from judgment entered 2 May 2007 by Judge
Abraham Penn Jones in Orange County Superior Court. Heard in the
Court of Appeals 21 February 2008.

Alan McSurely, for petitioner-appellee.

Attorney General Roy Cooper, by Assistant Attorney General
Kathryn J. Thomas, for respondent-appellant.

TYSON, Judge.

The Public Health Department of the North Carolina Department
of Health and Human Services (“DHHS”) appeals from order entered by
the superior court, which reversed the decision of the State
Personnel Commission (“SPC”). We reverse and remand.

In the Spring of 2005, sixty-two-year-old Dr. Alma Chinita
Trotter (“Dr. Trotter”) applied for a full-time Educational
Diagnostician II position opening posted by DHHS (“the position”).
The position was to be located in the Raleigh office for the Child
Developmental Services Agency (“CDSA”), a subdivision of DHHS. The application and review process is described in the record.
Applications received by DHHS are sent to the Human Resources
office where a personnel technician enters the applicant’s name and
other information into the Applicant Tracking System (“ATS”). The
technician forwards the applications and an applicant log that
contains Equal Employment Opportunity (“EEO”) information to a
recruitment coordinator.
The recruitment coordinator reviews the applications, screens
the applicants for “minimum qualifications” based on the “Training
and Experience” requirements listed in the posting, and indicates
whether the applicant is qualified on the applicant log. The
applications and the applicant log are returned to the personnel
technician. The technician enters the new information into the ATS
and generates an Applicant Selection Log. The Applicant Selection
Log lists qualified applicants without disclosing their EEO
information. The Applicant Selection Log is sent to the hiring
manager.
Hiring manager Timothy C. Pritchard (“Pritchard”) received the
Applicant Selection Log from the personnel technician, which listed
Dr. Trotter and seven other applicants as qualified by the human
resources staff. Pritchard interviewed two internal applicants
listed on the Applicant Selection Log that he also determined to be
qualified. Pritchard recommended thirty-seven-year-old internal
applicant Evangeline Seay (“Seay”) for the position in the Raleigh
CDSA office. Pritchard indicated that he believed Dr. Trotter had
“sufficient experience but less than the selected candidate.” On
27 June 2005, the DHHS recruitment staff sent a rejection letter to
Dr. Trotter regarding the position. Dr. Trotter contacted
Pritchard to discern why she did not receive an interview.
Pritchard told Dr. Trotter that a candidate currently working for
DHHS possessed the qualifications and was a better fit for the
position.
On 26 July 2005, Dr. Trotter filed a petition for a contested
case hearing pursuant to N.C. Gen. Stat. § 126 and alleged she had
been discriminated against based on race, sex, and age. On 1 June
2006, the Administrative Law Judge (“ALJ”) filed its decision,
which concluded DHHS did not discriminate against Dr. Trotter. In
an opinion and award filed on 14 September 2006, the SPC adopted
the ALJ’s decision and findings of fact . On 14 October 2006, Dr.
Trotter appealed to the superior court pursuant to N.C. Gen. Stat.
§ 150B-45.
On 2 May 2007, the superior court reversed the SPC decision
and remanded the case “with instructions to retroactively instate
and award retroactive back pay for Dr. Trotter in the position she
was discriminatorily denied as of the date [D]HHS denied her [an] opportunity for an interview.” The court also: (1) ordered DHHS
to apologize for its “disrespect . . . showed to [Dr. Trotter;]”
(2) awarded Dr. Trotter “her reasonable lawyers fees and costs[;]”
and (3) ordered extra training in the non-discriminatory treatmentof applicants for DHHS’s management by the Office of State
Personnel. DHHS appeals.

DHHS argues the superior court erred when it: (1) applied
multiple standards of review when it substituted new findings of
fact for those in the SPC final decision; (2) determined the SPC
final decision was unsupported by substantial evidence and was
arbitrary and capricious; (3) concluded that the SPC erred in its
conclusions of law that DHHS had discriminated against Dr. Trotter
based on age; and (4) ordered DHHS to issue an apology to Dr.
Trotter and to provide extra training for DHHS management.

“[When] we . . . review[] a ‘review proceeding’ in the
superior court and petitioners are appealing pursuant to N.C. Gen.
Stat. § 7A-27, we . . . apply N.C. Gen. Stat. § 150B-52 . . . .”
Lincoln v. N.C. Dep’t of Health & Human Servs., 172 N.C. App. 567,
569, 616 S.E.2d 622, 624 (2005). N.C. Gen. Stat. § 150B-52 (2005)
states:
A party to a review proceeding in a superior
court may appeal to the appellate division
from the final judgment of the superior court
as provided in G.S. 7A-27. The scope of review
to be applied by the appellate court under
this section is the same as it is for other
civil cases.

“[T]he appellate court examines the trial court’s order for error
of law. The process has been described as a twofold task: (1)
determining whether the trial court exercised the appropriate scope
of review and, if appropriate, (2) deciding whether the court didso properly.” Carillon Assisted Living, LLC v. N.C. Dep’t of
Health & Human Servs., 175 N.C. App. 265, 270, 623 S.E.2d 629, 633
(internal quotation omitted), disc. rev. denied, 360 N.C. 531, 633
S.E.2d 675 (2006).

DHHS argues the superior court erred when it applied both a de
novo review and the whole-record test when it substituted new
findings of fact for those found in the SPC decision.
“The proper standard of review by the trial court depends upon
the particular issues presented by the appeal.” Bobbitt v. N.C.
State Univ., 179 N.C. App. 743, 748, 635 S.E.2d 463, 467 (2006).
Our Supreme Court has held that “the substantive nature of each
assignment of error dictates the standard of review” during
appellate review of an administrative agency’s final decision.
N.C. Dept. of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 658,
599 S.E.2d 888, 894 (2004) (internal citations omitted).
N.C. Gen. Stat. § 150B-51(b) (2007) states:
[I]n reviewing a final decision, the
[superior] court may affirm the decision of
the agency or remand the case to the agency or
to the administrative law judge for further
proceedings. It may also reverse or modify the
agency’s decision, or adopt the administrative
law judge’s decision if the substantial rights
of the petitioners may have been prejudiced
because the agency’s findings, inferences,
conclusions, or decisions are:

(1) In violation of constitutional
provisions;

(2) In excess of the statutory authority or
jurisdiction of the agency;

(3) Made upon unlawful procedure;
(4) Affected by other error of law;

(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; or

(6) Arbitrary, capricious, or an abuse of
discretion.

“Subparts (1) through (4) of N.C. Gen. Stat. § 150B-51(b) are
characterized as ‘law-based’ inquiries. Reviewing courts consider
such questions of law under a de novo standard.” Gordon v. N.C.
Dep’t of Corr., 173 N.C. App. 22, 31, 618 S.E.2d 280, 287 (2005)
(internal citations omitted). Subparts (5) and (6) “are
‘fact-based’ inquiries.” Id. at 34, 618 S.E.2d at 289.
“Fact-intensive issues ‘such as sufficiency of the evidence to
support an agency’s decision are reviewed under the whole-record
test.’” Id.
On appeal to the superior court, Dr. Trotter assigned error to
the SPC final decision: “(1) The SPC made an error of law in its
statement of the issue; (2) The SPC’s finding of no age
discrimination was ‘unsupported by substantial evidence in view of
the entire record[;]’ and (3) The SPC’s finding of no age
discrimination was arbitrary and capricious.”
Dr. Trotter’s first allegation is addressed by § 150B-51(b)(4)
and is characterized as a “law-based” inquiry requiring de novo
review by the superior court. Id. at 31, 618 S.E.2d at 287. Dr.
Trotter’s second and third allegations are subject to N.C. Gen.
Stat. § 150B-51(b)(5) and (6) respectively, and require review
under the whole-record test as “fact-based” inquiries. Id. at 34,618 S.E.2d at 289. Both de novo review and the whole-record test
were appropriate for the issues presented on appeal to the superior
court. The superior court appropriately used a de novo review and
the whole-record test in its review to the respective assignments
of error alleged in the SPC final decision. This assignment of
error is overruled.

DHHS argues that the superior court erred when it concluded
that the SPC erred in its conclusions of law. We disagree.
De novo review allows the superior court or this Court to
consider the matter anew and to freely substitute its own judgment
in place of the agency’s. Mann Media, Inc. v. Randolph Cty.
Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (internal
citations omitted). Dr. Trotter’s first exception was a law-based
inquiry allowing de novo review. Gordon, 173 N.C. App. at 31, 618
S.E.2d at 287.
This Court has stated:
An employee can establish a prima facie case
of age discrimination when the employee shows
that (1) the employee is a member of the
protected class, or over forty years old; (2)
the employee applied or sought to apply for an
open position with the employer; (3) the
employee was qualified for the position; and
(4) the employee was rejected for the position
under circumstances giving rise to an
inference of unlawful discrimination. An
inference of unlawful discrimination arises
when an employee is replaced by a
substantially younger worker.
N.C. Dep’t of Crime Control & Pub. Safety v. Greene, 172 N.C. App.
530, 538, 616 S.E.2d 594, 600-01 (2005) (internal citation and
quotation omitted).
Reviewing the case anew, the superior court applied the Greene
elements when it concluded that Dr. Trotter had met her burden of
establishing a prima facie case. Id. The superior court stated:
Dr Trotter’s prima facie case here is a strong
one. It is uncontroverted she applied for a
vacant position. Furthermore the
uncontroverted evidence clearly demonstrates
that Dr. Trotter, unlike some discrimination
claimants, was extremely well qualified for
the position she sought. It is also beyond
question that Dr. Trotter satisfied the third
and fourth elements of her prima facie burden,
namely that, despite her qualifications, Mr.
Prichard rejected her application and then
quickly filled the position by hiring a
substantially younger, less-qualified
applicant.

The superior court acted within its statutory authority to
review the issue of the petition to the SPC de novo as a law-based
inquiry. N.C. Gen. Stat. § 150B-51(b)(4) (2007); Gordon, 173 N.C.
App. at 31, 618 S.E.2d at 287. The superior court properly
exercised its appropriate de novo scope of review. Id.; Carillon
Assisted Living, 175 N.C. App. at 270, 623 S.E.2d at 633. This
assignment of error is overruled.

DHHS argues that the superior court erred in its determination
that the SPC decision was unsupported by substantial evidence in
the record. We agree.
Dr. Trotter’s second and third assignments of error qualified
as fact-based inquiries under N.C. Gen. Stat. § 150B-51(b)(5) and(6). The superior court was required to apply the whole-record
test. Gordon, 173 N.C. App. at 34, 618 S.E.2d at 289. “A court
applying the whole record test may not substitute its judgment for
the agency’s as between two conflicting views, even though it could
reasonably have reached a different result had it reviewed the
matter de novo.” Watkins v. N.C. State Bd. of Dental Exam’rs, 358
N.C. 190, 199, 593 S.E.2d 764, 769 (2004) (internal citations
omitted) (emphasis supplied). Instead, the superior court “must
examine all the record evidence _ that which detracts from the
agency’s findings and conclusions as well as that which tends to
support them _ to determine whether there is substantial evidence
to justify the agency’s decision.” Id. (internal citations
omitted). “’Substantial evidence’ means relevant evidence a
reasonable mind might accept as adequate to support a conclusion.”
N.C. Gen. Stat. § 150B-2(8b) (2005).
The superior court reviewed the record of Dr. Trotter’s
petition, considered the application and hiring process, the
applications of Dr. Trotter and Seay, and Pritchard’s
justifications for failing to extend an interview to Dr. Trotter.
The superior court determined that no substantial evidence existed
to justify the SPC’s final decision which stated “[Pritchard] offered different justifications at different times for his failure
to interview Dr. Trotter.” The superior court found “[t]he SPC’s
finding of no age discrimination . . . ‘unsupported by substantial
evidence in view of the entire record’ and . . . arbitrary and
capricious.” The whole record test required the superior court to analyze
all the evidence in the record in order “to determine whether there
[was] substantial evidence to justify the [SPC] decision.”
Carroll, 358 N.C. at 660, 599 S.E.2d at 895. If so, the superior
court could not substitute its judgment or engage in new fact
finding, as it sat as an appellate court. Batch v. Town of Chapel
Hill, 326 N.C. 1, 11, 387 S.E.2d 655, 662, cert. denied, 496 U.S.
931, 110 L. Ed. 2d 651 (1990).
The superior court appropriately used the whole-record test in
its review of Dr. Trotter’s second and third assignments of error.
In determining a lack of substantial evidence to justify the SPC
final decision, the superior court improperly found facts and
substituted its judgment for the SPC’s decision as between two
conflicting views. Watkins, 358 N.C. at 199, 593 S.E.2d at 769.
In doing so, the superior court erred and its order is reversed.
In light of our holding, it is unnecessary to review DHHS’s
remaining assignments of error.

The superior court appropriately used both a de novo review
and the whole-record test to the respective issues on appeal when
it reviewed the final decision of the SPC. The superior court
erred when it improperly substituted its judgment for that of the
SPC under the whole-record test. The superior court’s order, which
reversed the SPC final decision due to a lack of substantial
evidence to support the agency’s order, is reversed. This case isremanded to the superior court with instructions to enter an order
to affirm the SPC’s final agency decision.
Reversed and remanded.
Judge STROUD concurs.
Judge GEER concurs in the result only by separate opinion.

ALMA CHINITA TROTTER,
Petitioner,

v
.
Orange County


No. 06 CVS 1819
NC DEPARTMENT OF HEALTH
& HUMAN SERVICES, PUBLIC
HEALTH DEPT.,
Respondent.

GEER, Judge, concurring in the result only.

While the trial court stated the correct standard of review in
its decision below, I cannot agree with the majority opinion that
it properly applied that standard of review. Nor can I fully agree
that the trial court properly concluded that the State Personnel
Commission erred in its conclusions of law. As a result, I concur
in the result only.
Dr. Trotter filed a petition for a contested case pursuant to
the State Personnel Act, N.C. Gen. Stat. § 126-1 et seq. (2007),
initially asserting that she was denied employment "without
justifiable cause." She subsequently filed an amended petition,
alleging race, sex, and age discrimination when she was denied an
interview. The administrative law judge, Sammie Chess, Jr.,
concluded that Dr. Trotter was not subjected to unlawful
discrimination, and the State Personnel Commission adopted that
decision.
In her petition for judicial review, Dr. Trotter contended:
(1) the Commission erred in its statement of the issue by focusingon a denial of employment rather than the denial of an interview;
(2) the Commission’s determination that Dr. Trotter was not
discriminated against based on her age was not supported by
substantial evidence in view of the whole record; and (3) the
finding of no age discrimination was arbitrary and capricious.
The majority opinion does not address the trial court’s
discussion of the first issue: the correct articulation of the
issue before the Commission. The trial court concluded that the
Commission’s decision was "infected by an error in applying
discrimination law, mainly not examining the ultimate decision here
_ to deny Dr. Trotter an interview." While I agree that this issue
is properly a question of law, subject to de novo review, the trial
court’s conclusion cannot be reconciled with the State Personnel
Act.
N.C. Gen. Stat. § 126-34.1(b) (2007) provides:
An applicant for initial State employment may
file in the Office of Administrative Hearings
a contested case under Article 3 of Chapter
150B of the General Statutes based upon:

(1) Alleged denial of employment in
violation of G.S. 126-16.

(2) Denial of the applicant’s request
for removal of allegedly inaccurate
or misleading information from the
personnel file as provided by G.S.
126-25.

(3) Denial of equal opportunity for
employment and compensation on
account of the employee’s age, sex,
race, color, national origin,
religion, creed, political
affiliation, or handicapping
condition as defined by Chapter 168A
of the General Statutes. Thissubsection with respect to equal
opportunity as to age shall be
limited to persons who are at least
40 years of age. An applicant may
not, however, file a contested case
where political affiliation was the
reason for the person’s nonselection
for (i) an exempt policymaking
position as defined in G.S. 126-
5(b)(3), (ii) a chief deputy or
chief administrative assistant
position under G.S. 126-5(c)(4), or
(iii) a confidential assistant or
confidential secretary position
under G.S. 126-5(c)(2).

(4) Denial of the veteran’s preference
in initial State employment provided
by Article 13 of this Chapter, for
an eligible veteran as defined by
G.S. 126-81.

(5) Denial of employment in violation of
G.S. 126-14.2, where an initial
determination found probable cause
to believe that there has been a
violation of G.S. 126-14.2.

Thus, under the statute, an applicant for state employment may
bring a contested case for a denial of employment, but no provision
authorizes a contested case for denial of an interview.
The Commission properly reviewed Dr. Trotter’s case as
asserting a claim for discrimination in employment since otherwise,
Dr. Trotter asserted no claim at all. It was the trial court _ and
not the Commission _ that addressed the wrong issue.
With respect to Dr. Trotter’s contention that the evidence did
not support the Commission’s finding of no discrimination, we apply
the analytical framework set out in N.C. Dep’t of Corr. v. Gibson,
308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983). In Gibson, our
Supreme Court adopted the framework first established for federalemployment discrimination actions in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Our
Supreme Court explained that the plaintiff carries an initial
burden of establishing a prima facie case of discrimination.
Gibson, 308 N.C. at 137, 301 S.E.2d at 82. The Court stressed that
"[t]he burden of establishing a prima facie case of discrimination
is not onerous." Id. (emphasis added). For example, in a
termination case, "a prima facie case of discrimination may be made
out by showing that (1) a claimant is a member of a minority group,
(2) he was qualified for the position, (3) he was discharged, and
(4) the employer replaced him with a person who was not a member of
a minority group." Id., 301 S.E.2d at 82-83.
Once a plaintiff establishes a prima facie case, "a
presumption arises that the employer unlawfully discriminated
against the [plaintiff]." Id. at 138, 301 S.E.2d at 83.
Nevertheless, "[t]he showing of a prima facie case is not
equivalent to a finding of discrimination." Id. Instead, it only
shifts the burden to the employer "of producing evidence to rebut
the presumption of discrimination raised by the prima facie case."
Id. The employer satisfies this burden "if [it] simply explains
what [it] has done or produces evidence of legitimate
nondiscriminatory reasons. The employer is not required to prove
that its action was actually motivated by the proffered reasons .
. . ." Id.
When the employer articulates a nondiscriminatory reason for
its action, "the plaintiff is then given the opportunity to showthat the employer’s stated reasons are in fact a pretext for
intentional discrimination." Id. at 139, 301 S.E.2d at 84. Our
Supreme Court stressed, however, that "[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." Id. at 140,
301 S.E.2d at 84. With respect to this prong of McDonnell Douglas,
"an employee must prove ‘both that the reason was false, and that
discrimination was the real reason.’" N.C. Dep’t of Crime Control
& Pub. Safety v. Greene, 172 N.C. App. 530, 540, 616 S.E.2d 594,
601 (2005) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515, 125 L. Ed. 2d 407, 422, 113 S. Ct. 2742, 2752 (1993)). As
this Court explained: "’It is not enough, in other words, to
disbelieve the employer; the factfinder must believe the
[employee’s] explanation of intentional discrimination.’" Id.
(quoting St. Mary’s Honor Ctr., 509 U.S. at 519, 125 L. Ed. 2d at
424, 113 S. Ct. at 2754).
With respect to the prima facie case required in an age
discrimination proceeding brought under the State Personnel Act,
this Court has set forth the following elements:
An employee can establish a prima facie
case of age discrimination when the employee
shows that (1) the employee is a member of the
protected class, or over forty years old; (2)
the employee applied or sought to apply for an
open position with the employer; (3) the
employee was qualified for the position; and
(4) the employee was rejected for the position
under circumstances giving rise to an
inference of unlawful discrimination. An
inference of unlawful discrimination ariseswhen an employee is replaced by a
substantially younger worker.

Greene, 172 N.C. App. at 538, 616 S.E.2d at 600-01 (emphasis added)
(internal citations and quotation marks omitted).
I agree with the majority opinion and the trial court that the
State Personnel Commission erred in concluding that Dr. Trotter had
not met her burden of establishing this prima facie case. The
Commission overlooked Greene‘s holding that the fourth element only
requires a showing that a "substantially younger" applicant was
hired. The evidence is undisputed that Dr. Trotter met the actual
final element set forth in Greene.

(See footnote 1)


Like the majority opinion, I conclude that the trial court
erred in reviewing the Commission’s decision regarding the evidence
at the pretext stage. Whether or not the reason articulated by the
employer is a pretext for intentional discrimination is a question
for the trier of fact. The Commission found: "Petitioner is
extremely well qualified for the position. However, the evidence
put forth by Petitioner falls short of demonstrating that
Respondent’s proffered reasons for its actions are false and a mere
pretext for race, age and sex discrimination." This finding must
be reviewed under the whole record test. I do not agree with the majority opinion’s conclusion that the
trial court applied the correct standard of review. Although the
trial court recited the whole record test, it proceeded to
substitute the court’s own evaluation of the evidence for that of
the Commission. Rather than determining whether there was
substantial evidence to support the Commission’s finding, the trial
court asserted that "there is ample evidence" that the reasons
offered by Mr. Pritchard were false.

(See footnote 2)


Our Supreme Court has, however, explained:
A court applying the whole record test may not
substitute its judgment for the agency’s as
between two conflicting views, even though it
could reasonably have reached a different
result had it reviewed the matter de novo.
Rather, a court must examine all the record
evidence _ that which detracts from the
agency’s findings and conclusions as well as
that which tends to support them _ to
determine whether there is substantial
evidence to justify the agency’s decision.

Watkins v. N.C. State Bd. of Dental Exam’rs, 358 N.C. 190, 199, 593
S.E.2d 764, 769 (2004) (internal citation omitted). In turn,"'[s]ubstantial evidence’ is defined as ‘relevant evidence a
reasonable mind might accept as adequate to support a conclusion.’"
Id. (quoting N.C. Gen. Stat. § 150B-2(8b) (2003)).
Thus, it is immaterial whether "ample evidence" exists to
support the trial court’s view. The question is whether the record
contains evidence that a reasonable mind could accept as adequate
to support the Commission’s findings. Here, the record contains
evidence that would permit a reasonable mind to find that Mr.
Pritchard’s reasons were true. Mr. Pritchard explained in his
testimony why he found Ms. Seay’s education and experience more
directly relevant to the vacant position and why he believed she
would be a better fit for the job.
The trial court’s and Dr. Trotter’s arguments regarding the
credibility of Mr. Pritchard’s testimony were questions for the ALJ
and the Commission to consider. The trial court was not free to
revisit those credibility determinations. As this Court stated in
Greene, 172 N.C. App. at 536, 616 S.E.2d at 599 (quoting Little v.
N.C. State Bd. of Dental Exam’rs, 64 N.C. App. 67, 69, 306 S.E.2d
534, 536 (1983)): "On review of an agency’s decision, a trial court
‘is prohibited from replacing the Agency’s findings of fact with
its own judgment of how credible, or incredible, the testimony
appears to [the trial court] to be, so long as substantial evidence
of those findings exist in the whole record.’" See also N.C. Dep’t
of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 674, 599 S.E.2d
888, 904 (2004) (holding that it is the agency’s responsibility,
and not the court’s, to determine the weight and sufficiency of theevidence and the credibility of the witnesses, to draw inferences
from the facts, and to appraise conflicting and circumstantial
evidence).
The trial court also disregarded the principle that even if
the plaintiff presents evidence that the reasons offered were
untrue, the trier of fact is still not required to conclude that
the reasons were a pretext for intentional unlawful discrimination.
See Miller v. Barber-Scotia College, 167 N.C. App. 165, 168, 605
S.E.2d 474, 477 (2004) ("’The ultimate question is whether the
employer intentionally discriminated, and proof that the employer’s
proffered reason is unpersuasive, or even obviously contrived, does
not necessarily establish that [plaintiff’s] proffered reason . .
. is correct. It is not enough to disbelieve the defendants here;
the fact-finder must believe [plaintiff’s] explanation of
intentional race discrimination.’" (quoting Love-Lane v. Martin,
355 F.3d 766, 788 (4th Cir.), cert. denied, 543 U.S. 813, 160 L.
Ed. 2d 18, 125 S. Ct. 49 (2004))). In other words, a trier of fact
could find that the reasons were untrue, but were a pretext for
some motive other than the alleged discrimination.
Dr. Trotter makes little effort to argue that the actual
motive was age discrimination apart from pointing to the age
disparity. Indeed, her argument primarily suggests that Mr.
Pritchard was implementing his desire to promote from within. Even
assuming without deciding, that such a motivation was improper
under state regulations, that motive is not age discrimination. I
would, therefore, conclude that under the whole record test, theCommission’s determination that Dr. Trotter was not denied
employment as a result of her age is supported by substantial
evidence. Since the Commission’s finding of no discrimination is
supported by substantial evidence, it is not arbitrary and
capricious.
While Dr. Trotter may have presented sufficient evidence to
permit a finding of discrimination, her evidence did not mandate
such a finding. The trial court was not permitted to substitute
its view of the evidence for the Commission’s and should have
upheld the Commission’s decision.

---

Footnote: 1

Although the trial court properly concluded that Dr. Trotter
established a prima facie case, I am concerned that its analysis,
stating that it is "beyond question" that DHHS filled the position
by hiring a "less-qualified" applicant, amounts to fact finding by
the trial court. The elements of a prima facie case required only
a determination that Dr. Trotter was qualified for the position.
The trial court’s gratuitous assertion that Dr. Trotter was
indisputably more qualified than the younger employee improperly
resolved an issue of fact.

---

Footnote: 2

Notably, the trial court pointed to the Commission’s
conclusion that Dr. Trotter was "extremely well qualified." The
trial court then translated this finding as meaning that Dr.
Trotter was "the highest qualified candidate for the position" _ a
translation contradicted by the remainder of the Commission’s and
ALJ’s decision. The trial court was thus substituting its judgment
that Dr. Trotter was "the strongest and highest qualified
candidate" for the Commission’s determination that Dr. Trotter was
"extremely well qualified." The fact that someone is well
qualified _ even extremely well qualified _ does not necessarily
mean that they would be the best fit for the job, one of the
criteria apparently applied by Mr. Pritchard.

See Enoch v.
Alamance County Dep’t of Soc. Servs., 164 N.C. App. 233, 246, 595
S.E.2d 744, 754 (2004) (rejecting argument that superior
qualifications necessarily establish pretext for discriminatory
motive).

It was not the trial court’s role to decide who should
have been hired.

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