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, factfinding 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. § 150B51 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.