Administrative Law--jurisdiction of Office of Administrative Hearings--Article 8
discrimination claim--state employee
The trial court did not err by affirming the Office of Administrative Hearings' conclusion
that it lacked jurisdiction to hear a contested case brought by a former employee of the University
of North Carolina serving as a part-time lecturer and temporary coordinator of respondent
university's occupational therapy program who claimed that he was discriminated against in
violation of N.C.G.S. § 126-16 based on the fact that he was a white male and was informed that
the individual hired by respondent as the permanent coordinator was a black female, because: (1)
the state employment position from which petitioner was terminated and the position for which
petitioner's application was denied were both exempt from Article 8; and (2) the term “state
employee” in the contested case provisions of Article 8 refers to the employment at issue in the
underlying contested case and not to the particular employment status of a given petitioner at the
time of filing a contested case.
Voerman Law Firm, PLLC, by David P. Voerman, for petitioner-
appellant.
Attorney General Roy A. Cooper, by Assistant Attorney General
Joyce S. Rutledge, for respondent-appellee.
McGEE, Judge.
Petitioner filed a petition for a contested case hearing with
the Office of Administrative Hearings (OAH) on 2 April 1998. An
administrative law judge (ALJ) granted respondent's motion for
summary judgment on 17 May 1999, holding that OAH lacked
jurisdiction over the matter. Petitioner petitioned for judicial
review, and the trial court affirmed the ALJ's decision on 24
January 2000. Petitioner appeals.
Petitioner was employed by respondent under contract from 2January 1997 to 30 June 1997 as a part-time lecturer and
temporary
coordinator of respondent's new Occupational Therapy Program (OTP).
At the expiration of the contract, petitioner continued working for
respondent in the same capacity with the understanding that, should
a permanent coordinator of the OTP not be found by 30 December
1997, the position would be made available to petitioner.
Petitioner asserts that, in December 1997, petitioner was offered
and accepted the position of permanent coordinator of the OTP on a
part-time basis beginning 1 January 1998 and on a full-time basis
effective April 1998.
Petitioner learned in February 1998 that respondent had
advertised for and in fact had hired someone other than petitioner
to be the permanent coordinator of the OTP. Petitioner received a
letter on 6 March 1998 clarifying that he had not been offered the
position of permanent coordinator and that his employment would end
on 31 March 1998. Because he is a white male, and because he had
been informed that the individual hired by respondent as permanent
coordinator of the OTP is a black female, petitioner petitioned for
a contested case hearing with the OAH on 2 April 1998 asserting
that respondent had discriminated against him on the basis of his
sex and race in violation of N.C. Gen. Stat. § 126-16.
The decision of the ALJ that OAH did not have jurisdiction to
hear petitioner's contested case was a final decision under N.C.
Gen. Stat. § 150B-36(c)(1) (1999), entitling petitioner to
immediate judicial review pursuant to N.C. Gen. Stat. § 150B-43
(1999). The trial court's scope of review under N.C. Gen. Stat. §
150B-51(b) (1999) includes assuring that the decision of the ALJcontains no errors of law, is supported by substantial competent
evidence, and is neither arbitrary nor capricious.
Chapter 126 of the North Carolina General Statutes governs the
State Personnel System. N.C. Gen. Stat. § 126-5(a) (1999) states
Chapter 126 applies to all State employees not specifically
exempted. N.C. Gen. Stat. § 126-5(c1)(8) (1999) specifically
exempts the instructional and research staff of the University of
North Carolina from all provisions of Chapter 126 except Articles
6 and 7. Respondent is a part of the University of North Carolina,
and the position of coordinator of respondent's OTP includes
teaching duties. Petitioner does not challenge the ALJ's Finding
of Fact No. 2 that the position of coordinator of the OTP is an
exempt position.
Petitioner alleges that he was discriminated against in
violation of N.C. Gen. Stat. § 126-16 (1999), which requires that
"[a]ll State departments and agencies . . . shall give equal
opportunity for employment and compensation, without regard to
race, religion, color, creed, national origin, sex, age, or
handicapping condition[.]" N.C. Gen. Stat. § 126-34.1 (1999)
permits a former State employee or applicant for State employment
to file a contested case before OAH if employment has been
terminated or denied in violation of N.C.G.S. § 126-16. However,
while N.C.G.S. § 126-16 is in Article 6 and therefore is applicable
to otherwise exempt University of North Carolina employees,
N.C.G.S. § 126-34.1 is in Article 8 and therefore is explicitly not
applicable. It follows that OAH lacks jurisdiction to hear a
contested case brought under Article 8 by exempt employees of theUniversity of North Carolina, including the coordinator of
respondent's OTP.
Although N.C.G.S. § 126-16 prohibits discrimination based on
sex or race, it does not, by itself, provide for bringing a
contested case before OAH. Petitioner suggests that our Supreme
Court's decision in Batten v. N.C. Dept. of Correction, 326 N.C.
338, 389 S.E.2d 35 (1990) indicates otherwise. However, unlike the
Department of Correction employment position at issue in the Batten
case, the position of coordinator of respondent's OTP is
specifically exempt from Article 8 of Chapter 126. As our Court
has stated, "'[i]f the Legislature desired to establish a public
policy entitling [UNC faculty] to the protection [of the grievance
procedures] of G.S., Chap. 126, it could have done so.'" Conran v.
New Bern Police Dept., 122 N.C. App. 116, 119, 468 S.E.2d 258, 260
(1996) (quoting Walter v. Vance County, 90 N.C. App. 636, 641, 369
S.E.2d 631, 634 (1988)).
Petitioner contends that he may nonetheless bring a contested
case under N.C.G.S. § 126-34.1 because, at the time he filed his
contested case, he was no longer employed by respondent and
therefore was not exempt from Article 8 as a member of the
instructional or research staff of the University of North
Carolina. By petitioner's logic, however, he was likewise no
longer a State employee when he filed his contested case and
therefore was not within the jurisdiction of Chapter 126 at all.
We reject petitioner's reasoning and hold instead that the term
"State employee" in the contested case provisions of Article 8refers to the employment at issue in the underlying contested case
and not to the particular employment status of a given petitioner
at the time of filing a contested case. Because the State
employment position from which petitioner was terminated and the
position for which petitioner's application was denied were both
exempt from Article 8, we hold that the ALJ did not err in finding
that OAH lacked jurisdiction over petitioner's contested case. We
therefore affirm the order of the trial court.
Having addressed the underlying issues, we decline to consider
respondent's cross-assignment of error to the trial court's failure
to address respondent's contention that petitioner's petition to
the trial court for judicial review was untimely filed.
Affirmed.
Judges GREENE and CAMPBELL concur.
*** Converted from WordPerfect ***