Petitioner appealed to the trial court from the ALJ's pre-
hearing dismissal of her claim as untimely. “An order of the ALJ
issued pursuant to a written pre-hearing motion granting a party's
requested relief for failure of the other party to comply withprocedural requirements is a final decision . . . entitl[ing
petitioner] to immediate judicial review[.]”
Lincoln Cty. DSS v.
Hovis, 150 N.C. App. 697, 700, 564 S.E.2d 619, 621 (2002).
Judicial review of administrative agency decisions is governed by
the North Carolina Administrative Procedure Act (APA), Chapter 150B
of the N.C. General Statutes. N.C.G.S. § 150B-43 (2001) (“[a]ny
person who is aggrieved by the final decision in a contested case,
and who has exhausted all administrative remedies made available to
him by statute or agency rule, is entitled to judicial review of
the decision . . .”). N.C.G.S. § 150B-51(b) (2001) authorizes the
trial court to reverse or modify an agency's final decision if
“substantial rights” of the petitioner may have been prejudiced
because the agency's findings, inferences, conclusions, or
decisions were:
(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 [or] capricious. . . .
N.C.G.S. § 150B-51(b). “The standard of review employed by the
reviewing court is determined by the type of error asserted; errors
of law are reviewed
de novo, while the 'whole record' test is
applied to allegations that the administrative agency decision was
not supported by the evidence, or was arbitrary and capricious.”
Zimmerman v. Appalachian State Univ., 149 N.C. App. 121, 129, 560
S.E.2d 374, 379-380 (2002) (citing
Amanini v. N.C. Dept. of HumanResources, 114 N.C. App. 668, 443 S.E.2d 114 (1994)). “
De novo
review requires a court to consider the question anew, as if the
agency has not addressed it.”
Blalock v. N.C. Dep't of Health and
Human Servs., 143 N.C. App. 470, 475-76, 546 S.E.2d 177, 182
(2001). Under the whole record test, “'the reviewing court [must]
examine all competent evidence (the 'whole record') in order to
determine whether the agency decision is supported by “substantial
evidence.'”
ACT-UP Triangle v. Commission for Health Services, 345
N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting
Amanini, 114
N.C. App. at 674, 443 S.E.2d at 118). In the instant case, the
trial court stated that it was applying
de novo review, which we
conclude was the proper standard of review. We next determine
whether the trial court correctly applied
de novo review.
Petitioner argues that the trial court erred by holding that
Article 8 of Chapter 126 of the North Carolina General Statutes is
inapplicable to petitioner. We disagree.
Chapter 126 of the General Statutes governs the State
Personnel System. The scope of the chapter's authority is set out
in N.C.G.S. § 126-5 (2001), which states that “[t]he provisions of
this Chapter shall apply to [a]ll State employees
not herein
exempt[.]” G.S. § 126-5(a)(1) (emphasis added). The statute
further states that:
(c) Except as to . . . Articles 6 and 7 of
this Chapter, the provisions of this Chapter
shall not apply to:
(1) A State employee who is not a career State
employee as defined by this Chapter. . . .
(c1) Except as to the provisions of Articles 6
and 7 of this Chapter, the provisions of this
Chapter shall not apply to:. . . . (8) Instructional and research staff,
physicians, and dentists of The University of
North Carolina.
N.C.G.S. § 126-5(c)(1) and (c1)(8) (2001).
Petitioner is not a “career state employee,” as the term is
defined by N.C.G.S. § 126-1.1 (an employee of the State who is “in
a permanent position appointment” and who has held “a position
subject to the State Personnel Act for the immediate 24 preceding
months”). Further, her position is classified as “instructional
and research staff . . . of the University of North Carolina.”
Petitioner is therefore exempt from the ambit of Chapter 126 by
either of the statutory criteria. Moreover, the university
expressly categorizes her position as “EPA” or “exempt from SPA.”
Indeed, petitioner concedes her status as an EPA employee, and
characterizes the dispositive issue in this case as “whether EPA
employees can ever bring contested cases.” We conclude that
petitioner's position, as a university EPA employee, is explicitly
exempted from Chapter 126, with the
sole exception of Articles 6
and 7.
Article 6 of Chapter 126 sets out the State policy regarding
discrimination in employment. Petitioner's claim alleges a
violation of a provision of Article 6, N.C.G.S. § 126-16 (2001),
which provides in relevant part 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. . . [.]” Article 6 applies to petitioner and, like any other state
employee without regard to position or status, she is entitled to
enforce the rights implicated by G.S. § 126-16. However, G.S. §
126-16 neither addresses which procedural avenues are available to
particular categories of state employees, nor entitles petitioner
to choose a review scheme from which she is otherwise excluded.
“'[W]here one statute deals with certain subject matter in
particular terms and another deals with the same subject matter in
more general terms, the particular statute will be viewed as
controlling in the particular circumstances absent clear
legislative intent to the contrary.'”
Bryant v. Adams, 116 N.C.
App. 448, 457, 448 S.E.2d 832, 836-37 (1994) (quoting
State Ex Rel.
Utilities Comm. v. Thornburg, 84 N.C. App. 482, 353 S.E.2d 413,
disc. review denied, 320 N.C. 517, 358 S.E.2d 533 (1987)),
disc.
review denied, 339 N.C. 736, 454 S.E.2d 647 (1995). Our Court in
Conran v. New Bern Police Dept., 122 N.C. App. 116, 468 S.E.2d 258
(1996) previously held:
N.C.G.S. § 126-5 states in particular terms
which employees are covered by Chapter 126. On
the other hand, N.C.G.S. § 126-16 . . .
address[es] the same subject matter in general
terms. Moreover, . . . N.C.G.S. § 126-16 . .
. [does not] affirmatively grant[] a remedy to
a[n] . . . employee . . . who is not otherwise
covered by Chapter 126.
In short, N.C.G.S. §
126-5 controls which employees are subject to
Chapter 126. The petitioner is not within
that class of employees.
Id. at 119, 468 S.E.2d at 260 (emphasis added).
We find
Conran applicable to the present case, and reiterate
that the exemptions in N.C.G.S. § 126-5 foreclose petitioner'sreliance on any of the provisions in Chapter 126, except for
Articles 6 and 7.
Notwithstanding N.C.G.S. § 126-5, petitioner asserts a right
to a hearing before the OAH on a provision of Article 8 of Chapter
126, N.C.G.S. § 126-34.1, which states in pertinent part that:
A State employee or former State employee may
file in the Office of Administrative Hearings
a contested case under Article 3 of Chapter
150B . . . as to the following personnel
actions or issues . . . [a]n alleged unlawful
State employment practice constituting
discrimination, as proscribed by G.S. 126-36,
including . . . termination of an employee . .
. on account of the employee's . . . sex, . .
. or handicapping condition[.]
N.C.G.S. § 126-34.1(a)(2)(b) (2001). Petitioner essentially argues
that, because the statute refers to
state employees without adding
“except those already exempted,” that
all state employees are
included. She urges this Court “construe” Article 6, § 126-16,
with § 126-34.1(a)(2), and to hold that § 126-34.1 applies to
all
state employees, including those expressly excluded from the
purview of Chapter 126. Petitioner's proposed construction of the
statute would require us to ignore the plain and definite exclusion
of petitioner's job from Chapter 126. This we decline to do.
Further, we disagree with petitioner that there is any
“inconsistency” between G.S. § 126-34 and G.S. § 126-5; the
legislature, having specifically excluded various classes of state
employees from all of Chapter 126 except Articles 6 and 7, in
N.C.G.S. § 126-5, had no need to repeat the same list of excluded
employees in other parts of Chapter 126. This Court has previously ruled on this issue, and rejected
the position taken by petitioner. In
Hillis v. Winston-Salem State
Univ., 144 N.C. App. 441, 549 S.E.2d 556 (2001), a non-faculty EPA
university employee sought redress for alleged grievances through
the OAH. The plaintiff filed a contested case with the OAH, based
on G.S. § 126-34.1. The Court noted that N.C.G.S. § 126-5(c1)(8)
specifically exempts the “[i]nstructional and research staff . . .
of the University of North Carolina” from all “provisions of
[Chapter 126 except] Articles 6 and 7” and that, like the present
petitioner, the plaintiff's position was exempt from the SPA. This
Court held:
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 the University of North
Carolina[.] . . . 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.'
Hillis at 443-444, 549 S.E.2d at 557 (quoting
Walter v. Vance
County, 90 N.C. App. 636, 641, 369 S.E.2d 631, 634 (1988)).
Hillis
is on point, and controls the resolution of the present case.
Petitioner asks this Court to reverse our decision in
Hillis.
This we may not do.
In the Matter of Appeal from Civil Penalty,
324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the
Court of Appeals has decided the same issue, albeit in a differentcase, a subsequent panel of the same court is bound by that
precedent, unless it has been overturned by a higher court.”).
Nor do we agree with petitioner that
Hillis should be
reversed. Petitioner argues that in
Hillis, this Court “with one
fatal stroke” effectively
“stripped” employees of their right to a
hearing on “discrimination in the workplace,” and “transformed the
substantial rights guarded by Article 6 for a quarter of a century
to a mirage[.]” Petitioner's assertions ignore the review
procedures available to her as an EPA employee of the university.
These include: (1) a hearing before a University grievance
committee; (2) opportunity to respond in writing to the
Chancellor's preliminary decision; (3) appeal from the Chancellor's
decision to the Board of Trustees of NCSU; (4) appeal to Board of
Governors from the Board of Trustees; (5) judicial review by a
superior court judge; and (6) appeal to this Court. Thus, it is
apparent that a university EPA employee is not without recourse in
the event of discrimination.
We conclude that, because N.C.G.S. § 126-5(c1)(8) expressly
exempts petitioner from all of Chapter 126 except Articles 6 and 7,
that the trial court did not err by holding that Article 8 of
Chapter 126 does not apply to her. This assignment of error is
overruled.
Petitioner also argues that the trial court erred by
concluding that she had not timely filed her contested case claim.
However, as we conclude that petitioner had no right to a contestedcase hearing before the OAH, the issue of the timeliness of her
petition need not be addressed.
We hold that the OAH does not have jurisdiction over employees
whose positions or departments are statutorily excluded from its
reach. Because petitioner's position as an EPA employee of the
University of North Carolina is exempt from the SPA, Article 8 of
Chapter 126 is inapplicable to her, and OAH has no subject matter
jurisdiction to consider her contested case.
For the reasons discussed above, the order entered by the
trial court affirming the ALJ's dismissal of her contested case
claim is
Affirmed.
Judges MCGEE and HUDSON concur.
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