An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-350


Filed: 18 February 2003


v .                             Guilford County
                                No. 01 CVS 4400


    Appeal by petitioner from order entered 23 October 2001 by Judge Peter M. McHugh, Superior Court, Guilford County. Heard in the Court of Appeals 7 January 2003.

    Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for petitioner.

    Attorney General Roy Cooper, by Special Deputy Attorney General Robert O. Crawford III and Assistant Attorney General Tina A. Krasner, for respondent.

    WYNN, Judge.

    This appeal follows an earlier appeal to this Court that resulted in an unpublished opinion. See In the Matter of William Dean Gillenwater v. North Carolina Dept. of Transportation, Bridge Inspection Department, 132 N.C. App. 396, 518 S.E.2d 580 (1999)(COA98-515)(“Gillenwater I”). In this appeal, petitioner, William Dean Gillenwater, contends the State Personnel Commissionerroneously (I) denied him a hearing on the merits with an Administrative Law Judge; (II) violated his due process in determining that he was terminated for just cause; (III) failed to rule upon his motion to rehear; and, (IV) failed to correctly apply and interpret the sick leave, FMLA, absences and workers' compensation sections of the state personnel procedures manual. We hold the trial court properly dismissed petitioner's contentions and granted summary judgment in favor of respondent.
    The underlying facts tend to show that the Bridge Maintenance Unit of the North Carolina Department of Transportation employed petitioner from 1989 until his dismissal for alleged unsatisfactory job performance on 17 May 1996. The record shows that petitioner was warned on a number of occasions for absenteeism, tardiness, and other job-related issues. On 15 May 1996, petitioner was advised that a pre-disciplinary conference concerning his job performance was scheduled for the next day. Petitioner responded both orally and in writing to the complaints against him.
    On 17 May 1996, the State Bridge Inspection Engineer advised petitioner by letter that he was dismissed and notified him of his right to appeal to the Personnel Director of the Department of Transportation within 15 calendar days. Petitioner did not pursue the internal grievance process, but instead filed a pro se Petition for a Contested Case Hearing with the Office of Administrative Hearings on 6 June 1996, alleging dismissal based upon discrimination, retaliation, and workplace culture. Petitioner contended he was discriminated against on the basis of race,handicapping condition, and political affiliation. He further alleged that he suffered on-the-job harassment.
    On 16 October 1996, an Administrative Law Judge dismissed petitioner's claims relating to a hostile work environment and workplace culture, as those claims were not included in the State Personnel Act; dismissed the issue of whether petitioner was dismissed for “just cause” because petitioner did not exhaust the internal grievance procedures of the Department of Transportation; and, ordered that petitioner respond to the Department of Transportation's motion for summary judgment on his discrimination claims. Petitioner responded by filing two letters from physicians, and the matter was set for a contested case hearing on 11 December 1996. Appearing pro se, petitioner withdrew his claims for discrimination on the basis of race and political affiliation, and proceeded on the claim that he was discriminated against because of a handicapping condition. Petitioner offered testimony on his own behalf. The Administrative Law Judge concluded that petitioner could not show that he was a handicapped person within the meaning of N.C. Gen. Stat. § 168A-3 (1995), and recommended that summary judgment be entered for the Department of Transportation.
    Thereafter, the Office of Administrative Hearings forwarded the official record to the Commission on 3 February 1997 and the case was scheduled before the Commission on 10 April 1997. The parties were notified that either could appear and make an oral presentation to the Commission by requesting oral argument inwriting within 15 calendar days from receipt of the hearing notice. On 9 April 1997, the case was continued to 5 June 1997 because petitioner had not been notified of the hearing. In apt time, petitioner notified the Commission and Department of Transportation's counsel that he would appear on 5 June 1997 and make an oral argument.
    On 28 May 1997, the Commission issued a memorandum notifying the parties that there would not be a quorum at the 5 June 1997 meeting of the Commission, and that petitioner's case was being removed from the docket. On 7 August 1997, the Commission rendered a decision in petitioner's case during an Executive Session. Petitioner did not make his oral argument.
    In Gillenwater I, this Court held petitioner should have been allowed to make an oral argument to the Commission before the Commission adopted the Administrative Law Judge's recommended decision.   (See footnote 1)  This Court reversed the trial court's affirmation of the Commission's decision and remanded the case to the superior court, which in turn remanded the case to the Commission. Petitioner, no longer proceeding pro se, filed written exceptions to the recommended decision and filed a motion to remand the case to the Administrative Law Judge to hear new evidence. After a writ of mandamus was issued by this Court, a hearing was held before the Commission on 14 December 2000. The Commission again adopted the recommended decision in its 10 January 2001 decision. Petitionerappealed to the Superior Court, Guilford County which affirmed the Commission's final decision and order. Petitioner now appeals to this Court.

    On appeal, petitioner contends the Commission's decision and order was flawed because of various procedural errors, and therefore the decision and order should be reversed. We disagree.
    First, any claim that petitioner's dismissal was without just cause was not properly before the Office of Administrative Hearings. “The right to appeal to an administrative agency is granted by statute, and compliance with statutory provisions is necessary to sustain the appeal.” Lewis v. N.C. Dept. of Human Resources, 92 N.C. App. 737, 739, 375 S.E.2d 712, 714 (1989). Under N.C. Gen. Stat. § 126-35 (1995) an employee is permitted 15 days after receiving a statement of disciplinary action to appeal the action to the department head. Section 126-34 provides that “any career State employee having a grievance arising out of or due to his employment . . . shall . . . follow the grievance procedure established by his department or agency.”     In the letter advising petitioner of his dismissal, he was informed he had a right to appeal his dismissal to the Director of Personnel within 15 calendar days of the letter and was provided a copy of the Department of Transportation grievance policy. Instead of following the Department of Transportation grievance policy as the statute requires, petitioner immediately filed a petition for a contested case hearing with the Office of Administrative Hearings. Since petitioner did not exhaust the internal grievance procedures,the dismissal of petitioner's just cause claim was proper.
    The superior court also properly affirmed the dismissal of petitioner's hostile work environment and on-the-job harassment claims. A contested case hearing may be filed only on issues authorized by N.C. Gen. Stat. § 126-34.1. See N.C. Gen. Stat. § 126-34.1(e) (1995). A contested case based upon an alleged hostile work environment, on-the job harassment, or terms and conditions of employment was not statutorily authorized at the time petitioner filed his petition.   (See footnote 2)  Therefore the dismissal of these claims were also proper.
    Finally, petitioner contends summary judgment in favor of respondent on the discrimination based upon a handicapping condition claim should not have been granted. Summary judgment is appropriate “if the pleadings and depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that any party is entitled to judgment as a matter of law.” Kessing v. Nat'l Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). Once the movant has established the lack of a triable issue of fact, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 690, 340 S.E.2d 510, 512 (1986). The opposing party may not rest upon mere hope that he will be able to discredit the movant'sevidence at trial. Rather, he must be able to identify a genuine issue of material fact. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).
    In order for petitioner to make out a prima facie case that the Department of Transportation discriminated against him on the basis of handicapping condition, petitioner had to show (1) he was a handicapped person as defined by N.C. Gen. Stat. § 168A-3 (1995), (2) he was terminated from his employment with Department of Transportation, and (3) his handicapping condition was the determining factor in the decision to terminate him. See N.C. Gen. Stat. § 126-36 (1995). The Commission's decision and order, affirmed by the superior court, concluded petitioner could not show he was a handicapped person under N.C. Gen. Stat. § 168A-3 (1995) which defines a handicapped person as any person “who (i) has a physical or mental impairment which substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment.”
    Petitioner presented two letters from his doctors as support for his contention that he was a handicapped person. Dr. Buccini stated petitioner had a history of bleeding peptic ulcer disease. Dr. Steiner diagnosed petitioner as having panic disorder with agoraphobia as well as a generalized anxiety disorder and a long standing chronic depression. These conditions do not establish petitioner as a handicapped person.
    Indeed, petitioner did not forecast any evidence establishing his ulcer or mental disorders as a handicap as defined by N.C. Gen.Stat. § 168A-3 (1995). Specifically, petitioner did not provide any evidence indicating the bleeding ulcer substantially limited one or more major life activities. “Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, and learning.” N.C. Gen. Stat. § 168A-3(4)(b)(1995).
    Petitioner also failed to present any evidence demonstrating his mental disorders met the statutory definition of mental impairment. The statute specifically excludes “any disorder, condition or disfigurement which is temporary in nature leaving no residual impairment.” N.C. Gen. Stat. § 168A-3(4)(a)(ii)(C) (1995). Dr. Steiner diagnosed petitioner as having panic disorder with agoraphobia as well as a generalized anxiety disorder and a long standing chronic depression. Plaintiff's evidence did not indicate these conditions were permanent. Therefore, plaintiff's condition did not meet the statutory definition of mental impairment.
    Even assuming these conditions were mental impairments as statutorily defined, plaintiff did not forecast any evidence these mental disorders substantially limited one or more major life activities. At most, Dr. Steiner's letter suggests that petitioner's mental disorders may have affected his ability to perform his job with respondent, which does not arise to a limitation of a major life activity. See Gravitte v. Mitsubishi Semiconductor America, Inc., 109 N.C. App. 466, 471, 428 S.E.2d 254, 257, disc. rev. denied, 334 N.C. 163, 432 S.E.2d 360(1993)(stating “plaintiff's condition must limit more than her mere ability to work a particular job in order for it to affect a major life activity.”). Since petitioner failed to forecast any evidence demonstrating he was a handicapped person within the meaning of the
statute, summary judgment was proper.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

Footnote: 1
        This Court also held it was not error to allow petitioner to proceed pro se in this case.
Footnote: 2
        Effective August 15, 1998, N.C. Gen. Stat. § 12 6-34.1 provides a contested case may be based upon workplace harassment or the creation of a hostile work environment.

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