Appeal by respondent from order filed 17 March 2003 by Judge
Abraham Penn Jones in Wake County Superior Court. Heard in the
Court of Appeals 17 March 2004.
Elliot Pishko Morgan, P.A., by Robert M. Elliot, for
petitioner-appellee.
Attorney General Roy Cooper, by Assistant Attorneys General
Joyce S. Rutledge, for respondent-appellant.
BRYANT, Judge.
Winston-Salem State University (respondent) appeals a superior
court order filed 17 March 2003 reversing an order by the State
Personnel Commission (SPC) and ordering the reinstatement ofMichael T. Winbush (petitioner) to his duties as Assistant Football
Coach and Head Women's Softball Coach.
On 2 October 2000, petitioner filed a petition for a contested
case hearing with the Office of Administrative Hearings (OAH). The
petition alleged petitioner had been discharged or reassigned from
his coaching duties without just cause. Attached to the petition
was a statement by petitioner that he had been “relieved of [his]
athletic duties and privileges effective June 30, 2000” by
respondent's Athletics Director. In a recommended decision, the
administrative law judge (ALJ) who initially heard the case
concluded: (1) the OAH had “jurisdiction over this contested
matter” and (2) petitioner was demoted without just cause. The
SPC, however, rejected the ALJ's findings of fact and conclusions
of law as “erroneous as a matter of law.” In rejecting the ALJ's
recommended decision in its entirety, the SPC stated: “The
Commission finds that neither the ALJ nor the Commission have
jurisdiction under Chapter 126 over [p]etitioner's complaint, as an
employee subject to the State Personnel Act, that he was not
assigned the job duties of his choice, i.e. specifically certain
coaching duties and responsibilities.” Petitioner appealed the SPC
ruling to the superior court.
In an order filed 17 March 2003, the superior court in turn
reversed the SPC decision, finding jurisdiction and making the
following pertinent findings of fact:
33. As a result of the disciplinary
action . . . , [petitioner] did not receive
the 10% raise in salary in July[] 2000, which
he had been told that he would receive for his
coaching accomplishments.
. . . .
35. [Petitioner] is still employed at
WSSU as a recreation worker, and his
pay[]grade has not changed. [Petitioner] was
hired as a coach, has excelled as a coach and
has developed a reputation as an excellent
coach; however, he has not been allowed to
coach at WSSU since June 30, 2000.
The superior court concluded petitioner had been demoted or
discharged for disciplinary reasons without just cause from his
position as coach. The superior court also concluded that
petitioner had been denied a 10% pay raise for his coaching
responsibilities.
_____________________
The issues are whether: (I) the allegations in the petition
invoked the jurisdiction of the OAH and SPC and (II) the superior
court erred in concluding petitioner had been demoted or discharged
from his coaching duties in violation of N.C. Gen. Stat. § 126-
34.1(a)(1).
I
[1] The rights of university employees to challenge any
employment action in the OAH arise solely from the State Personnel
Act (SPA).
University of North Carolina v. Feinstein, 161 N.C.
App. 700, 703, 590 S.E.2d 401, 402 (2003). Thus, the OAH's
jurisdiction over appeals of university employee grievances is
confined to the limits established by the SPA.
Id. at 703, 590
S.E.2d at 403. In 1995, N.C. Gen. Stat. § 126-34.1 was enacted to
specifically define the types of employee appeals that constitute
contested case issues of which the OAH may hear.
Id.; N.C.G.S. §
126-34.1(a) (2003) (explicitly stating that State employees mayfile in the OAH “only as to the following personnel actions or
issues”).
N.C. Gen. Stat. § 126-34.1 provides in pertinent part that a
State employee or former State employee has the right to challenge
his “[d]ismissal, demotion, or suspension without pay based upon an
alleged violation of G.S. 126-35, if the employee is a career State
employee.”
(See footnote 1)
N.C.G.S. § 126-34.1(a)(1) (2003). Pursuant to N.C.
Gen. Stat. § 126-35, “[n]o career State employee subject to the
[SPA] shall be discharged, suspended, or demoted for disciplinary
reasons, except for just cause.” N.C.G.S. § 126-35(a) (2003).
Therefore, an employee petition filed with the OAH that alleges the
employee has been dismissed, demoted, or suspended without just
cause is sufficient to invoke the jurisdiction of the OAH and SPC.
See Campbell v. N.C. Dep't of Transp., 155 N.C. App. 652, 660, 575
S.E.2d 54, 60 (for claim under N.C. Gen. Stat. § 126-34.1,
“[j]urisdiction rests on the allegations of the petitioner”),
disc.
review denied, 357 N.C. 62, 579 S.E.2d 386 (2003);
see also Batten
v. N.C. Dep't of Correction, 326 N.C. 338, 346-47, 389 S.E.2d 35,
41 (1990) (holding that the mere “allegation that an employee has
been 'demoted in rank without sufficient cause' invokes . . . the
jurisdiction of the State Personnel Commission [and] that of the
OAH”),
disapproved of on other grounds by Empire Power Co. v. N.C.
Dep't of E.H.N.R., 337 N.C. 569, 447 S.E.2d 768 (1994);
Fearrington
v. University of North Carolina, 126 N.C. App. 774, 781, 487 S.E.2d
169, 174 (1997) (“[t]he Commission has jurisdiction to review[,
inter alia,] appeals involving government employees subject to the
Personnel Act where an employee was . . . discharged, suspended or
demoted for disciplinary reasons without just cause”).
In this case, the petition filed by petitioner alleged he had
been discharged without just cause or reassigned without just cause
when he was “relieved of [his] athletic duties and privileges
effective June 30, 2000” by respondent's Athletics Director. Under
our liberal rules of construction for allegations raised in a
party's pleading, the petition thus
alleges either a discharge or
demotion.
See N.C.G.S. § 1A-1, Rule 8(f) (2003) (the allegations
in a pleading must be liberally construed so “as to do substantial
justice”);
Black's Law Dictionary 444 (7th ed. 1999) (to “demote”
is defined as “[t]o lower in rank, position, or pay”).
Accordingly, the superior court properly concluded that the OAH and
SPC had jurisdiction to hear the petition.
II
[2] We next consider whether the superior court erred in
concluding that petitioner had been demoted or discharged from his
coaching duties in violation of N.C. Gen. Stat. § 126-34.1(a)(1).
The evidence establishes that petitioner was neither dismissed
nor demoted from his respondent employment. In 1994, respondent's
Student Affairs Department hired petitioner to fill the position of
“Recreation Worker II.” Petitioner's annual salary was $22,557.00,
which was equivalent to a “paygrade 64” on the N.C. State Salary
Schedule. As a respondent employee, petitioner's primary
responsibility was to coach football and women's softball. In
April 2000, petitioner was commended for his coachingaccomplishments and told he would receive an additional 10% raise
in salary effective 1 July 2000.
In June 2000, a dispute arose over petitioner's coaching
performance: Petitioner had organized a youth football camp to
occur on 18 and 19 June 2000. After having scheduled the football
camp, petitioner learned he was required to attend a respondent
staff retreat on 17 and 18 June 2000. Petitioner made arrangements
for his staff to operate the football camp while he attended the
required respondent staff retreat. However, against the
instructions of his supervisor, petitioner failed to obtain prior,
written approval to conduct the football camp. Consequently,
effective 1 July 2000 petitioner was removed from his coaching
duties and began serving as intramural coordinator, without change
to his paygrade or Recreation Worker II status. In addition, he
failed to receive the promised raise in salary for his coaching
accomplishments.
This evidence shows petitioner was neither dismissed nor
demoted in his Recreation Worker II position at respondent. At
most, the evidence speaks to a reassignment, as petitioner claims
to have lost his more significant coaching responsibilities.
“Because petitioner [is] a permanent State employee, it is well-
settled that he [has] a 'property interest of continued employment
created by state law and protected by the Due Process Clause.'”
Nix v. Dep't of Administration, 106 N.C. App. 664, 666, 417 S.E.2d
823, 825 (1992) (citation omitted). That interest “does not extend
to the right to possess or retain a particular job or to perform
particular services.”
Fields v. Durham, 909 F.2d 94, 98 (4th Cir.1990),
cert. denied, 498 U.S. 1068, 112 L. E. 2d 849 (1991);
Babb
v. Harnett County Bd. of Education, 118 N.C. App. 291, 454 S.E.2d
833 S.E.2d 184 (rejecting plaintiff's argument that under contract
and the State Constitution he had a protected property interest in
being assigned coaching duties),
disc. rev. denied, 340 N.C. 358,
458 S.E.2d 184 (1995).
As previously stated, a demotion is defined as a “lower[ing]
in rank, position, or pay,”
Black's Law Dictionary 444. Rank is
defined as “relative standing or position” within a group.
Webster's Third New International Dictionary 1881 (3d ed. 1966).
A reduction in position under the SPA has been construed by this
Court to mean the placement of an employee “in a lower paygrade.”
Gibbs v. Dept. of Human Resources, 77 N.C. App. 606, 611, 335
S.E.2d 924, 927 (1985) (rejecting a petitioner's contention that
she had been demoted under the SPA when she was reassigned to a
position with fewer responsibilities but which was subject to the
same paygrade). In the instant case, petitioner's paygrade
remained the same. Furthermore, as the promised raise in salary
had not yet come into effect at the time of his reassignment,
petitioner has also failed to show a demotion through a decrease in
pay. As such, petitioner was neither discharged nor demoted and is
not entitled to relief under the SPA. Accordingly, the superior
court erred in concluding that petitioner had been discharged
without just cause.
Affirmed in part, reversed in part.
Judges McCULLOUGH and ELMORE concur.
Footnote: 1