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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
THOMAS BOBBITT, Petitioner, v. NORTH CAROLINA STATE UNIVERSITY,
Filed: 17 October 2006
1. Appeal and Error--appellate rules violations--omissions not so egregious to invoke
Respondent university's motion to dismiss petitioner state employee's appeal from the
denial of his claim for termination from employment without just cause due to discrimination,
based on a failure to comply with N.C. R. App. P. 10(c), is denied because: (1) petitioner's brief
contains appropriate record references for each of his arguments; and (2) although defendant did
not technically follow the rules by failing to list specific page numbers where exceptions can be
found in the record and did not set out these exceptions in the brief, these omissions are not so
egregious as to invoke dismissal.
2. Public Officers and Employees--career state employee--termination from
employment without just cause due to discrimination--exhausting internal grievance
procedure not required_-waiver
A de novo review revealed that the trial court's order affirming the State Personnel
Commission's holding that it did not have jurisdiction to hear petitioner career state employee's
claim for termination from employment by respondent university without just cause due to
discrimination is reversed, and the case is remanded to the Commission to decide the merits of
petitioner's claim, because: (1) petitioner's allegations allow him to appeal directly to the
Commission under N.C.G.S. § 126-36(a) without exhausting respondent's internal grievance
procedure since he sufficiently asserted his dismissal was based upon age or race discrimination;
(2) the petition properly invoked jurisdiction before the Office of Administrative Hearings and
the Commission on alleged race and age discrimination despite the fact that his counsel
proceeded and prevailed before the ALJ on a just cause argument at the hearing; and (3)
respondent's failure to move to dismiss on jurisdictional grounds, once petitioner announced he
was proceeding only on just cause, waived any required exhaustion of internal grievance
Judge WYNN concurring in the result.
Appeal by petitioner from order entered 1 August 2005 by Judge
J.B. Allen in Wake County Superior Court. Heard in the Court of
Appeals 12 September 2006.
Barry Nakell, for petitioner-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Q.
Shanté Martin, for respondent-appellee.
Thomas Bobbitt (petitioner) appeals from order entered
affirming the decision of the State Personnel Commission (the
Commission) to dismiss for lack of jurisdiction his petition for
termination from employment without just cause due to
discrimination. We reverse and remand.
Petitioner was employed by North Carolina State University
(respondent) for more than fifteen years. Petitioner's
employment was terminated on 21 November 2001. Prior to
termination, petitioner was employed as a floor maintenance
assistant at Reynolds Coliseum, an indoor athletic facility located
on respondent's campus.
On 5 November 2001, petitioner reported to work at 4:54 p.m.
and performed routine services in preparation for a basketball game
scheduled that evening. During the game, petitioner was stationed
at the south end goal and was instructed to sweep the floor and
keep it free from debris. Petitioner took a restroom break at
approximately 8:30 p.m. during the game's half-time intermission.
Petitioner testified the restroom was crowded. Petitioner relieved
himself into the urinal, washed his hands, and returned to his duty
station. Petitioner did not take another restroom break until
approximately 1:30 a.m. Petitioner testified he used the toilet
and he was alone in the restroom at the time.
On 5 November 2001, employees of LPSC Cleaning Services
arrived at Reynolds Coliseum to perform its contract cleaning
services after the basketball game ended. One member of thecleaning crew, Jerry Williams, reported to Larry Bell of LPSC
Cleaning Services that he had observed petitioner urinating on the
floor in the men's restroom. On 6 November 2001, Larry Bell
reported this allegation to William Boweles, Coliseum Supervisor
and Maintenance Coordinator. William Boweles reported the matter
to his supervisor, Barry Joyce, petitioner's supervisor and
Director of Indoor Athletic Facilities. An investigation into
Jerry Williams's allegations commenced. Petitioner repeatedly
denied he urinated on the bathroom floor.
By letter dated 21 November 2001, Barry Joyce dismissed
petitioner from employment effective 23 November 2001 for improper
personal conduct. The letter stated:
In accordance with the [U]niversity's
Grievance Procedure, you have 15 work days
from receipt of this letter to appeal your
dismissal to the Division of Human Resources.
If alleging discrimination, you may choose not
to utilize the university's grievance
procedure and appeal directly to the State
Personnel Commission within 30 calendar days
from receipt of this letter.
Six days later on 27 November 2001, petitioner filed a
Petition for a Contested Case Hearing in the Office of
Administrative Hearings (OAH). Petitioner's petition asserted
discharge without just cause and that his discharge was based on
age and race discrimination. On 16 April 2002, the administrative
law judge (ALJ) granted respondent's motion for summary judgment
on certain claims, but denied respondent's motion regarding
petitioner's claims for an allegedly excessive workload based on
alleged racial discrimination and/or related retaliation. Petitioner's petition was heard in the OAH on 28 August 2002.
Petitioner's counsel gave an opening statement in which he
summarized the two issues in this case as termination without just
cause and workplace harassment. Respondent's counsel stated during
opening statements that those are the two basic issues in this
case. Later during the hearing, petitioner's counsel announced
petitioner would be proceeding on the issue of termination without
just cause. Respondent did not move to dismiss petitioner's
remaining discrimination claims for abandonment or lack of
jurisdiction at any time during the hearing before the ALJ.
The ALJ in his recommended decision found and concluded,
[t]he evidence in the case and at the hearing leads to no other
conclusion but that it is more likely than not that the
[petitioner] did not commit the offense. The ALJ issued a
recommended decision to the Commission to overturn petitioner's
dismissal from and re-instate his state employment. The ALJ ruled
Barry Joyce, petitioner's supervisor, incorrectly shifted the
burden of proof to petitioner when he stated that he had no reason
not to believe Jerry Williams's allegations. In his recommended
decision, the ALJ also concluded, [t]he [OAH] has jurisdiction
over the parties and over [petitioner's] 'just cause' claim.
The Commission took no additional evidence, declined to adopt
the ALJ's findings of fact and conclusions of law, and addressed
only whether it had jurisdiction over petitioner's just cause
claim. The Commission ordered petitioner's petition be dismissedfor lack of jurisdiction. The Commission explained its decision as
[N]either OAH nor the State Personnel
Commission has any claim before it other than
[petitioner's] just cause claim.
Nothing in the Decision of the Temporary
Administrative Law Judge shows that he
considered the issue of whether the Office of
Administrative Hearings has subject matter
jurisdiction over a just cause claim which has
not been exhausted internally through agency
procedures. Because subject matter
jurisdiction is non-waivable, and cannot be
conferred by stipulation or consent of the
parties, the Commission has had to consider
this threshold issue.
The Commission stated that because petitioner had not
exhausted available administrative remedies through respondent's
internal grievance procedure, his petition did not invoke the
jurisdiction of either the OAH or the Commission.
Petitioner filed a Petition for Judicial Review in the Wake
County Superior Court, which affirmed the decision and order of the
Commission. Petitioner appeals.
II. Respondent's Motion to Dismiss
 Respondent filed a motion to dismiss petitioner's appeal
with this Court. Respondent argues petitioner's appeal should be
dismissed due to petitioner's failure to comply with Rule 10(c) of
the North Carolina Rules of Appellate Procedure. Rule 10(c) states
in part, [a]n assignment of error is sufficient if it directs the
attention of the appellate court to the particular error about
which the question is made, with clear and specific record or
transcript references. N.C.R. App. P. 10(c)(1) (2006). Petitioner's brief contains appropriate record references for
each of his arguments. Those record references refer to the order
In Symons Corp. v. Insurance Co. of North America, we held,
[a]lthough defendant in this case did not technically follow the
rules by failing to list specific page numbers where exceptions
could be found in the record and did not set out these exceptions
in the brief, we do not find these omissions so egregious as to
invoke dismissal. 94 N.C. App. 541, 543, 380 S.E.2d 550, 552
(1989). In Adams v. Kelly Springfield Tire Co., this Court also
declined to dismiss an appeal for an identical rule violation. 123
N.C. App. 681, 682, 474 S.E.2d 793, 794 (1996). Respondent's
motion to dismiss petitioner's appeal is denied.
Petitioner argues he: (1) properly filed his petition
asserting respondent terminated his employment without just cause
directly to the OAH and the Commission pursuant to N.C. Gen. Stat.
§ 125-36(a) and (2) is estopped from raising lack of subject matter
A. Standard of Review
Since we are reviewing a 'review proceeding' in the superior
court and petitioners are appealing pursuant to N.C. Gen. Stat. §
7A-27, we will apply N.C. Gen. Stat. § 150B-52. Lincoln v. N.C.
Dep't of Health & Human Servs.
, 172 N.C. App. 567, 569, 616 S.E.2d
622, 624 (2005). N.C. Gen. Stat. § 150B-52 (2005) states:
A party to a review proceeding in a superior
court may appeal to the appellate divisionfrom the final judgment of the superior court
as provided in G.S. 7A-27. The scope of review
to be applied by the appellate court under
this section is the same as it is for other
This Court has clearly stated the standard of review
applicable to appeals of administrative claims from the superior
The proper standard of review by the trial
court depends upon the particular issues
presented by the appeal. If appellant argues
the agency's decision was based on an error of
law, then de novo review is required. If
appellant questions whether the agency's
decision was supported by the evidence or
whether it was arbitrary or capricious, then
the reviewing court must apply the whole
The reviewing court must determine whether the
evidence is substantial to justify the
agency's decision. A reviewing court may not
substitute its judgment for the agency's, even
if a different conclusion may result under a
whole record review.
As to appellate review of a superior court
order regarding an agency decision, the
appellate court examines the trial court's
order for error of law. The process has been
described as a twofold task: (1) determining
whether the trial court exercised the
appropriate scope of review and, if
appropriate, (2) deciding whether the court
did so properly. As distinguished from the
any competent evidence test and a de novo
review, the whole record test gives a
reviewing court the capability to determine
whether an administrative decision has a
rational basis in the evidence.
Carillon Assisted Living, LLC v. N.C. Dep't of Health & Human
Servs., 175 N.C. App. 265, 270, 623 S.E.2d 629, 633 (internal
citations and quotations omitted), disc. rev. denied, 360 N.C. 531,633 S.E.2d 675 (2006).
Here, the issues under review concern jurisdiction and the
trial court's conclusion to affirm the Commission's ruling that it
lacked jurisdiction over petitioner's claim. A trial court's
conclusions of law . . . are reviewable de novo. Lincoln, 172
N.C. App. at 570, 616 S.E.2d at 624. Whether jurisdiction was
properly invoked is a question of law. In re J.B., 164 N.C. App.
394, 398, 595 S.E.2d 794, 797 (2004).
B. Subject Matter Jurisdiction
 Petitioner argues he correctly filed his petition directly
with the OAH because he alleged termination from employment without
just cause due to discrimination. Petitioner argues his
allegations allow him to appeal directly to the Commission,
pursuant to N.C. Gen. Stat. § 126-36(a) without exhausting
respondent's internal grievance procedure. We agree.
The allegations are determined from the face of the petition
for a contested case hearing. See, e.g., Lee v. N.C. Dep't of
Transp., 175 N.C. App. 698, 701-02, 625 S.E.2d 567, 570, (2006).
The allegations of jurisdiction must be liberally construed.
Winbush v. Winston-Salem State Univ., 165 N.C. App. 520, 522-23,
598 S.E.2d 619, 621-22 (2004) (petition alleging that the employee
was relieved of [his] athletic duties and privileges was
sufficient to allege demotion and invoke jurisdiction of the OAH
and the Commission).
C. Career State Employee
A career state employee is defined as a [s]tate employee whois in a permanent position, and who has been continuously
employed by the State of North Carolina in a position subject to
the State Personnel Act for the immediate 24 preceding months.
N.C. Gen. Stat. § 126-1.1 (2005). Neither party contests the ALJ's
conclusion that petitioner was a career state employee. Our de
novo review is limited to questions so presented in the several
briefs. N.C.R. App. P. 28(a) (2006).
A career state employee who has a grievance arising out of or
due to their employment and who does not allege unlawful
harassment or discrimination must first discuss the problem or
grievance with the employee's supervisor and follow the grievance
procedure established by the employee's department or agency.
N.C. Gen. Stat. § 126-34 (2005).
The employee may seek review directly to the Commission if he
is not satisfied with the final decision of the head of the
department, or if he is unable, within a reasonable period of time,
to obtain a final decision by the head of the department. N.C.
Gen. Stat. § 126-35(a) (2005).
A state employee who has reason to believe that his
dismissal based upon age or race discrimination may appeal directly
to the Commission. N.C. Gen. Stat. § 126-36(a) (2005).
Our Supreme Court has stated that the petitioners who allege
discrimination need not exhaust internal grievances.
[E]mployees whose grievances arise out of
their employment, other than those who allege
discrimination, must have complied with
N.C.G.S. § 126-34, which requires all
permanent state employees having such a
grievance arising out of or due to theiremployment first to discuss their problem or
grievance with their supervisor, then to
follow the grievance procedure established by
their department or agency.
Batten v. N.C. Dept. of Correction, 326 N.C. 338, 343, 389 S.E.2d
35, 38-39 (1990) (emphasis supplied), overruled in part on other
grounds by, Empire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C.
569, 574-75, 447 S.E.2d 768, 772 (1994); see North Carolina
Department of Correction v. Earl Gibson, 308 N.C. 131, 301 S.E.2d
78 (1983). A State employee is provided with the statutory right
to appeal certain claims directly to the SPC . . . without first .
. . exhausting his employer's internal grievance procedures . . .
an employee may appeal a claim of discrimination directly to the
SPC. Lee, 175 N.C. App. at 701, 625 S.E.2d at 570.
Respondent argues that, [t]his Court's holding in Nailing is
directly on point . . . the case law [is] indisputable.
Respondent quotes the following language from Nailing v. UNC-CH.:
In the present case, it is undisputed that
petitioner did not follow Defendant's
grievance procedure regarding the appeal from
her dismissal. Pursuant to N.C. Gen. Stat. §§
126-37(a), -34, the OAH would not, therefore,
have subject matter jurisdiction over
petitioner's appeal from her dismissal under
N.C. Gen. Stat. § 126-35 for lack of just
117 N.C. App. 318, 326, 451 S.E.2d 351, 356 (1994), disc. rev.
denied, 339 N.C. 614, 454 S.E.2d 255 (1995). Respondent's cited
quote from Nailing excludes relevant and controlling language. The
full quote reads:
In the present case, it is undisputed that
petitioner did not follow [Respondent's]
grievance procedure regarding the appeal fromher dismissal. Pursuant to N.C. Gen. Stat. §§
126-37(a), -34, the OAH would not, therefore,
have subject matter jurisdiction over
petitioner's appeal from her dismissal under
N.C. Gen. Stat. § 126-35 for lack of just
cause that does not allege discrimination.
Id. (emphasis supplied). In Nailing, the claim was a series of
disciplinary warnings . . . were unjust and retaliatory. Id. The
petitioner did not allege her just cause discharge claim resulted
Here, petitioner's petition for a contested case hearing
asserts his termination was based upon discharge without just
cause. The petition states, [t]he following occurred due to
discrimination and/or retaliation for opposition to alleged
discrimination. Petitioner checked the lines indicating he was
denied employment and promotion. Petitioner checked the line
indicating termination was forced upon him. Petitioner also
checked the line next to the word other, and wrote due to a lie
by an outside contractor. Petitioner also alleged race and age
discrimination by checking the appropriate lines labeled race and
Petitioner argues he has reason to believe his termination
was based on race and age discrimination and properly filed his
claim directly before the Commission. Reviewed in the light most
favorable to petitioner, and taking petitioner's allegations in his
petition as true, petitioner's allegations sufficiently assert
discrimination to allow him to petition directly to the Commission
without first exhausting internal grievances. Petitioner's petition properly invoked jurisdiction before the
OAH and the Commission on alleged race and age discrimination
despite the fact that his counsel proceeded and prevailed before
the ALJ on a just cause argument at the hearing. See Campbell v.
N.C. Dep't of Transp., 155 N.C. App. 652, 660, 575 S.E.2d 54, 60
(Jurisdiction rests on the allegations of the petitioner.), disc.
rev. denied, 357 N.C. 62, 579 S.E.2d 386 (2003).
N.C. Gen. Stat. § 126-36 allows direct appeal to the
Commission so long as the petitioner has a reason to believe his
termination was based on race or age discrimination. A review of
N.C. Gen. Stat. § 126 and the petitioner's petition reveals no
other requirements. Petitioner's claims in contested case no. 2196
were largely dismissed after respondent moved for and was granted
summary judgment on 16 April 2002. However, petitioner's
allegations under contested case no. 2197, the petition on which
termination without just cause due to discrimination was asserted,
were not dismissed.
Petitioner's counsel gave an opening statement to the ALJ
summarizing the two issues in this case as termination without just
cause and workplace harassment. Respondent's counsel before the
ALJ acknowledged those to be the two basic issues in this case.
In respondent's opening statement, defense counsel advised the ALJ,
I do invite the Court to keep the issue narrow, and we also have
a stipulation that because we've converted this morning to a just
cause, that my witnesses can be heard first. (Emphasis supplied).
After respondent's evidence, petitioner's counsel announced, [w]ewill proceed only on the issue of just cause. Respondent's
failure to move to dismiss on jurisdictional grounds, once
petitioner announced he was proceeding only on just cause, waived
any required exhaustion of internal grievance procedures. The
hearing proceeded before the ALJ, and to his recommended decision,
without any objection.
We hold that the Commission had jurisdiction to review
petitioner's just cause petition, and are unable to determine from
the record the basis for petitioner's reason to believe his
termination was based upon race or age discrimination. We reverse
and remand to the Superior Court for further remand to the
Commission for the Commission to decide the merits of petitioner's
claim of no just cause for his dismissal. If the Commission finds
just cause to support petitioner's termination, then it must
proceed with a hearing and determine whether petitioner has reason
to believe his termination was based upon discrimination.
The issue before us is extremely narrow. Petitioner's
petition on its face asserts a contested case for termination
without just cause based upon age and race discrimination.
Respondent's earlier motion for summary judgment was denied on
petitioner's discrimination claims. Respondent did not contest
jurisdiction or move to dismiss, and stipulated to, petitioner's
just cause claims during the hearing before the ALJ. Petitioner
satisfied the requirements of N.C. Gen. Stat. § 126-36(a) by
alleging discrimination in his petition and directly invoked theCommission's jurisdiction. Respondent waived any requirement that
petitioner first exhaust respondent's internal grievance
The Superior Court's order affirming the Commission's holding
that it did not have jurisdiction to hear petitioner's claim is
reversed. This case is remanded to the Superior Court for further
remand to the Commission for further proceedings consistent with
this opinion. In light of our decision, it is unnecessary to
consider petitioner's second issue regarding estoppel.
Reversed and Remanded.
Judge HUDSON concurs.
Judge WYNN concurs in the result only by separate opinion.
WYNN, Judge, concurring in the result.
I concur only in that part of the majority's holding that
Defendant's failure to move to dismiss on jurisdictional grounds,
once plaintiff announced he was proceeding only on just cause,
waived any required exhaustion of internal grievance procedures.
I further agree that the Commission erred by determining it did not
have jurisdiction to review Plaintiff's just cause petition.
Accordingly, I would remand for the Commission to decide only the
merits of Plaintiff's just cause petition.
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