{
  "id": 11435047,
  "name": "MICHAEL LEROY HILLIS, Petitioner-Appellant v. WINSTON-SALEM STATE UNIVERSITY, Respondent-Appellee",
  "name_abbreviation": "Hillis v. Winston-Salem State University",
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  "casebody": {
    "judges": [
      "Judges GREENE and CAMPBELL concur."
    ],
    "parties": [
      "MICHAEL LEROY HILLIS, Petitioner-Appellant v. WINSTON-SALEM STATE UNIVERSITY, Respondent-Appellee"
    ],
    "opinions": [
      {
        "text": "McGEE, Judge.\nPetitioner 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\u2019s 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 AU\u2019s decision on 24 January 2000. Petitioner appeals.\nPetitioner was employed by respondent under contract from 2 January 1997 to 30 June 1997 as a part-time lecturer and temporary coordinator of respondent\u2019s 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.\nPetitioner 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. \u00a7 126-16.\nThe decision of the ALJ that OAH did not have jurisdiction to hear petitioner\u2019s contested case was a final decision under N.C. Gen. Stat. \u00a7 150B-36(c)(l) (1999), entitling petitioner to immediate judicial review pursuant to N.C. Gen. Stat. \u00a7 150B-43 (1999). The trial court\u2019s scope of review under N.C. Gen. Stat. \u00a7 150B-51(b) (1999) includes assuring that the decision of the AU contains no errors of law, is supported by substantial competent evidence, and is neither arbitrary nor capricious.\nChapter 126 of the North Carolina General Statutes governs the State Personnel System. N.C. Gen. Stat. \u00a7 126-5(a) (1999) states Chapter 126 applies to all State employees not specifically exempted. N.C. Gen. Stat. \u00a7 126-5(cl)(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\u2019s OTP includes teaching duties. Petitioner does not challenge the AU\u2019s Finding of Fact No. 2 that the position of coordinator of the OTP is an exempt position.\nPetitioner alleges that he was discriminated against in violation of N.C. Gen. Stat. \u00a7 126-16 (1999), which requires that \u201c[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[.]\u201d N.C. Gen. Stat. \u00a7 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. \u00a7 126-16. However, while N.C.G.S. \u00a7 126-16 is in Article 6 and therefore is applicable to otherwise exempt University of North Carolina employees, N.C.G.S. \u00a7 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, including the coordinator of respondent\u2019s OTP.\nAlthough N.C.G.S. \u00a7 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\u2019s 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\u2019s OTP is specifically exempt from Article 8 of Chapter 126. As our Court has stated, \u201c \u2018[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.\u2019 \u201d 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)).\nPetitioner contends that he may nonetheless bring a contested case under N.C.G.S. \u00a7 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\u2019s 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\u2019s reasoning and hold instead that the term \u201cState employee\u201d 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. Because the State employment position from which petitioner was terminated and the position for which petitioner\u2019s 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\u2019s contested case. We therefore affirm the order of the trial court.\nHaving addressed the underlying issues, we decline to consider respondent\u2019s cross-assignment of error to the trial court\u2019s failure to address respondent\u2019s contention that petitioner\u2019s petition to the trial court for judicial review was untimely filed.\nAffirmed.\nJudges GREENE and CAMPBELL concur.",
        "type": "majority",
        "author": "McGEE, Judge."
      }
    ],
    "attorneys": [
      "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."
    ],
    "corrections": "",
    "head_matter": "MICHAEL LEROY HILLIS, Petitioner-Appellant v. WINSTON-SALEM STATE UNIVERSITY, Respondent-Appellee\nNo. COA00-585\n(Filed 19 June 2001)\nAdministrative Law\u2014 jurisdiction of Office of Administrative Hearings \u2014 Article 8 discrimination claim \u2014 state employee\nThe trial court did not err by affirming the Office of Administrative Hearings\u2019 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\u2019s occupational therapy program who claimed that he was discriminated against in violation of N.C.G.S. \u00a7 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\u2019s application was denied were both exempt from Article 8; and (2) the term \u201cstate employee\u201d 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.\nAppeal by petitioner from order entered 24 January 2000 by Judge James E. Ragan, III in Superior Court, Wilson County. Heard in the Court of Appeals 27 March 2001.\nVoerman Law Firm, PLLC, by David P. Voerman, for petitioner-appellant.\nAttorney General Roy A. Cooper, by Assistant Attorney General Joyce S. Rutledge, for respondent-appellee."
  },
  "file_name": "0441-01",
  "first_page_order": 469,
  "last_page_order": 472
}