{ "id": 9191458, "name": "LEE WOODBURN, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent", "name_abbreviation": "Woodburn v. North Carolina State University", "decision_date": "2003-03-18", "docket_number": "No. COA02-262", "first_page": "549", "last_page": "556", "citations": [ { "type": "official", "cite": "156 N.C. App. 549" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "369 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "634" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525764 ], "year": 1988, "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0636-01" ] }, { "cite": "549 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "557" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435047 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/144/0441-01" ] }, { "cite": "468 S.E.2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "260", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915821 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/122/0116-01" ] }, { "cite": "454 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2559053, 2559597, 2556144, 2559347, 2556376 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0736-01", "/nc/339/0736-03", "/nc/339/0736-02", "/nc/339/0736-05", "/nc/339/0736-04" ] }, { "cite": "358 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731704, 4726436, 4725646, 4727070 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0517-04", "/nc/320/0517-02", "/nc/320/0517-03", "/nc/320/0517-01" ] }, { "cite": "353 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "84 N.C. App. 482", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168745 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/84/0482-01" ] }, { "cite": "448 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "836-37", "parenthetical": "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)" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524584 ], "year": 1994, "pin_cites": [ { "page": "457", "parenthetical": "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)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0448-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "392", "parenthetical": "quoting Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "year": 1997, "pin_cites": [ { "page": "706", "parenthetical": "quoting Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "546 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "182" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435233 ], "year": 2001, "pin_cites": [ { "page": "475-76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0470-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "560 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "379-80", "parenthetical": "citing Amanini v. N. C. Dept. of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114 (1994)" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 121", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125788 ], "year": 2002, "pin_cites": [ { "page": "129", "parenthetical": "citing Amanini v. N. C. Dept. of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0121-01" ] }, { "cite": "564 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "621" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082973 ], "year": 2002, "pin_cites": [ { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0697-01" ] } ], "analysis": { "cardinality": 780, "char_count": 17724, "ocr_confidence": 0.752, "pagerank": { "raw": 1.5072976098801828e-07, "percentile": 0.666755861055992 }, "sha256": "b57303f3617bc5f2475683f8dca37748a16efafb8ff17a8e646c1f6c9f8a6cb4", "simhash": "1:7969b1323436fd62", "word_count": 2838 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUDSON concur." ], "parties": [ "LEE WOODBURN, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent" ], "opinions": [ { "text": "LEVINSON, Judge.\nPetitioner (Lee Woodburn) appeals from an order dismissing her petition for a contested case hearing before the Office of Administrative Hearings (OAH). We affirm.\nPetitioner was hired by respondent North Carolina State University (the university) in August, 2000, as assistant director of the university\u2019s Office of Disability Services for Students. Shortly after accepting the position, petitioner learned that she was pregnant. Due to medical complications from her pregnancy, petitioner missed work for most of October and November, 2000. On 19 December 2000, the university sent petitioner a certified letter informing her that she was being fired, and giving her 30 days notice. Petitioner received the letter on 2 January 2001, and on 16 February 2001, she filed a petition with OAH for a contested case hearing against the university. She alleged that she was terminated by the university without just cause, and that her termination was due to illegal discrimination based on gender and on a handicapping condition (pregnancy). The university moved to dismiss the petition for lack of subject matter jurisdiction, alleging that (1) OAH lacked jurisdiction over petitioner\u2019s \u201cjust cause\u201d claim, because petitioner was not a career state employee and therefore the \u201cjust cause\u201d provisions of N.C.G.S. \u00a7 126-35(a) were inapplicable to her, and; (2) OAH lacked jurisdiction over petitioner\u2019s discrimination grievance, because it was brought under Article 8 of Chapter 126, from which EPA non-faculty professional positions at the university were expressly exempted.\nThe Administrative Law Judge (ALJ) dismissed petitioner\u2019s \u201cjust cause\u201d claim, which is not before this Court. However, the ALJ denied respondent\u2019s motion to dismiss the discrimination claim, concluding that Chapter 126 afforded petitioner the right to bring her discrimination claim before the OAH. Respondent then filed a new motion to dismiss petitioner\u2019s claim as untimely filed. The ALJ granted this motion, from which petitioner sought review in superior court. Respondent cross-excepted to the ALJ\u2019s denial of its motion to dismiss the discrimination claim. On 3 December 2001, the trial court affirmed the dismissal of petitioner\u2019s contested case for lack of subject matter jurisdiction, on the grounds that her OAH petition was untimely. The court also concluded that petitioner\u2019s assertion of a right under Article 8 of Chapter 126 to bring a contested case before the OAH was \u201cunavailing,\u201d although it did not enter an order expressly ruling on this issue. Plaintiff appealed from the trial court\u2019s order, while respondent cross-assigned as error the trial court\u2019s failure to rule on the issue of OAH jurisdiction over discrimination claims brought by EPA employees. On 13 March 2002, petitioner filed a petition for discretionary review by the North Carolina Supreme Court, seeking to bypass this Court. Her petition was denied on 4 April 2002.\nWe first address respondent\u2019s motion to strike petitioner\u2019s appendix. The Record on Appeal was settled 11 February 2002. In April, 2002, petitioner served her brief on respondent, consisting of 35 pages of text, and a 71 page \u201cappendix\u201d containing various SPC and AU opinions. On 10 May 2002, respondent filed a motion to strike the appendix. Respondent argues that the petitioner violated N.C.R. App. P. 9 and 28, by filing documents that were neither agreed on by the parties to be part of the record, nor submitted by petitioner to this Court pursuant to a motion to amend the record. We agree. Further, we do not find the materials in the proposed appendix necessary to our resolution of the issues presented herein. Respondent\u2019s motion to strike appendix is therefore granted.\nStandard of Review\nPetitioner appealed to the trial court from the ALJ\u2019s pre-hearing dismissal of her claim as untimely. \u201cAn order of the ALJ issued pursuant to a written pre-hearing motion granting a party\u2019s requested relief for failure of the other party to comply with procedural requirements is a final decision . . . entitling petitioner] to immediate judicial review[.]\u201d 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. \u00a7 150B-43 (2001) (\u201c[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 . . .\u201d). N.C.G.S. \u00a7 150B-51(b) (2001) authorizes the trial court to reverse or modify an agency\u2019s final decision if \u201csubstantial rights\u201d of the petitioner may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions were:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3)Made upon unlawful procedure;\n(4) Affected by other error of law;\n(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\n(6) Arbitrary [or] capricious. . . .\nN.C.G.S. \u00a7 150B-51(b). \u201cThe 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 \u2018whole record\u2019 test is applied to allegations that the administrative agency decision was not supported by the evidence, or was arbitrary and capricious.\u201d Zimmerman v. Appalachian State Univ., 149 N.C. App. 121, 129, 560 S.E.2d 374, 379-80 (2002) (citing Amanini v. N. C. Dept. of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114 (1994)). \u201cDe novo review requires a court to consider the question anew, as if the agency has not addressed it.\u201d Blalock v. N.C. Dep\u2019t of Health and Human Servs., 143 N.C. App. 470, 475-76, 546 S.E.2d 177, 182 (2001). Under the whole record test, \u201c \u2018the reviewing court [must] examine all competent evidence (the \u2018whole record\u2019) in order to determine whether the agency decision is supported by \u201csubstantial evidence.\u2019 \u201d ACT-UP Triangle v. Commission for Health Senices, 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.\nPetitioner 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.\nChapter 126 of the General Statutes governs the State Personnel System. The scope of the chapter\u2019s authority is set out in N.C.G.S. \u00a7 126-5 (2001), which states that \u201c[t]he provisions of this Chapter shall apply to [a]ll State employees not herein exempt[.]\u201d G.S. \u00a7 126-5(a)(l) (emphasis added). The statute further states that:\n(c) Except as to . . . Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to:\n(1) A State employee who is not a career State employee as defined by this Chapter. . . .\n(cl) Except as to the provisions of Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to:. . . .\n(8) Instructional and research staff, physicians, and dentists of The University of North Carolina.\nN.C.G.S. \u00a7 126-5(c)(l) and (d)(8) (2001).\nPetitioner is not a \u201ccareer state employee,\u201d as the term is defined by N.C.G.S. \u00a7 126-1.1 (an employee of the State who is \u201cin a permanent position appointment\u201d and who has held \u201ca position subject to the State Personnel Act for the immediate 24 preceding months\u201d). Further, her position is classified as \u201cinstructional and research staff ... of the University of North Carolina.\u201d Petitioner is therefore exempt from the ambit of Chapter 126 by either of the statutory criteria. Moreover, the university expressly categorizes her position as \u201cEPA\u201d or \u201cexempt from SPA.\u201d Indeed, petitioner concedes her status as an EPA employee, and characterizes the dispositive issue in this case as \u201cwhether EPA employees can ever bring contested cases.\u201d We conclude that petitioner\u2019s position, as a university EPA employee, is explicitly exempted from Chapter 126, with the sole exception of Articles 6 and 7.\nArticle 6 of Chapter 126 sets out the State policy regarding discrimination in employment. Petitioner\u2019s claim alleges a violation of a provision of Article 6, N.C.G.S. \u00a7 126-16 (2001), which provides in relevant part 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\nArticle 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. \u00a7 126-16. However, G.S. \u00a7 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. \u201c \u2018[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.\u2019 \u201d 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:\nN.C.G.S. \u00a7 126-5 states in particular terms which employees are covered by Chapter 126. On the other hand, N.C.G.S. \u00a7 126-16 . . . address[es] the same subject matter in general terms. Moreover,.. . N.C.G.S. \u00a7 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. \u00a7 126-5 controls which employees are subject to Chapter 126. The petitioner is not within that class of employees.\nId. at 119, 468 S.E.2d at 260 (emphasis added).\nWe find Conran applicable to the present case, and reiterate that the exemptions in N.C.G.S. \u00a7 126-5 foreclose petitioner\u2019s reliance on any of the provisions in Chapter 126, except for Articles 6 and 7.\nNotwithstanding N.C.G.S. \u00a7 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. \u00a7 126-34.1, which states in pertinent part that:\nA 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\u2019s . . . sex, ... or handicapping condition^]\nN.C.G.S. \u00a7 126-34.1(a)(2)(b) (2001). Petitioner essentially argues that, because the statute refers to state employees without adding \u201cexcept those already exempted,\u201d that all state employees are included. She urges this Court \u201cconstrue\u201d Article 6, \u00a7 126-16, with \u00a7 126-34.1(a)(2), and to hold that \u00a7 126-34.1 applies to all state employees, including those expressly excluded from the purview of Chapter 126. Petitioner\u2019s proposed construction of the statute would require us to ignore the plain and definite exclusion of petitioner\u2019s job from Chapter 126. This we decline to do. Further, we disagree with petitioner that there is any \u201cinconsistency\u201d between G.S. \u00a7 126-34 and G.S. \u00a7 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. \u00a7 126-5, had no need to repeat the same list of excluded employees in other parts of Chapter 126.\nThis 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. \u00a7 126-34.1. The Court noted that N.C.G.S. \u00a7 126-5(cl)(8) specifically exempts the \u201c [instructional and research staff ... of the University of North Carolina\u201d from all \u201cprovisions of [Chapter 126 except] Articles 6 and 7\u201d and that, like the present petitioner, the plaintiffs position was exempt from the SPA. This Court held:\nwhile 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[.] ... As our Court has stated, \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\nHillis at 443-44, 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.\nPetitioner 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) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d).\nNor do we agree with petitioner that Hillis should be reversed. Petitioner argues that in Hillis, this Court \u201cwith one fatal stroke\u201d effectively \u201cstripped\u201d employees of their right to a hearing on \u201cdiscrimination in the workplace,\u201d and \u201ctransformed the substantial rights guarded by Article 6 for a quarter of a century to a mirage [.]\u201d Petitioner\u2019s 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\u2019s preliminary decision; (3) appeal from the Chancellor\u2019s 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.\nWe conclude that, because N.C.G.S. \u00a7 126-5(cl)(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.\nPetitioner 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 contested case hearing before the OAH, the issue of the timeliness of her petition need not be addressed.\nWe hold that the OAH does not have jurisdiction over employees whose positions or departments are statutorily excluded from its reach. Because petitioner\u2019s 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.\n\u25a0 For the reasons discussed above, the order entered by the trial court affirming the ALJ\u2019s dismissal of her contested case claim is\nAffirmed.\nJudges McGEE and HUDSON concur.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "McSurely & Osment, by Ashley Osment, for petitioner-appellant.", "Attorney General Roy Cooper, by Assistant Attorney General Joyce Rutledge, for respondent-appellees." ], "corrections": "", "head_matter": "LEE WOODBURN, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent\nNo. COA02-262\n(Filed 18 March 2003)\n1. Appeal and Error\u2014 briefs \u2014 motion to strike appendix\nA motion to strike an appendix to a brief was granted by the Court of Appeals where the appendix contained various State Personnel Commission and administrative law judge opinions that had not been agreed upon by the parties as part of the record, had not been submitted pursuant to a motion to amend the record, and were not necessary to the resolution of the issues in the case.\n2. Administrative Law\u2014 dismissal of claim \u2014 standard of review \u2014 de novo\nDe novo review was the proper standard for the trial court to use when reviewing an administrative law judge\u2019s dismissal of a claim as untimely.\n3. Administrative Law\u2014 exempt position \u2014 employment discrimination claim \u2014 no OAH jurisdiction\nA university employee in an exempt position bringing a discrimination claim did not have a right to a hearing before the Office of Administrative Hearings. N.C.G.S. \u00a7 126-16 (employment discrimination) applies to all state employees without regard to position or status, but that statute neither addresses procedural avenues nor entitles a petitioner to choose a review scheme from which she is otherwise excluded by N.C.G.S. \u00a7 126-5. Exempt university employees have available review procedures which begin with university grievance committees and lead to review by a superior court judge and an appellate court.\nAppeal by petitioner from order entered 3 December 2001 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 16 October 2002.\nMcSurely & Osment, by Ashley Osment, for petitioner-appellant.\nAttorney General Roy Cooper, by Assistant Attorney General Joyce Rutledge, for respondent-appellees." }, "file_name": "0549-01", "first_page_order": 579, "last_page_order": 586 }