{ "id": 8960084, "name": "THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Petitioner v. MARTIN FEINSTEIN, Respondent; UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Petitioner v. HOWARD GORMAN, Respondent; NORTH CAROLINA STATE UNIVERSITY, Petitioner v. PEARL A. WILKINS, Respondent", "name_abbreviation": "University of North Carolina at Chapel Hill v. Feinstein", "decision_date": "2003-12-16", "docket_number": "No. COA03-225", "first_page": "700", "last_page": "706", "citations": [ { "type": "official", "cite": "161 N.C. App. 700" } ], "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": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1990, "pin_cites": [ { "page": "141" }, { "page": "217" }, { "page": "141" }, { "page": "217" }, { "page": "141-42" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "90 S.E. 948", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "pin_cites": [ { "page": "950" } ], "opinion_index": 0 }, { "cite": "172 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "year": 1916, "pin_cites": [ { "page": "724" } ], "opinion_index": 0 }, { "cite": "274 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2677471 ], "year": 1981, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0432-01" ] }, { "cite": "354 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "498", "parenthetical": "the statutory inclusion of specific things implies the exclusion of others" } ], "opinion_index": 0 }, { "cite": "319 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4744038 ], "year": 1987, "pin_cites": [ { "page": "303", "parenthetical": "the statutory inclusion of specific things implies the exclusion of others" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0298-01" ] }, { "cite": "476 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "385" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 158", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888856 ], "year": 1996, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0158-01" ] }, { "cite": "259 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "564" } ], "opinion_index": 0 }, { "cite": "298 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572766 ], "year": 1979, "pin_cites": [ { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0476-01" ] }, { "cite": "451 S.E.2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 314", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2520680, 2518128, 2519168 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0314-01", "/nc/338/0314-02", "/nc/338/0314-03" ] }, { "cite": "447 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "774" } ], "opinion_index": 0 }, { "cite": "337 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551286 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0569-01" ] }, { "cite": "389 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "38" } ], "opinion_index": 0 }, { "cite": "326 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305257 ], "year": 1990, "pin_cites": [ { "page": "342-43" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0338-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "opinion_index": 0 }, { "cite": "481 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "692" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11868692 ], "year": 1997, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0457-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "pin_cites": [ { "page": "(c)" }, { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-34.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 24, "pin_cites": [ { "page": "(a)" }, { "page": "(e)" }, { "page": "(e)", "parenthetical": "emphasis supplied" }, { "page": "(a)(1)" }, { "page": "(a)(1)" }, { "page": "(a)(l)" }, { "page": "(e)", "parenthetical": "emphasis supplied" }, { "page": "(e)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 630, "char_count": 13220, "ocr_confidence": 0.777, "pagerank": { "raw": 1.51920366141903e-07, "percentile": 0.6689843693589858 }, "sha256": "4e7f3ad822d229eed6458ac7d33dd8498c64af691f5b5423ac45059c94572fc4", "simhash": "1:1b603142723ff5d2", "word_count": 2079 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and BRYANT concur." ], "parties": [ "THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Petitioner v. MARTIN FEINSTEIN, Respondent UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Petitioner v. HOWARD GORMAN, Respondent NORTH CAROLINA STATE UNIVERSITY, Petitioner v. PEARL A. WILKINS, Respondent" ], "opinions": [ { "text": "TYSON, Judge.\nThe University of North Carolina at Chapel Hill (\u201cUNC-CH\u201d) and North Carolina State University (\u201cNCSU\u201d) (collectively, \u201cpetitioners\u201d) appeal from the 12 November 2002 order holding that: (1) N.C. Gen. Stat. \u00a7 126-34.1 does not supersede N.C. Gen. Stat. \u00a7 126-35(c), and (2) that the Office of Administrative Hearings (\u201cOAH\u201d) has jurisdiction to determine whether petitioners had just cause to terminate the employment of Howard Gorman (\u201cGorman\u201d), Pearl A. Wilkins (\u201cWilkins\u201d), and Martin H. Feinstein (\u201cFeinstein\u201d) (collectively, \u201crespondents\u201d) through a reduction in force (\u201cRIF\u201d). We reverse and remand.\nI. Background\nFeinstein worked in the Academic Technology and Networks Department at UNC-CH. On 17 December 2001, Feinstein was dismissed from his position due to permanent reductions in State funding reductions to UNC-CH\u2019s budget. UNC-CH\u2019s Information Technology Division was ordered to reduce their budget by four percent for fiscal year 2001-2002. UNC-CH decided to eliminate Feinstein\u2019s position. Feinstein\u2019s RIF was upheld after review within the UNC-CH internal grievance process.\nGorman worked as manager of UNC-CH\u2019s Materials and Support Department. On 31 December 2001, Gorman\u2019s position was also eliminated due to permanent reductions in State funding received by UNC-CH. In UNC-CH\u2019s internal grievance process, Gorman claimed his notice did not conform to UNC-CH\u2019s RIF policy. Chancellor James Moeser (\u201cChancellor Moeser\u201d) found that the notice did not address the efforts made to avoid the elimination of Gorman\u2019s position. Accordingly, Chancellor Moeser directed Roger Patterson, Associate Vice Chancellor for Finance, to address these issues and to give Gorman an additional thirty days\u2019 pay with benefits, in order to satisfy UNC-CH\u2019s RIF requirements.\nWilkins worked as the Customer Operations Manager in the Office of Communication Technologies at NCSU. Wilkins\u2019s position was eliminated due to reductions of State funding received by NCSU. Wilkins appealed her layoff through NCSU\u2019s grievance process. The review panel concluded that elimination of her position was appropriate. George Worsley, Vice Chancellor for Finance and Business, reviewed the panel\u2019s findings, accepted the panel\u2019s recommendation, and upheld Wilkins\u2019s RIF.\nRespondents, subsequently filed OAH petitions in 2002 for contested case hearings alleging improper RIFs. Petitioners moved for, but were denied, dismissal of OAH petitions. Petitioners filed Petitions for Writ of Supersedeas, Certiorari, and Prohibition to OAH in Wake County Superior Court. The trial court found that respondents were entitled to OAH hearings to determine whether petitioners had just cause to terminate respondents\u2019 positions. Petitioners appeal.\nII. Issue\nDid the trial court err in upholding OAH of jurisdiction over RIF appeals on lack of just cause and procedural violations?\nIII. Jurisdiction of OAH\nPetitioners contend that N.C. Gen. Stat. \u00a7 126-34.1 is the sole source of appellate rights for university employees covered by the State Personnel Act. They argue the statute excludes appeals to OAH of RIFs on grounds of lack of just cause and procedural violations. We agree.\nThe General Assembly expressly exempted the University of North Carolina from all provisions of the North Carolina Administrative Procedure Act except those of Article 4. N.C. Gen. Stat. \u00a7 150B-1(f) (2001); see also Beauchesne v. University of N.C. at Chapel Hill, 125 N.C. App. 457, 468, 481 S.E.2d 685, 692 (1997). The rights of university employees to challenge any employment action in OAH must derive independently, from The State Personnel Act. N.C. Gen. Stat. \u00a7 126 (2001); see also Batten v. N.C. Dep\u2019t of Correction, 326 N.C. 338, 342-43, 389 S.E.2d 35, 38 (1990), rev\u2019d on other grounds, Empire Power Co. v. N.C. Dep\u2019t of E.H.N.R., 337 N.C. 569, 447 S.E.2d 768, reh\u2019g denied, 338 N.C. 314, 451 S.E.2d 634 (1994). OAH\u2019s jurisdiction over appeals of university employee grievances exists solely within the limits established by the State Personnel Act. Empire Power Co., 337 N.C. at 579, 447 S.E.2d at 774.\nIn 1995, the General Assembly enacted N.C. Gen. Stat. \u00a7 126-34.1, which specifically defined which employee appeals constitute contested case issues OAH may hear. N.C. Gen. Stat. \u00a7 126-34.1(a) (2001) explicitly states that university employees may file in OAH \u201conly as to the following personnel actions or issues.\u201d N.C. Gen. Stat. \u00a7 126-34.1(e) states that \u201c[a]ny issue for which appeal to the State Personnel Commission through the filing of a contested case . . . [that] has not been specifically authorized by this section shall not be grounds for a contested case under Chapter 126.\u201d N.C. Gen. Stat. \u00a7 126-34.1(e) (2001) (emphasis supplied).\nOAH\u2019s jurisdiction over state employee RIFs are specifically limited to two narrowly defined circumstances:\n(2)(b) Demotion, reduction in force, or termination of an employee in retaliation for the employee\u2019s opposition to alleged discrimination ....\n(4) Denial of the veteran\u2019s preference ... or in connection with a reduction in force, for an eligible veteran ....\nN.C. Gen. Stat. \u00a7 126-34.1 (2001). Respondents do not fall into either one of these two defined circumstances.\nA. Lack of Just Cause\nRespondents claim that they were separated from State employment without just cause and that N.C. Gen. Stat. \u00a7 126-34.1(a)(1) provides them with a basis for appealing their RIFs. They assert N.C. Gen. Stat. \u00a7 126-34.1(a)(1) specifically refers to N.C. Gen. Stat. \u00a7 126-35, which defines actions based on just cause.\nN.C. Gen. Stat. \u00a7 126-34.1(a)(l) specifically refers to \u201cdismissal, demotion, or suspension\u201d without just cause but does not mention RIFs for lack of just cause as a basis for appealing a RIF. RIFs are specifically referred to only twice in the statute. The General Assembly clearly stated in N.C. Gen. Stat. \u00a7 126-34.1 that a contested case that \u201chas not been specifically authorized by this section shall not be grounds for a contested case under Chapter 126.\u201d N.C. Gen. Stat. \u00a7 126-34.1(e) (2001) (emphasis supplied).\nA fundamental rule of statutory interpretation requires the plain meaning of the statute to control its applicability. Campbell v. Church, 298 N.C. 476, 484, 259 S.E.2d 558, 564 (1979). A statute that provides a clear enumeration of its inclusion is read to exclude what the General Assembly did not enumerate. See Dunn v. N.C. Dep\u2019t of Human Resources, 124 N.C. App. 158, 161, 476 S.E.2d 383, 385 (1996); see also Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 303, 354 S.E.2d 495, 498 (1987) (the statutory inclusion of specific things implies the exclusion of others). Where statutory language is clear and unambiguous, there is no room for judicial construction. Begley v. Employment Security Comm\u2019n, 50 N.C. App. 432, 436, 274 S.E.2d 370, 373 (1981). The language of N.C. Gen. Stat. \u00a7 126-34.1 clearly and unambiguously states that the statutory list of appeal grounds in N.C.Gen. Stat. \u00a7 126-34.1 is exclusive. This list does not provide for appeals to OAH of RIFs based on lack of just cause.\nFurthermore, N.C. Gen. Stat. \u00a7 126-34.1 was enacted in 1995, five years after N.C. Gen. Stat. \u00a7 126-35. By its own terms of exclusion, N.C. Gen. Stat. \u00a7 126-34.1 supersedes and controls over any contrary earlier enactments. N.C. Gen. Stat. \u00a7 126-35(c) existed as statutory law when N.C. Gen. Stat. \u00a7 126-34.1(e) was enacted. Our Supreme Court has held that construing conflicting statutes to give validity and effect to both is only possible if it can be done without destroying the evident intent and meaning of the later enacted act. Bank v. Loven, 172 N.C. 719, 724, 90 S.E. 948, 950 (1916). Given its clear and unambiguous language, the later enacted N.C. Gen. Stat. \u00a7 126-34.1 supplants N.C. Gen. Stat. \u00a7 126-35. Otherwise, the evident intent of the later enacted N.C. Gen. Stat. \u00a7 126-34.1 in setting out the specific contested cases that are appealable to OAH would be eliminated. Id.\nB. Procedural Violations\nPetitioners contend that N.C. Gen. Stat. \u00a7 126-34.1 also excludes appeals of RIFs on grounds of procedural violations. We agree.\nN.C. Gen. Stat. \u00a7 126-34.1 was ratified during the 1995 legislative session. The statute was embodied in House Bill 438 and Senate Bill 405. These bills originally set forth seven grounds for bringing contested cases before OAH. The seventh of these grounds read: \u201cReduction in force in violation of the policies and rules of the State Personnel Commission.\u201d H.R. 438, 1995 Sess. (N.C. 1995); S. 405, 1995 Sess. (N.C. 1995). On 28 March 1995, the House of Representatives amended its bill by deleting this seventh ground for a contested case hearing. H.R. 438, Committee Substitute (28 March 1995). The Senate deleted the seventh ground as well on 20 April 1995. S. 405, Committee Substitute (20 April 1995). The bill ultimately ratified and enacted by the General Assembly excluded any reference to RIF procedural violations as a contested case before OAH. S. 405, 1995 Session (N.C. 1995).\nIn Burgess v. Your House of Raleigh, our Supreme Court held that legislative history documenting rejection of a statutory provision is probative of the intent to exclude that provision from the statute as enacted. 326 N.C. 205, 209, 388 S.E.2d 134, 141 (1990). The Court found that the General Assembly had considered an amendment to the Communicable Disease Act that would have extended anti-discrimination protections to individuals with Human Immunodeficiency Virus (\u201cHIV\u201d). Id. at 217, 388 S.E.2d at 141. The bill was amended and the anti-discrimination provisions were deleted. Id. Relying on the General Assembly\u2019s consideration and rejection of the anti-discrimination provisions, our Supreme Court concluded that the Handicapped Persons Act was not intended to protect those with HIV and stated, \u201c[t]he General Assembly specifically addressed the particular question at issue here and affirmatively chose not to include persons infected with the HIV virus within the scope of the Handicapped Persons Act.\u201d Id. at 217, 388 S.E.2d at 141-42.\nHere, the General Assembly considered granting state employees the right to bring RIF policy violations as a contested case before OAH. Both the House and Senate bills were amended to delete this particular ground from contested cases. The ratified bill enacted excluded this ground. The General Assembly clearly intended to deny OAH jurisdiction over challenges to RIFs on procedural violation grounds and to grant state employees the right to bring only those RIF claims that are specifically set out in N.C. Gen. Stat. \u00a7 126-34.1 before OAH. Respondents have not challenged their RIFs on any of the grounds set out under N.C. Gen. Stat. \u00a7 126-34.1. We hold OAH has no jurisdiction to hear the petitions.\nIV. Conclusion\nThe trial court erred in holding that the later enacted N.C. Gen. Stat. \u00a7 126-34.1 does not supersede N.C. Gen. Stat. \u00a7 126-35(c) and that OAH has jurisdiction to determine whether respondents\u2019 RIFs were based on lack of just cause or procedural violations. The order of the trial court is reversed. We remand with instructions to the superior court to enter an order directing OAH to grant petitioners\u2019 motions to dismiss on the grounds of lack of statutory authority.\nReversed and Remanded with instructions.\nJudges McCULLOUGH and BRYANT concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Celia Grasty Lata and Special Deputy Attorney General Thomas J. Ziko, for petitioners-appellants.", "Schiller & Schiller, PLLC, by Marvin Schiller and David G. Schiller, for respondents-appellees Howard Gorman and Pearl A. Wilkins.", "Martin Feinstein, respondent-appellee, pro se." ], "corrections": "", "head_matter": "THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Petitioner v. MARTIN FEINSTEIN, Respondent UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Petitioner v. HOWARD GORMAN, Respondent NORTH CAROLINA STATE UNIVERSITY, Petitioner v. PEARL A. WILKINS, Respondent\nNo. COA03-225\n(Filed 16 December 2003)\nPublic Officers and Employees\u2014 termination of university employees \u2014 reduction in force \u2014 jurisdiction of Office of Administrative Hearings\nThe trial court erred by holding that the later enacted N.C.G.S. \u00a7 126-34.1 did not supersede N.C.G.S. \u00a7 126-35(c) and that the Office of Administrative Hearings (OAH) had jurisdiction to determine whether petitioners had just cause to terminate respondent university employees through a reduction in force (RIF), because: (1) N.C.G.S. \u00a7 126-34.1 was enacted five years after N.C.G.S. \u00a7 126-35, and by its own terms of exclusion, N.C.G.S. \u00a7 126-34.1 supersedes and controls over any contrary earlier enactments; (2) N.C.G.S. \u00a7 126-34.1 supplants N.C.G.S. \u00a7 126-35 or otherwise the evident intent of the later enacted N.C.G.S. \u00a7 126-34.1 in setting out the specific contested cases that are appealable to OAH would be eliminated; and (3) N.C.G.S. \u00a7 126-34.1 is the sole source of appellate rights for university employees covered by the State Personnel Act, and it excludes appeals to OAH of RIFs on grounds of lack of just cause and procedural violations.\nAppeal by petitioners from order entered 12 November 2002 by Judge Howard E. Manning, Jr., in Wake County Superior Court. Heard in the Court of Appeals 12 November 2003.\nAttorney General Roy Cooper, by Assistant Attorney General Celia Grasty Lata and Special Deputy Attorney General Thomas J. Ziko, for petitioners-appellants.\nSchiller & Schiller, PLLC, by Marvin Schiller and David G. Schiller, for respondents-appellees Howard Gorman and Pearl A. Wilkins.\nMartin Feinstein, respondent-appellee, pro se." }, "file_name": "0700-01", "first_page_order": 730, "last_page_order": 736 }