{ "id": 8998748, "name": "MICHAEL T. WINBUSH, Petitioner v. WINSTON-SALEM STATE UNIVERSITY, Respondent", "name_abbreviation": "Winbush v. Winston-Salem State University", "decision_date": "2004-07-20", "docket_number": "No. COA03-891", "first_page": "520", "last_page": "524", "citations": [ { "type": "official", "cite": "165 N.C. App. 520" } ], "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": "335 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "927", "parenthetical": "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" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524616 ], "year": 1985, "pin_cites": [ { "page": "611", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0606-01" ] }, { "cite": "458 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790240, 790095, 790106, 790234, 790175 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0358-02", "/nc/340/0358-01", "/nc/340/0358-04", "/nc/340/0358-05", "/nc/340/0358-03" ] }, { "cite": "454 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "118 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917803 ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0291-01" ] }, { "cite": "112 L. E. 2d 849", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "498 U.S. 1068", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6559584, 6559683, 6559909, 6559881, 6559658, 6559564, 6559630, 6559762, 6559733, 6559798, 6559608, 6559705, 6559839, 6559935 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/us/498/1068-02", "/us/498/1068-06", "/us/498/1068-13", "/us/498/1068-12", "/us/498/1068-05", "/us/498/1068-01", "/us/498/1068-04", "/us/498/1068-09", "/us/498/1068-08", "/us/498/1068-10", "/us/498/1068-03", "/us/498/1068-07", "/us/498/1068-11", "/us/498/1068-14" ] }, { "cite": "909 F.2d 94", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10532630 ], "year": 1990, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/f2d/909/0094-01" ] }, { "cite": "417 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "825", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 664", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313455 ], "year": 1992, "pin_cites": [ { "page": "666", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0664-01" ] }, { "cite": "487 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "174", "parenthetical": "\"[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\"" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 774", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713387 ], "year": 1997, "pin_cites": [ { "page": "781", "parenthetical": "\"[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\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0774-01" ] }, { "cite": "447 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551286 ], "year": 1994, "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": "41", "parenthetical": "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\"" } ], "opinion_index": 0 }, { "cite": "326 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305257 ], "year": 1990, "pin_cites": [ { "page": "346-47", "parenthetical": "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\"" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0338-01" ] }, { "cite": "579 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491520, 491684, 491750, 491596, 491725, 491760, 491635, 491479 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0062-01", "/nc/357/0062-03", "/nc/357/0062-04", "/nc/357/0062-08", "/nc/357/0062-06", "/nc/357/0062-02", "/nc/357/0062-07", "/nc/357/0062-05" ] }, { "cite": "575 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 652", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251686 ], "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0652-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "590 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "402" }, { "page": "403" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8960084 ], "year": 2003, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0700-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-34.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(a)(l)" }, { "page": "(a)(1)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 565, "char_count": 11739, "ocr_confidence": 0.741, "pagerank": { "raw": 1.20455598460854e-07, "percentile": 0.5945107224398025 }, "sha256": "52375f6170b0275ed988897a9fc4dbec93ac0e4641b7423734f0b74bdb5d6fc4", "simhash": "1:7710f3ccf2b78362", "word_count": 1867 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and ELMORE concur." ], "parties": [ "MICHAEL T. WINBUSH, Petitioner v. WINSTON-SALEM STATE UNIVERSITY, Respondent" ], "opinions": [ { "text": "BRYANT, Judge.\nWinston-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 of Michael T. Winbush (petitioner) to his duties as Assistant Football Coach and Head Women\u2019s Softball Coach.\nOn 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 \u201crelieved of [his] athletic duties and privileges effective June 30, 2000\u201d by respondent\u2019s Athletics Director. In a recommended decision, the administrative law judge (ALT) who initially heard the case concluded: (1) the OAH had \u201cjurisdiction over this contested matter\u201d and (2) petitioner was demoted without just cause. The SPC, however, rejected the ALJ\u2019s findings of fact and conclusions of law as \u201cerroneous as a matter of law.\u201d In rejecting the AU\u2019s recommended decision in its entirety, the SPC stated: \u201cThe Commission finds that neither the Al J nor the Commission have jurisdiction under Chapter 126 over [petitioner'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.\u201d Petitioner appealed the SPC ruling to the superior court.\nIn 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:\n33. 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.\n35. [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.\nThe 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.\nThe 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. \u00a7 126-34.1(a)(l).\nI\nThe 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\u2019s 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. \u00a7 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. \u00a7 126-34.1(a) (2003) (explicitly stating that State employees may file in the OAH \u201conly as to the following personnel actions or issues\u201d).\nN.C. Gen. Stat. \u00a7 126-34.1 provides in pertinent part that a State employee or former State employee has the right to challenge his \u201c[dismissal, demotion, or suspension without pay based upon an alleged violation of G.S. 126-35, if the employee is a career State employee.\u201d N.C.G.S. \u00a7 126-34.1(a)(l) (2003). Pursuant to N.C. Gen. Stat. \u00a7 126-35, \u201c[n]o career State employee subject to the [SPA] shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.\u201d N.C.G.S. \u00a7 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\u2019t of Transp., 155 N.C. App. 652, 660, 575 S.E.2d 54, 60 (for claim under N.C. Gen. Stat. \u00a7 126-34.1, \u201c(jJurisdiction rests on the allegations of the petitioner\u201d), disc, review denied, 357 N.C. 62, 579 S.E.2d 386 (2003); see also Batten v. N.C. Dep\u2019t of Correction, 326 N.C. 338, 346-47, 389 S.E.2d 35, 41 (1990) (holding that the mere \u201callegation that an employee has been \u2018demoted in rank without sufficient cause\u2019 invokes ... the jurisdiction of the State Personnel Commission [and] that of the OAH\u201d), disapproved of on other grounds by Empire Power Co. v. N.C. Dep\u2019t 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) (\u201c[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\u201d).\nIn this case, the petition filed by petitioner alleged he had been discharged without just cause or reassigned without just cause when he was \u201crelieved of [his] athletic duties and privileges effective June 30, 2000\u201d by respondent\u2019s Athletics Director. Under our liberal rules of construction for allegations raised in a party\u2019s pleading, the petition thus alleges either a discharge or demotion. See N.C.G.S. \u00a7 1A-1, Rule 8(f) (2003) (the allegations in a pleading must be liberally construed so \u201cas to do substantial justice\u201d); Black\u2019s Law Dictionary 444 (7th ed. 1999) (to \u201cdemote\u201d is defined as \u201c [t] o lower in rank, position, or pay\u201d). Accordingly, the superior court properly concluded that the OAH and SPC had jurisdiction to hear the petition.\nII\nWe 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. \u00a7 126-34.1(a)(1).\nThe evidence establishes that petitioner was neither dismissed nor demoted from his respondent employment. In 1994, respondent\u2019s Student Affairs Department hired petitioner to fill the position of \u201cRecreation Worker II.\u201d Petitioner\u2019s annual salary was $22,557.00, which was equivalent to a \u201cpaygrade 64\u201d on the N.C. State Salary Schedule. As a respondent employee, petitioner\u2019s primary responsibility was to coach football and women\u2019s softball. In April 2000, petitioner was commended for his coaching accomplishments and told he would receive an additional 10% raise in salary effective 1 July 2000.\nIn June 2000, a dispute arose over petitioner\u2019s 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.\nThis 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. \u201cBecause petitioner [is] a permanent State employee, it is well-settled that he [has] a \u2018property interest of continued employment created by state law and protected by the Due Process Clause.\u2019 \u201d Nix v. Dep\u2019t of Administration, 106 N.C. App. 664, 666, 417 S.E.2d 823, 825 (1992) (citation omitted). That interest \u201cdoes not extend to the right to possess or retain a particular job or to perform particular services.\u201d 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\u2019s 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).\nAs previously stated, a demotion is defined as a \u201clowering] in rank, position, or pay,\u201d Black\u2019s Law Dictionary 444. Rank is defined as \u201crelative standing or position\u201d within a group. Webster\u2019s 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 \u201cin a lower paygrade.\u201d Gibbs v. Dept. of Human Resources, 77 N.C. App. 606, 611, 335 S.E.2d 924, 927 (1985) (rejecting a petitioner\u2019s 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\u2019s 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.\nAffirmed in part, reversed in part.\nJudges McCULLOUGH and ELMORE concur.\n. The parties do not dispute that petitioner qualifies as a career State employee.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "MICHAEL T. WINBUSH, Petitioner v. WINSTON-SALEM STATE UNIVERSITY, Respondent\nNo. COA03-891\n(Filed 20 July 2004)\n1. Public Officers and Employees\u2014 university coach \u2014 jurisdiction to hear petition to reinstate duties\nThe superior court did not err by concluding that the Office of Administrative Hearings (OAH) and State Personnel Commission (SPC) had jurisdiction to hear the petition seeking to reinstate petitioner\u2019s duties as Assistant Football Coach and Head Women\u2019s Softball Coach at Winston-Salem State University, because: (1) 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; and (2) in this case petitioner alleged he had been discharged without just cause or reassigned without just cause when he was relieved of his athletic duties and privileges by respondent\u2019s Athletics Director, thus alleging a discharge or demotion.\n2. Public Officers and Employees\u2014 university coach \u2014 demotion or discharge\nThe superior court erred by concluding petitioner had been demoted or discharged from his coaching duties in violation of N.C.G.S. \u00a7 126-34.1(a)(l), because: (1) at most, the evidence shows a reassignment as petitioner claims to have lost his more significant coaching responsibilities; (2) a demotion is defined as a lowering in rank, position, or pay, and in the instant case petitioner\u2019s paygrade remained the same; and (3) 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.\nAppeal 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.\nElliot Pishko Morgan, P.A., by Robert M. Elliot, for petitioner-appellee.\nAttorney General Roy Cooper, by Assistant Attorneys General Joyce S. Rutledge, for respondent-appellant." }, "file_name": "0520-01", "first_page_order": 552, "last_page_order": 556 }