{ "id": 8353130, "name": "RICHARD W. LEE, Petitioner v. N.C. DEPT. OF TRANSPORTATION, Respondent", "name_abbreviation": "Lee v. N.C. Dept. of Transportation", "decision_date": "2006-02-07", "docket_number": "No. COA05-57", "first_page": "698", "last_page": "705", "citations": [ { "type": "official", "cite": "175 N.C. App. 698" } ], "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": "598 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "621-22", "parenthetical": "petition alleging that employee was \"relieved of [his] athletic duties and privileges\" was sufficient to allege demotion and invoke jurisdiction of OAH and SPC; jurisdiction rests on allegations of petitioner, which must be construed liberally" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 520", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8998748 ], "year": 2004, "pin_cites": [ { "page": "522-23", "parenthetical": "petition alleging that employee was \"relieved of [his] athletic duties and privileges\" was sufficient to allege demotion and invoke jurisdiction of OAH and SPC; jurisdiction rests on allegations of petitioner, which must be construed liberally" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0520-01" ] }, { "cite": "375 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "714", "parenthetical": "\"The right to appeal to an administrative agency is granted by statute, and compliance with statutory provisions is necessary to sustain the appeal.\"" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527622 ], "year": 1989, "pin_cites": [ { "page": "739", "parenthetical": "\"The right to appeal to an administrative agency is granted by statute, and compliance with statutory provisions is necessary to sustain the appeal.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0737-01" ] }, { "cite": "454 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556193, 2559269, 2556240, 2556593, 2558195 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0614-05", "/nc/339/0614-02", "/nc/339/0614-01", "/nc/339/0614-03", "/nc/339/0614-04" ] }, { "cite": "451 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "355", "parenthetical": "petitioner must follow requirements of Chapter 126 for commencing a contested case in order for OAH to have jurisdiction" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525281 ], "year": 1994, "pin_cites": [ { "page": "324", "parenthetical": "petitioner must follow requirements of Chapter 126 for commencing a contested case in order for OAH to have jurisdiction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0318-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-36.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-36", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-34", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-34.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "pin_cites": [ { "page": "(a)(10)" }, { "page": "(a)(3)" }, { "page": "(a)(3)" }, { "page": "(a)(2)" }, { "page": "(a)(3)" }, { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "511 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "341" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238269 ], "year": 1999, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0387-01" ] }, { "cite": "585 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "475" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955953 ], "year": 2003, "pin_cites": [ { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0358-01" ] }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "18", "parenthetical": "internal quotations omitted" }, { "page": "17" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "14", "parenthetical": "internal quotations omitted" }, { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "454 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 1 }, { "cite": "339 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556193, 2559269, 2556240, 2556593, 2558195 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/339/0614-05", "/nc/339/0614-02", "/nc/339/0614-01", "/nc/339/0614-03", "/nc/339/0614-04" ] }, { "cite": "451 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "357" }, { "page": "357", "parenthetical": "citation omitted" }, { "page": "357", "parenthetical": "concluding petitioner failed to timely file a contested case petition with OAH regarding discrimination based upon a handicapping condition, despite amendment of her prior prehearing statement to include such an allegation" } ], "opinion_index": 1 }, { "cite": "117 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525281 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "327" }, { "page": "327" } ], "opinion_index": 1, "case_paths": [ "/nc-app/117/0318-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 642, "char_count": 18936, "ocr_confidence": 0.744, "pagerank": { "raw": 7.747644260677765e-08, "percentile": 0.4555640116470111 }, "sha256": "2653ae38e6e748cfcac7bf1debd869ac6d3dec0d6fcb244e7786f8da2b0ce3c4", "simhash": "1:0faf3905f51fb450", "word_count": 2952 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUDSON concurs.", "Judge LEWIS concurs in part, dissents in part by separate opinion." ], "parties": [ "RICHARD W. LEE, Petitioner v. N.C. DEPT. OF TRANSPORTATION, Respondent" ], "opinions": [ { "text": "ELMORE, Judge.\nRichard W. Lee (petitioner) was employed by the North Carolina Department of Transportation (respondent) as a member of the maintenance crew. On 10 September 1999 petitioner filed a petition for a contested case hearing in the Office of Administrative Hearings (OAH). Subsequent to obtaining counsel, petitioner filed a prehearing statement. The petition alleged a hostile work environment and demotion with insufficient cause. The prehearing statement stated that petitioner was setting forth claims of hostile work environment and discrimination, both because of his race as an African-American.\nRespondent filed a motion to dismiss the petition, and the administrative law judge (ALJ) denied this motion on 10 May 2000. The AU ' entered a recommended decision on 29 August 2001, concluding that respondent discriminated against petitioner because of his race, created a racially hostile environment, and retaliated against petitioner for his objections to respondent\u2019s attempts to terminate him. The State Personnel Commission (SPC) considered the recommended decision and found it had no jurisdiction to hear petitioner\u2019s allegations. The SPC noted that if its finding on jurisdiction were to be reversed, then it adopts the findings and conclusions of the ALJ. Petitioner filed a petition for judicial review in Wake County Superior Court. The trial court entered an order on 11 June 2004 concluding that the SPC erred when it found it lacked jurisdiction over the issues in petitioner\u2019s case. The court remanded the case to the SPC to implement the six remedies stated in the ALJ\u2019s recommended decision. From this order, respondent appeals.\nRespondent assigns error to the trial court\u2019s conclusions that: (1) the SPC had jurisdiction to hear petitioner\u2019s racial harassment and retaliation claims; and (2) the SPC had jurisdiction over a discrimination claim because petitioner alleged he was demoted and denied training. This Court reviews the trial court\u2019s order regarding an agency decision for errors of law, which involves \u201c(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 18 (2002) (internal quotations omitted). Thus, we first determine whether the trial court applied the correct standard of review. Petitioner excepted to the SPC\u2019s decision that it lacked jurisdiction on the grounds that it is based on errors of law. The trial court stated that, since an error of law was raised, de novo review of the jurisdictional issue was proper. Where the appealing party asserts that the agency\u2019s decision was based on an error of law, the trial court must apply a de novo review. See Welter v. Rowan Cty. Bd. of Comm\u2019rs, 160 N.C. App. 358, 361, 585 S.E.2d 472, 475 (2003). \u201cUnder a de novo review, the superior court \u2018consider[s] the matter anew[] and freely substitutes its own judgment for the agency\u2019s judgment.\u2019 \u201d Mann Media, 356 N.C. at 13, 565 S.E.2d at 17 (quoting Sutton v. N.C. Dep\u2019t of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999)). Here, the trial court applied the appropriate scope of review, a de novo review of the SPC\u2019s decision.\nWe next determine whether the trial court properly exercised its review. Since each type of claim that petitioner alleged against respondent has distinct jurisdictional requirements, we must review them individually. The first issue is whether the SPC lacked jurisdiction to hear petitioner\u2019s racial harassment claim asserted under N.C. Gen. Stat. \u00a7 126-34.1(a)(10). The SPC found that petitioner failed to comply with N.C. Gen. Stat. \u00a7 126-34, which required him to submit written notice to respondent of his harassment claim prior to filing a petition for a contested case. N.C. Gen. Stat. \u00a7 126-34 provides:\nUnless otherwise provided in this Chapter, any career State employee having a grievance arising out of or due to the employee\u2019s employment and who does not allege unlawful harassment or discrimination because of the employee\u2019s age, sex, race, color, national origin, religion, creed, handicapping condition as defined by G.S. 168A-3, or political affiliation shall first discuss the problem or grievance with the employee\u2019s supervisor and follow the grievance procedure established by the employee\u2019s department or agency. Any State employee having a grievance arising out of or due to the employee\u2019s employment who alleges unlawful harassment because of the employee\u2019s age, sex, race, color, national origin, religion, creed, or handicapping condition as defined by G.S. 168A-3 shall submit a written complaint to the employee\u2019s department or agency. The department or agency shall have 60 days within which to take appropriate remedial action. If the employee is not satisfied with the department or agency\u2019s response to the complaint, the employee shall have the right to. appeal directly to the State Personnel Commission.\nN.C. Gen. Stat. \u00a7 126-34 (2005) (emphasis added). A State employee having a grievance is provided with the statutory right to appeal certain claims directly to the SPC, i.e., without first filing an internal complaint or exhausting his employer\u2019s internal grievance procedures. See N.C. Gen. Stat. \u00a7 126-36 (2005). In accordance with this section, an employee may appeal a claim of discrimination directly to the SPC, but an employee alleging harassment must comply with N.C. Gen. Stat. \u00a7 126-34 as a prerequisite to appealing to the SPC. See id.\nHere, petitioner did not have a statutory right of direct appeal to the SPC. The failure of petitioner to comply with N.C. Gen. Stat. \u00a7 126-34 by submitting a written complaint to respondent and allowing 60 days for respondent to reply was jurisdictional. See N.C. Gen. Stat. \u00a7 126-37(a) (2005) (\u201cAppeals involving a disciplinary action, alleged discrimination or harassment, and any other contested case arising under this Chapter shall be conducted in the Office of Administrative Hearings as provided in Article 3 of Chapter 150B; provided that no grievance may be appealed unless the employee has complied with G.S. 126-34\") (emphasis added). Accordingly, the SPC lacked jurisdiction to hear petitioner\u2019s racial harassment claim. The trial court erred in determining that the SPC had jurisdiction to hear the claim.\nNext, we address respondent\u2019s argument that the trial court incorrectly found N.C. Gen. Stat. \u00a7 126-34.1(a)(3) provided another source of jurisdiction in the case. Specifically, the trial court found that N.C. Gen. Stat. \u00a7 126-34.1(a)(3) provides jurisdiction for a State employee to appeal directly to the OAH when he believes he has been retaliated against for protesting alleged violations of his right to equal opportunity for employment and compensation. The trial court also found that respondent was on notice that the petition and prehearing statement alleged a retaliation claim and that respondent did not object to this basis for jurisdiction. We need not address the latter finding, that petitioner\u2019s allegations were sufficient to put respondent on notice of the nature of the claim, because we determine that petitioner did not have a right of direct appeal regarding this claim. Section 126-36 provides a State employee with the right to appeal directly to the OAH a grievance alleging discrimination as set forth in N.C. Gen. Stat. \u00a7 126-34.1(a)(2); however, an appeal of a grievance alleging harassment or retaliation for opposition to harassment is subject to the requirements of N.C. Gen. Stat. \u00a7 126-34. Section 126-36 is silent on a claim of retaliation for protesting alleged discrimination in violation of the employee\u2019s right to equal opportunity for employment and compensation.\nWe find no other section of Chapter 126 providing a direct right of appeal to an employee asserting retaliation based upon the employee\u2019s protest of an alleged violation of the right to equal opportunity for employment and compensation. Cf. N.C. Gen. Stat. \u00a7 126-36.1 (2005) (\u201cAny applicant for State employment who has reason to believe that employment was denied in violation of G.S. 126-16 [right to equal opportunity for employment and compensation] shall have the right to appeal directly to the State Personnel Commission.\u201d) (emphasis added). In order to trigger the jurisdiction of the SPC, petitioner was required to comply with Section 126-34 prior to filing a petition for a contested case. See Nailing v. UNC-CH, 117 N.C. App. 318, 324, 451 S.E.2d 351, 355 (1994) (petitioner must follow requirements of Chapter 126 for commencing a contested case in order for OAH to have jurisdiction), disc. review denied, 339 N.C. 614, 454 S.E.2d 255 (1995); Lewis v. N.C. Dep\u2019t. of Human Resources, 92 N.C. App. 737, 739, 375 S.E.2d 712, 714 (1989) (\u201cThe right to appeal to an administrative agency is granted by statute, and compliance with statutory provisions is necessary to sustain the appeal.\u201d). Petitioner\u2019s failure to follow respondent\u2019s internal grievance procedure prior to appealing his retaliation claim deprived the SPC of jurisdiction. The trial court erred in concluding that the SPC had jurisdiction over a retaliation claim pursuant to N.C. Gen. Stat. \u00a7 126-34.1(a)(3).\nThe final issue is whether petitioner alleged a discrimination claim under N.C. Gen. Stat. \u00a7 126-34.1(a)(2). The parties agree that, if alleged properly, this is a separate claim conferring subject matter jurisdiction to the SPC. Respondent contends that petitioner failed to allege discrimination in his petition because he did not allege a specific adverse employment action. Petitioner\u2019s petition did not allege racial discrimination. However, the petition stated that the grievance was based upon demotion. The prehearing statement alleged demotion due to race and stated that petitioner was transferred from a truck driving job to a flagging job requiring him to stand for long periods of time. The prehearing statement also stated that petitioner was sent to the wrong location when he applied to take a training course. The trial court concluded that petitioner sufficiently alleged a discrimination claim. Construing the pleadings liberally, including both the petition and the prehearing statement, we agree. See N.C. Gen. Stat. \u00a7 1A-1, Rule 8(f) (pleadings must be construed so \u201cas to do substantial justice\u201d); Winbush v. Winston-Salem State Univ., 165 N.C. App. 520, 522-23, 598 S.E.2d 619, 621-22 (2004) (petition alleging that employee was \u201crelieved of [his] athletic duties and privileges\u201d was sufficient to allege demotion and invoke jurisdiction of OAH and SPC; jurisdiction rests on allegations of petitioner, which must be construed liberally). Additionally, we note that petitioner has a direct right of appeal to the SPC where his grievance asserts discrimination. See N.C. Gen. Stat. \u00a7 126-36 (2005). Thus, the trial court correctly concluded that the SPC has jurisdiction over petitioner\u2019s discrimination claim.\nFor the foregoing reasons, we affirm the trial court\u2019s conclusion that the SPC has jurisdiction to hear petitioner\u2019s discrimination claim. We reverse the court\u2019s conclusions that the SPC has jurisdiction to hear petitioner\u2019s racial harassment or retaliation claims.\nAffirmed in part; reversed in part.\nJudge HUDSON concurs.\nJudge LEWIS concurs in part, dissents in part by separate opinion.\n. Petitioner altered the form from \u201cdemotion without just cause\u201d to read \u201cdemotion without [sic] Insufficient Cause.\u201d", "type": "majority", "author": "ELMORE, Judge." }, { "text": "LEWIS, Judge,\nconcurring in part and dissenting in part.\nI agree with the majority\u2019s conclusion that the SPC lacked jurisdiction to hear petitioner\u2019s racial harassment and retaliation claims. However,- because I disagree with the majority\u2019s conclusion that the SPC had jurisdiction to hear petitioner\u2019s racial discrimination claim, I respectfully concur in part and dissent in part.\n\u201cConstruing the pleadings liberally, including both the petition and prehearing statement,\u201d the majority concludes petitioner sufficiently alleged racial discrimination on the part of respondent. However, I note that \u201c[f]iling a petition in the OAH to commence a contested case hearing is a mandatory step for the OAH to exercise subject matter jurisdiction over [a] petitioner\u2019s appeal under Chapter 126.\u201d Nailing v. UNC-CH, 117 N.C. App. 318, 327, 451 S.E.2d 351, 357 (1994), disc. review denied, 339 N.C. 614, 454 S.E.2d 255 (1995); see N.C. Gen. Stat. \u00a7\u00a7 126-37(a), 150B-123. \u201cWhether a prehearing statement should be filed is within the discretion of the administrative law judge.\u201d Nailing, 117 N.C. App. at 327, 451 S.E.2d at 357 (citation omitted). Thus, \u201c [i]f the administrative law judge requires a party to file a prehearing statement, the prehearing statement is filed after the contested case has already been commenced by filing the petition pursuant to N.C. Gen. Stat. \u00a7 150B-23.\u201d Id. at 328, 451 S.E.2d at 357 (concluding petitioner failed to timely file a contested case petition with OAH regarding discrimination based upon a handicapping condition, despite amendment of her prior prehearing statement to include such an allegation).\nHere, petitioner\u2019s case was commenced by the fifing of a \u201cPetition For A Contested Case Hearing\u201d form (\u201cthe Form\u201d) provided by the Office of Administrative Hearings. Prior to asking the petitioner to \u201cstate facts showing how [he or she] believe[s] [he or she] ha[s] been harmed by the State local agency or board,\u201d the Form provides several choices from which the petitioner may allege his or her \u201cappeal is based on.\u201d The choices are placed in a conspicuous area of the Form, and the petitioner is expressly instructed to \u201ccheck all that apply.\u201d As the majority notes, in this case petitioner altered the \u201cdemotion without just cause\u201d choice on his Form to read \u201cdemotion without Insufficient Cause,\u201d and he further added that his appeal was based on \u201cHostile Work environment.\u201d However, petitioner failed to check any of the boxes beneath the set of choices regarding \u201cdiscrimination and or retaliation for opposition to alleged discrimination,\u201d and he failed to indicate which type of discrimination he suffered, despite the Form\u2019s explicit instruction that \u201c[i]f your appeal is based upon alleged discrimination and or retaliation for opposition to alleged discrimination, you must specify the type of discrimination.\u201d While petitioner\u2019s prehearing statement suggests he was harassed and perhaps demoted based upon his race, the Form contains no allegation regarding discrimination in general or racial discrimination in partic\u00falar.\nI note that petitioner acted pro se when completing the Form. However, I believe the Form was designed with pro se petitioners in mind, and I reemphasize that its instructions are plain and its requirements are neither burdensome nor complicated. Finally, I note petitioner filled in certain portions of the form related to general workplace grievances, but left blank those portions which specifically address discrimination. Notwithstanding our general liberality in reviewing pro se pleadings, I conclude petitioner failed to properly allege racial discrimination in this case. Accordingly, I would hold the trial court erred by concluding the SPC had subject matter jurisdiction over petitioner\u2019s racial discrimination claims.", "type": "concurring-in-part-and-dissenting-in-part", "author": "LEWIS, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for respondent-appellant.", "McSurely & Osment, by Alan McSurely, for petitioner-appellee." ], "corrections": "", "head_matter": "RICHARD W. LEE, Petitioner v. N.C. DEPT. OF TRANSPORTATION, Respondent\nNo. COA05-57\n(Filed 7 February 2006)\n1. Appeal and Error\u2014 scope of review \u2014 de novo \u2014 error of law\nThe trial court did not err by applying a de novo scope of review to the State Personnel Commission\u2019s (SPC) decision in an action alleging hostile work environment and discrimination based on petitioner state employee\u2019s race as an African-American, because: (1) petitioner excepted to the SPC\u2019s decision that it lacked jurisdiction on the ground that it is based on errors of law; and (2) when the appealing party asserts that the agency\u2019s decision was based on an error of law, the trial court must apply a de novo review.\n2. Public Officers and Employees\u2014 state employee \u2014 jurisdiction \u2014 racial harassment \u2014 written complaint required\nThe trial court erred by concluding that the State Personnel Commission (SPC) had jurisdiction to hear petitioner state employee\u2019s racial harassment claim under N.C.G.S. \u00a7 126-34.1(a)(1), because: (1) petitioner did not have a statutory right of direct appeal to SPC since an employee may appeal a claim of discrimination directly to SPC, but an employee alleging harassment must comply with N.C.G.S. \u00a7 126-34 as a prerequisite to appealing to SPC; and (2) the failure of petitioner to comply with N.C.G.S. \u00a7 126-34 by submitting a written complaint to respondent and allowing 60 days for respondent to reply was jurisdictional.\n3. Public Officers and Employees\u2014 state employee \u2014 jurisdiction-retaliation for protecting right to equal opportunity for employment and compensation\nThe trial court erred by finding that N.C.G.S. \u00a7 126-34.1(a)(3) provided another source of jurisdiction in this case for a state employee to appeal directly to the Office of Administrative Hearings when he believed that he has been retaliated against for protecting alleged violations of his right to equal opportunity for employment and compensation, because: (1) in order to trigger the jurisdiction of the State Personnel Commission, petitioner was required to comply with N.C.G.S. \u00a7 126-34 prior to filing a petition for a contested case; and (2) petitioner\u2019s failure to follow respondent\u2019s internal grievance procedure prior to appealing his retaliation claim deprived SPC of jurisdiction.\n4. Public Officers and Employees\u2014 state employee \u2014 jurisdiction \u2014 discrimination\nThe trial court did not err by concluding that the State Personnel Commission (SPC) had jurisdiction over petitioner state employee\u2019s discrimination claim under N.C.G.S. \u00a7 126-34.1(a)(2), because: (1) although the petition did not allege racial discrimination, the petition stated that the grievance was based upon demotion, and the prehearing statement alleged demotion due to race whereby petitioner was transferred from a truck driving job to a flagging job requiring him to stand for long periods of time; (2) the prehearing statement also stated that petitioner was sent to the wrong location when he applied to take a training course; (3) the pleadings including both the petition and the prehearing statement are construed liberally, N.C.G.S. \u00a7 1A-1, Rule 8(f); and (4) petitioner had a direct right to appeal to SPC under N.C.G.S. \u00a7 126-36 where his grievance asserts discrimination.\nJudge Lewis concurring in part and dissenting in part.\nAppeal by respondent from order entered 11 June 2004 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 15 September 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for respondent-appellant.\nMcSurely & Osment, by Alan McSurely, for petitioner-appellee." }, "file_name": "0698-01", "first_page_order": 732, "last_page_order": 739 }