{ "id": 8239299, "name": "THOMAS BOBBITT, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent", "name_abbreviation": "Bobbitt v. North Carolina State University", "decision_date": "2006-10-17", "docket_number": "No. COA05-1548", "first_page": "743", "last_page": "753", "citations": [ { "type": "official", "cite": "179 N.C. App. 743" } ], "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": "625 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635044 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "570" }, { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0567-01" ] }, { "cite": "633 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636457 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/633/0675-01" ] }, { "cite": "623 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634719 ], "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0629-01" ] }, { "cite": "616 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633600 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "624" }, { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0622-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "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": "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": "356" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525281 ], "year": 1994, "pin_cites": [ { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0318-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 126-37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "301 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707236 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0131-01" ] }, { "cite": "447 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "772" } ], "opinion_index": 0 }, { "cite": "337 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551286 ], "year": 1994, "pin_cites": [ { "page": "574-75" } ], "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": "38-39", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "326 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305257 ], "year": 1990, "pin_cites": [ { "page": "343", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0338-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2005, "pin_cites": [ { "page": "(a)" }, { "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-34", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "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 the employee was \"relieved of [his] athletic duties and privileges\" was sufficient to allege demotion and invoke jurisdiction of the OAH and the Commission" } ], "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 the employee was \"relieved of [his] athletic duties and privileges\" was sufficient to allege demotion and invoke jurisdiction of the OAH and the Commission" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0520-01" ] }, { "cite": "175 N.C. App. 698", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353130 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "701-02" }, { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0698-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-36", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "595 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "797" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8897753 ], "year": 2004, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0394-01" ] }, { "cite": "360 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789350, 3794987, 3791275, 3789520, 3791447, 3787453 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0531-05", "/nc/360/0531-01", "/nc/360/0531-02", "/nc/360/0531-04", "/nc/360/0531-03", "/nc/360/0531-06" ] }, { "cite": "175 N.C. App. 265", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351815 ], "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0265-01" ] }, { "cite": "172 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320937 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "569" }, { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0567-01" ] }, { "cite": "474 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "794" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 681", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914978 ], "year": 1996, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0681-01" ] }, { "cite": "380 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "552" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527544 ], "year": 1989, "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0541-01" ] } ], "analysis": { "cardinality": 839, "char_count": 22485, "ocr_confidence": 0.759, "pagerank": { "raw": 2.221758939791277e-07, "percentile": 0.7776957266620563 }, "sha256": "0ecbb57aa140e1a0f19e2799805336082ad4d270b434c1e8623a645e2fc3b581", "simhash": "1:0768699bddb3be10", "word_count": 3471 }, "last_updated": "2023-07-14T22:27:33.869735+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUDSON concurs.", "Judge WYNN concurs in the result only by separate opinion." ], "parties": [ "THOMAS BOBBITT, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent" ], "opinions": [ { "text": "TYSON, Judge.\nThomas Bobbitt (\u201cpetitioner\u201d) appeals from order entered affirming the decision of the State Personnel Commission (the \u201cCommission\u201d) to dismiss for lack of jurisdiction his petition for termination from employment without just cause due to discrimination. We reverse and remand.\nI. Background\nPetitioner was employed by North Carolina State University (\u201crespondent\u201d) for more than fifteen years. Petitioner\u2019s employment was terminated on 21 November 2001. Prior to termination, petitioner was employed as a floor maintenance assistant at Reynolds Coliseum, an indoor athletic facility located on respondent\u2019s campus.\nOn 5 November 2001, petitioner reported to work at 4:54 p.m. and performed routine services in preparation for a basketball game scheduled that evening. During the game, petitioner was stationed at the south end goal and was instructed to sweep the floor and keep it free from debris. Petitioner took a restroom break at approximately 8:30 p.m. during the game\u2019s half-time intermission.\nPetitioner testified the restroom was crowded. Petitioner relieved himself into the urinal, washed his hands, and returned to his duty station. Petitioner did not take another restroom break until approximately 1:30 a.m. Petitioner testified he used the toilet and he was alone in the restroom at the time.\nOn 5 November 2001, employees of LPSC Cleaning Services arrived at Reynolds Coliseum to perform its contract cleaning services after the basketball game ended. One member of the cleaning crew, Jerry Williams, reported to Larry Bell of LPSC Cleaning Services that he had observed petitioner urinating on the floor in the men\u2019s restroom. On 6 November 2001, Larry Bell reported this allegation to William Boweles, Coliseum Supervisor and Maintenance Coordinator. William Boweles reported the matter to his supervisor, Barry Joyce, petitioner\u2019s supervisor and Director of Indoor Athletic. Facilities. An investigation into Jerry Williams\u2019s allegations commenced. Petitioner repeatedly denied he urinated on the bathroom floor.\nBy letter dated 21 November 2001, Barry Joyce dismissed petitioner from employment effective 23 November 2001 for \u201cimproper personal conduct.\u201d The letter stated:\nIn accordance with the [University\u2019s Grievance Procedure, you have 15 work days from receipt of this letter to appeal your dismissal to the Division of Human Resources. If alleging discrimination, you may choose not to utilize the university\u2019s grievance procedure and appeal directly to the State Personnel Commission within 30 calendar days from receipt of this letter.\nSix days later on 27 November 2001, petitioner filed a Petition for a Contested Case Hearing in the Office of Administrative Hearings (\u201cOAH\u201d). Petitioner\u2019s petition asserted \u201cdischarge without just cause\u201d and that his discharge was based on age and race discrimination. On 16 April 2002, the administrative law judge (\u201cALJ\u201d) granted respondent\u2019s motion for summary judgment on certain claims, but denied respondent\u2019s motion regarding petitioner\u2019s claims for an allegedly excessive workload based on alleged racial discrimination and/or related retaliation.\nPetitioner\u2019s petition was heard in the OAH on 28 August 2002. Petitioner\u2019s counsel gave an opening statement in which he summarized the two issues in this case as termination without just cause and workplace harassment. Respondent\u2019s counsel stated during opening statements that those are \u201cthe two basic issues in this case.\u201d Later during the hearing, petitioner\u2019s counsel announced petitioner would be proceeding on the issue of termination without just cause. Respondent did not move to dismiss petitioner\u2019s remaining discrimination claims for abandonment or lack of jurisdiction at any time during the hearing before the ALJ.\nThe AU in his recommended decision found and concluded, \u201c[t]he evidence in the case and at the hearing leads to no other conclusion but that it is more likely than not that the [petitioner] did not commit the offense.\u201d The AU issued a recommended decision to the Commission to overturn petitioner\u2019s dismissal from and re-instate his state employment. The AU ruled Barry Joyce, petitioner\u2019s supervisor, incorrectly shifted the burden of proof to petitioner when he stated that he had no reason not to believe Jerry Williams\u2019s allegations. In his recommended decision, the AU also concluded, \u201c[t]he [OAH] has jurisdiction over the parties and over [petitioner\u2019s] \u2018just cause\u2019 claim.\u201d\nThe Commission took no additional evidence, declined to adopt the AU\u2019s findings of fact and conclusions of law, and addressed only whether it had jurisdiction over petitioner\u2019s just cause claim. The Commission ordered petitioner\u2019s petition be dismissed for lack of jurisdiction. The Commission explained its decision as follows:\n[N] either OAH nor the State Personnel Commission has any claim before it other than [petitioner\u2019s] just cause claim.\nNothing in the Decision of the Temporary Administrative Law Judge shows that he considered the issue of whether the Office of Administrative Hearings has subject matter jurisdiction over a just cause claim which has not been exhausted internally through agency procedures. Because subject matter jurisdiction is non-waivable, and cannot be conferred by stipulation or consent of the parties, the Commission has had to consider this threshold issue.\nThe Commission stated that because petitioner had not exhausted available administrative remedies through respondent\u2019s internal grievance procedure, his petition did not invoke the jurisdiction of either the OAH or the Commission.\nPetitioner filed a Petition for Judicial Review in the Wake County Superior Court, which affirmed the decision and order of the Commission. Petitioner appeals.\nII. Respondent\u2019s Motion to Dismiss\nRespondent filed a motion to dismiss petitioner\u2019s appeal with this Court. Respondent argues petitioner\u2019s appeal should be dismissed due to petitioner\u2019s failure to comply with Rule 10(c) of the North Carolina Rules of Appellate Procedure. Rule 10(c) states in part, \u201c[a]n assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.\u201d N.C.R. App. P. 10(c)(1) (2006).\nPetitioner\u2019s brief contains appropriate record references for each of his arguments. Those record references refer to the order appealed from.\nIn Symons Corp. v. Insurance Co. of North America, we held, \u201c[although defendant in this case did not technically follow the rules by failing to list specific page numbers where exceptions could be found in the record and did not set out these exceptions in the brief, we do not find these omissions so egregious as to invoke dismissal.\u201d 94 N.C. App. 541, 543, 380 S.E.2d 550, 552 (1989). In Adams v. Kelly Springfield Tire Co., this Court also declined to dismiss an appeal for an identical rule violation. 123 N.C. App. 681, 682, 474 S.E.2d 793, 794 (1996). Respondent\u2019s motion to dismiss petitioner\u2019s appeal is denied.\nHI. Issues\nPetitioner argues he: (1) properly filed his petition asserting respondent terminated his employment without just cause directly to the OAH and the Commission pursuant to N.C. Gen. Stat.. \u00a7 125-36(a) and (2) is estopped from raising lack of subject matter jurisdiction.\nA. Standard of Review\n\u201cSince we are reviewing a \u2018review proceeding\u2019 in the superior court and petitioners are appealing pursuant to N.C. Gen. Stat. \u00a7 7A-27, we will apply N.C. Gen. Stat. \u00a7 150B-52.\u201d Lincoln v. N.C. Dep\u2019t of Health & Human Servs., 172 N.C. App. 567, 569, 616 S.E.2d 622, 624 (2005). N.C. Gen. Stat. \u00a7 150B-52 (2005) states:\nA party to a review proceeding in a superior court may appeal to the appellate division from the final judgment of the superior court as provided in G.S. 7A-27. The scope of review to be applied by the appellate court under this section is the same as it is for other civil cases.\nThis Court has clearly stated the standard of review applicable to appeals of administrative claims from the superior court.\nThe proper standard of review by the trial court depends upon the particular issues presented by the appeal. If appellant argues the agency\u2019s decision was based on an error of law, then de novo review is required. If appellant questions whether the agency\u2019s decision was supported by the evidence or whether it was arbitrary or capricious, then the reviewing court must apply the whole record test.\nThe reviewing court must determine whether the evidence is substantial to justify the agency\u2019s decision. A reviewing court may not substitute its judgment for the agency\u2019s, even if a different conclusion may result under a whole record review.\nAs to appellate review of a superior court order regarding an agency decision, the appellate court examines the trial court\u2019s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly. As distinguished from the any competent evidence test and a de novo review, the whole record test gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence.\nCarillon Assisted Living, LLC v. N.C. Dep\u2019t of Health & Human Servs., 175 N.C. App. 265, 270, 623 S.E.2d 629, 633 (internal citations and quotations omitted), disc. rev. denied, 360 N.C. 531, 633 S.E.2d 675 (2006).\nHere, the issues under review concern jurisdiction and the trial court\u2019s conclusion to affirm the Commission\u2019s ruling that it lacked jurisdiction over petitioner\u2019s claim. \u201cA trial court\u2019s conclusions of law . . . are reviewable de novo.\u201d Lincoln, 172 N.C. App. at 570, 616 S.E.2d at 624. Whether jurisdiction was properly invoked is a question of law. In re J.B., 164 N.C. App. 394, 398, 595 S.E.2d 794, 797 (2004).\nB. Subject Matter Jurisdiction\nPetitioner argues he correctly filed his petition directly with the OAH because he alleged termination from employment without just cause due to discrimination. Petitioner argues his allegations allow him to appeal directly to the Commission, pursuant to N.C. Gen. Stat. \u00a7 126-36(a) without exhausting respondent\u2019s internal grievance procedure. We agree.\nThe allegations are determined from the face of the petition for a contested case hearing. See, e.g., Lee v. N.C. Dep\u2019t of Transp., 175 N.C. App. 698, 701-02, 625 S.E.2d 567, 570, (2006). The allegations of jurisdiction must be liberally construed. Winbush v. Winston-Salem State Univ., 165 N.C. App. 520, 522-23, 598 S.E.2d 619, 621-22 (2004) (petition alleging that the employee was \u201crelieved of [his] athletic duties and privileges\u201d was sufficient to allege demotion and invoke jurisdiction of the OAH and the Commission).\nC. Career State Employee\nA career state employee is defined as \u201ca [s]tate employee who is in a permanent position,\u201d and who \u201chas been continuously employed by the State of North Carolina in a position subject to the State Personnel Act for the immediate 24 preceding months.\u201d N.C. Gen. Stat. \u00a7 126-1.1 (2005). Neither party contests the ALJ\u2019s conclusion that petitioner was a career state employee. Our de novo review \u201cis limited to questions so presented in the several briefs.\u201d N.C.R. App. P. 28(a) (2006).\nA career state employee who has a grievance arising out of or due to their employment and \u201cwho does not allege unlawful harassment or discrimination\u201d must \u201cfirst discuss the problem or grievance with the employee\u2019s supervisor and follow the grievance procedure established by the employee\u2019s department or agency.\u201d N.C. Gen. Stat. \u00a7 126-34 (2005).\nThe employee may seek review directly to the Commission \u201cif he is not satisfied with the final decision of the head of the department, or if he is unable, within a reasonable period of time, to obtain a final decision by the head of the department.\u201d N.C. Gen. Stat. \u00a7 126-35(a) (2005).\nA state employee \u201cwho has reason to believe\u201d that his dismissal based upon age or race discrimination may appeal directly to the Commission. N.C. Gen. Stat. \u00a7 126-36(a) (2005).\nOur Supreme Court has stated that the petitioners who allege discrimination need not exhaust internal grievances.\n[E]mployees whose grievances arise out of their employment, other than those who allege discrimination, must have complied with N.C.G.S. \u00a7 126-34, which requires all permanent state employees having such a grievance arising out of or due to their employment first to discuss their problem or grievance with their supervisor, then to follow the grievance procedure established by their department or agency.\nBatten v. N.C. Dept. of Correction, 326 N.C. 338, 343, 389 S.E.2d 35, 38-39 (1990) (emphasis supplied), overruled in part on other grounds by, Empire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569, 574-75, 447 S.E.2d 768, 772 (1994); see North Carolina Department of Correction v. Earl Gibson, 308 N.C. 131, 301 S.E.2d 78 (1983). \u201cA State employee is provided with the statutory right to appeal certain claims directly to the SPC ... without first... exhausting his employer\u2019s internal grievance procedures ... an employee may appeal a claim of discrimination directly to the SPC.\u201d Lee, 175 N.C. App. at 701, 625 S.E.2d at 570.\nRespondent argues that, \u201c[t]his Court\u2019s holding in Nailing is directly on point . . . the case law [is] indisputable.\u201d Respondent quotes the following language from Nailing v. TJNC-CH.:\nIn the present case, it is undisputed that petitioner did not follow Defendant\u2019s grievance procedure regarding the appeal from her dismissal. Pursuant to N.C. Gen. Stat. \u00a7\u00a7 126-37(a), -34, the OAH would not, therefore, have subject matter jurisdiction over petitioner\u2019s appeal from her dismissal under N.C. Gen. Stat. \u00a7 126-35 for lack of \u201cjust cause.\u201d\n117 N.C. App. 318, 326, 451 S.E.2d 351, 356 (1994), disc. rev. denied, 339 N.C. 614, 454 S.E.2d 255 (1995). Respondent\u2019s cited quote from Nailing excludes relevant and controlling language. The full quote reads:\nIn the present case, it is undisputed that petitioner did not follow [Respondent\u2019s] grievance procedure regarding the appeal from her dismissal. Pursuant to N.C. Gen. Stat. \u00a7\u00a7 126-37(a), -34, the OAH would not, therefore, have subject matter jurisdiction over petitioner\u2019s appeal from her dismissal under N.C. Gen. Stat. \u00a7 126-35 for lack of \u201cjust cause\u201d that does not allege discrimination.\nId. (emphasis supplied). In Nailing, the claim was \u201ca series of disciplinary warnings . . . were unjust and retaliatory.\u201d Id. The petitioner did not allege her just cause discharge claim resulted from discrimination.\nHere, petitioner\u2019s petition for a contested case hearing asserts his termination was based upon \u201cdischarge without just cause.\u201d The petition states, \u201c[t]he following occurred due to discrimination and/or retaliation for opposition to alleged discrimination.\u201d Petitioner checked the lines indicating he was denied \u201cemployment\u201d and \u201cpromotion.\u201d Petitioner checked the line indicating \u201ctermination\u201d was forced upon him. Petitioner also checked the line next to the word \u201cother,\u201d and wrote \u201cdue to a lie by an outside contractor.\u201d Petitioner also alleged race and age discrimination by checking the appropriate lines labeled \u201crace\u201d and \u201cage.\u201d\nPetitioner argues he has \u201creason to believe\u201d his termination was based on race and age discrimination and properly filed his claim directly before the Commission. Reviewed in the light most favorable to petitioner, and taking petitioner\u2019s allegations in his petition as true, petitioner\u2019s allegations sufficiently assert discrimination to allow him to petition directly to the Commission without first exhausting internal grievances.\nPetitioner\u2019s petition properly invoked jurisdiction before the OAH and the Commission on alleged race and age discrimination despite the fact that his counsel proceeded and prevailed before the AU on a just cause argument at the hearing. See Campbell v. N.C. Dep\u2019t of Transp., 155 N.C. App. 652, 660, 575 S.E.2d 54, 60 (\u201cJurisdiction rests on the allegations of the petitioner.\u201d), disc. rev. denied, 357 N.C. 62, 579 S.E.2d 386 (2003).\nN.C. Gen. Stat. \u00a7 126-36 allows direct appeal to the Commission so long as the petitioner has a \u201creason to believe\u201d his termination was based on race or age discrimination. A review of N.C. Gen. Stat. \u00a7 126 and the petitioner\u2019s petition reveals no other requirements. Petitioner\u2019s claims in contested case no. 2196 were largely dismissed after respondent moved for and was granted summary judgment on 16 April 2002. However, petitioner\u2019s allegations under contested case no. 2197, the petition on which termination without just cause due to discrimination was asserted, were not dismissed.\nPetitioner\u2019s counsel gave an opening statement to the ALJ summarizing the two issues in this case as termination without just cause and workplace harassment. Respondent\u2019s counsel before the ALJ acknowledged those to be the \u201ctwo basic issues in this case.\u201d In respondent\u2019s opening statement, defense counsel advised the AU, \u201cI do invite the Court to keep the issue narrow, and we also have a stipulation that because we\u2019ve converted this morning to a just cause, that my witnesses can be heard first.\u201d (Emphasis supplied). After respondent\u2019s evidence, petitioner\u2019s counsel announced, \u201c[w]e will proceed only on the issue of just cause.\u201d Respondent\u2019s failure to move to dismiss on jurisdictional grounds, once petitioner announced he was proceeding only on just cause, waived any required exhaustion of internal grievance procedures. The hearing proceeded before the AU, and to his recommended decision, without any objection.\nWe hold that the Commission had jurisdiction to review petitioner\u2019s just cause petition, and are unable to determine from the record the basis for petitioner\u2019s \u201creason to believe\u201d his termination was based upon race or age discrimination. We reverse and remand to the Superior Court for further remand to the Commission for the Commission to decide the merits of petitioner\u2019s claim of no just cause for his dismissal. If the Commission finds just cause to support petitioner\u2019s termination, then it must proceed with a hearing and determine whether petitioner has \u201creason to believe\u201d his termination was based upon discrimination.\nIV. Conclusion\nThe issue before us is extremely narrow. Petitioner\u2019s petition on its face asserts a contested case for termination without just cause based upon age and race discrimination. Respondent\u2019s earlier motion for summary judgment was denied on petitioner\u2019s discrimination claims. Respondent did not contest jurisdiction or move to dismiss, and stipulated to, petitioner\u2019s just cause claims during the hearing before the AU. Petitioner satisfied the requirements of N.C. Gen. Stat. \u00a7 126-36(a) by alleging discrimination in his petition and directly invoked the Commission\u2019s jurisdiction. Respondent waived any requirement that petitioner first exhaust respondent\u2019s internal grievance procedures.\nThe Superior Court\u2019s order affirming the Commission\u2019s holding that it did not have jurisdiction to hear petitioner\u2019s claim is reversed. \u25a0 This case is remanded to the Superior Court for further remand to the Commission for further proceedings consistent with this opinion. In light of our decision, it is unnecessary to consider petitioner\u2019s second issue regarding estoppel.\nReversed and Remanded.\nJudge HUDSON concurs.\nJudge WYNN concurs in the result only by separate opinion.", "type": "majority", "author": "TYSON, Judge." }, { "text": "WYNN, Judge,\nconcurring in the result.\nI concur only in that part of the majority\u2019s holding that \u201cDefendant\u2019s failure to move to dismiss on jurisdictional grounds, once plaintiff announced he was proceeding only on just cause, waived any required exhaustion of internal grievance procedures.\u201d I further agree that the Commission erred by determining it did not have jurisdiction to review Plaintiff\u2019s \u201cjust cause\u201d petition. Accordingly, I would remand for the Commission to decide only the merits of Plaintiff\u2019s just cause petition.", "type": "concurrence", "author": "WYNN, Judge," } ], "attorneys": [ "Barry Nakell, for petitioner-appellant.", "Attorney General Roy Cooper, by Assistant Attorney General Q. Shant\u00e9 Martin, for respondent-appellee." ], "corrections": "", "head_matter": "THOMAS BOBBITT, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent\nNo. COA05-1548\n(Filed 17 October 2006)\n1. Appeal and Error\u2014 appellate rules violations \u2014 omissions not so egregious to invoke dismissal\nRespondent university\u2019s motion to dismiss petitioner state employee\u2019s appeal from the denial of his claim for termination from employment without just cause due to discrimination, based on a failure to comply with N.C. R. App. P. 10(c), is denied because: (1) petitioner\u2019s brief contains appropriate record references for each of his arguments; and (2) although defendant did not technically follow the rules by failing to list specific page numbers where exceptions can be found in the record and did not set out these exceptions in the brief, these omissions are not so egregious as to invoke dismissal.\n2. Public Officers and Employees\u2014 career state employee\u2014 termination from employment without just cause due to discrimination \u2014 exhausting internal grievance procedure not required \u2014 waiver\nA de novo review revealed that the trial court\u2019s order affirming the State Personnel Commission\u2019s holding that it did not have jurisdiction to hear petitioner career state employee\u2019s claim for termination from employment by respondent university without just cause due to discrimination is reversed, and the case is remanded to the Commission to decide the merits of petitioner\u2019s claim, because: (1) petitioner\u2019s allegations allow him to appeal directly to the Commission under N.C.G.S. \u00a7 126-36(a) without exhausting respondent\u2019s internal grievance procedure since he sufficiently asserted his dismissal was based upon age or race discrimination; (2) the petition properly invoked jurisdiction before the Office of Administrative Hearings and the Commission on alleged race and age discrimination despite the fact that his counsel proceeded and prevailed before the ALJ on a just cause argument at the hearing; and (3) respondent\u2019s failure to move to dismiss on jurisdictional grounds, once petitioner announced he was proceeding only on just cause, waived any required exhaustion of internal grievance procedures.\nJudge Wynn concurring in the result.\nAppeal by petitioner from order entered 1 August 2005 by Judge J.B. Allen in Wake County Superior Court. Heard in the Court of Appeals 12 September 2006.\nBarry Nakell, for petitioner-appellant.\nAttorney General Roy Cooper, by Assistant Attorney General Q. Shant\u00e9 Martin, for respondent-appellee." }, "file_name": "0743-01", "first_page_order": 775, "last_page_order": 785 }