{ "id": 4156255, "name": "ANGELA D. STEWARD, Plaintiff v. MERLE C. GREEN, in her official capacity as Director of the Guilford County Department of Public Health, THE BOARD OF THE GUILFORD COUNTY DEPARTMENT OF PUBLIC HEALTH, GUILFORD COUNTY, THOMAS H. WRIGHT, in his official capacity as Director of the Office of State Personnel and the STATE PERSONNEL COMMISSION, Defendants", "name_abbreviation": "Steward v. Green", "decision_date": "2008-03-04", "docket_number": "No. COA07-762", "first_page": "131", "last_page": "137", "citations": [ { "type": "official", "cite": "189 N.C. App. 131" } ], "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": "648 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639126 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "834" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0830-01" ] }, { "cite": "354 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "376", "parenthetical": "citation omitted" }, { "page": "376" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169685 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "153", "parenthetical": "citation omitted" }, { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0150-01" ] }, { "cite": "361 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3737456 ], "year": 2007, "pin_cites": [ { "page": "535-36" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0531-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "346 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "416" } ], "opinion_index": 0 }, { "cite": "317 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779108 ], "year": 1986, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0689-01" ] }, { "cite": "379 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "concluding that the trial court was without subject matter jurisdiction where plaintiff had not exhausted administrative remedies available to him under the Administrative Procedure Act (APA)" } ], "opinion_index": 0 }, { "cite": "324 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483984 ], "year": 1989, "pin_cites": [ { "parenthetical": "concluding that the trial court was without subject matter jurisdiction where plaintiff had not exhausted administrative remedies available to him under the Administrative Procedure Act (APA)" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0402-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "163 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "357" } ], "opinion_index": 1 }, { "cite": "274 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560069 ], "year": 1968, "pin_cites": [ { "page": "333" } ], "opinion_index": 1, "case_paths": [ "/nc/274/0328-01" ] }, { "cite": "576 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "414", "parenthetical": "internal citations omitted" } ], "opinion_index": 1 }, { "cite": "156 N.C. App. 384", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190744 ], "year": 2003, "pin_cites": [ { "page": "389-90", "parenthetical": "internal citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/156/0384-01" ] } ], "analysis": { "cardinality": 606, "char_count": 16188, "ocr_confidence": 0.755, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.39340942271151713 }, "sha256": "3c5406dc77f23aed5d711855c053ea7aad4c72651e22e3380c3160410ed461b4", "simhash": "1:ee3d7cca7d1dfe17", "word_count": 2479 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TYSON concurs." ], "parties": [ "ANGELA D. STEWARD, Plaintiff v. MERLE C. GREEN, in her official capacity as Director of the Guilford County Department of Public Health, THE BOARD OF THE GUILFORD COUNTY DEPARTMENT OF PUBLIC HEALTH, GUILFORD COUNTY, THOMAS H. WRIGHT, in his official capacity as Director of the Office of State Personnel and the STATE PERSONNEL COMMISSION, Defendants" ], "opinions": [ { "text": "ARROWOOD, Judge.\nPlaintiff appeals from an order dismissing her complaint against Defendants pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(1), Rule 12(b)(2), and Rule 12(b)(6). For the reasons discussed herein, we affirm.\nAngela D. Steward (Plaintiff) was employed by the Guilford County Department of Public Health (Defendant) on 29 August 1989. From 28 August 2000 to 11 May 2005, Plaintiff held the position of Social Worker II and was assigned to work with the Partnership for Health Management program of the Department.\nOn 17 February 2005, Plaintiff received her annual employee performance appraisal in which she was given a final rating of \u201c2,\u201d which denotes job performance \u201cpartially below job expectations.\u201d This rating also constituted a \u201cwritten warning\u201d pursuant to Regulation 28 of the Guilford County Personnel Regulations. Plaintiff received a separate written warning from her supervisor stating that Plaintiff\u2019s \u201cperformance is inadequate and unacceptable.\u201d Plaintiff \u201cput four to ten packets of aspirin in each packet of materials to be given to . . . clients[,]\u201d \u201cdisregard[ing] . . . [an] instruction] . . . not to distribute medications].]\u201d Plaintiff had been reminded numerous times that \u201cgiving aspirin to children was potentially dangerous.\u201d\nOn 11 March 2005, Plaintiff received a notification of administrative leave with pay \u201cpending possible disciplinary and other action\u201d pursuant to Regulation 29 of the Guilford County Personnel Regulations. Plaintiff appealed to the Guilford County Human Resources Director, and on 24 March 2005 received a written warning determination.\nOn 30 March 2005, Plaintiff received a copy of a memorandum recommending the termination of Plaintiffs employment, and on 4 April 2005, Plaintiff attended a conference regarding her employment status and her job performance. On 11 April 2005, Plaintiff received a memorandum dismissing her from employment stating that Plaintiff\u2019s \u201caction could have [endangered children and] put the Public Health Department and Guilford County at considerable risk[.]\u201d\nPlaintiff filed a complaint in superior court on 30 August 2006. In Plaintiff\u2019s complaint, her first claim for relief prayed for declaratory judgment that the Guilford County Personnel Regulations were not \u201csubstantially equivalent\u201d to the standards established by N.C. Gen. Stat. \u00a7 126-1, et seq. Plaintiff specifically contended that the memorandum terminating her employment \u201cdid not give [Plaintiff] any notice of any right to appeal\u201d to the county superior court.\nOn 30 October 2006, Defendants filed a motion to dismiss Plaintiff\u2019s complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(1), Rule 12(b)(2) and Rule 12(b)(6), contending that the court did not have subject matter jurisdiction to determine whether the county\u2019s personnel regulations were substantially equivalent to the State Personnel Act.\nOn 7 February 2007, the trial court granted Defendant\u2019s motion to dismiss, concluding that the trial court lacked subject matter jurisdiction. From this order, Plaintiff appeals.\nPlaintiff contends that the trial has subject matter jurisdiction to determine whether the Guilford County Personnel Guidelines were the \u201csubstantial equivalent\u201d to N.C. Gen. Stat. \u00a7 126-11. We disagree.\nWhen a party has not exhausted administrative remedies, the case should be dismissed for lack of subject matter jurisdiction. See Vass v. Bd. of Trustees, 324 N.C. 402, 379 S.E.2d 26 (1989) (concluding that the trial court was without subject matter jurisdiction where plaintiff had not exhausted administrative remedies available to him under the Administrative Procedure Act (APA)). \u201c[Questions of subject matter jurisdiction may properly be raised at any [time].\u201d Forsyth County Bd. of Social Services v. Division of Social Services by Everhart, 317 N.C. 689, 692, 346 S.E.2d 414, 416 (1986).\nN.C. Gen. Stat. \u00a7 126-ll(a) (2005) provides:\nThe board of county commissioners of any county may establish and maintain a personnel system for all employees of the county subject to its jurisdiction, which system and any substantial changes to the system, shall be approved by the State Personnel Commission as substantially equivalent to the standards established under this Chapter for employees of local departments of social services, local health departments, and area mental health programs, local emergency management programs. If approved by the State Personnel Commission, the employees covered by the county system shall be exempt from all provisions of this Chapter except Article 6.\n(Emphasis added).\nN.C. Gen. Stat. \u00a7 126-ll(d) (2005) also explicitly states:\nIn order to define \u201csubstantially equivalent,\u201d the State Personnel Commission is authorized to promulgate rules and regulations to implement the federal merit system standards!)]\nIn the instant case, Guilford County has previously obtained a \u201csubstantially equivalent\u201d exemption from N.C. Gen. Stat \u00a7 126-1, el seq. On 14 March 2006, the Guilford County Attorney\u2019s Office received a letter from E.D. Maynard, the managing partner of the N.C. Office of State Personnel regarding \u201cSubstantially Equivalent Status.\u201d The letter stated, \u201c[i]n February 2000, the State Personnel Commission approved substantial equivalency for all of Guilford County\u2019s human resource program areas as they apply to departments of social services, public health and area mental health programs and their employees.\u201d The letter further stated, \u201c[t]here has been no change in this status since that time.\u201d Regulation 1 of the Guilford County Personnel Regulations also states that the \u201c[regulations have been approved by the State Personnel Commission as retaining substantial equivalency for Position Classification, Salary Administration, Recruitment and Selection, and Employment Relations (including Grievances and Appeals)!.]\u201d\nNotwithstanding the foregoing letter, the State Personnel Commission\u2019s rule N.C. Admin. Code tit. 25, r. 11.2404 (June 2007 Cum. Supp.) states the following:\n(b) In order to be declared substantially equivalent in the area of employee relations, a county shall adopt a grievance procedure that includes all of the following:\n(6) A provision that the final decision shall state in writing that if the employee/grievant disagrees with the decision of the local appointing authority, appeal from that decision may be made to the Superior. Court of the county.\nRegulation 28 of the Guilford County Personal Regulation does not include a provision that the final decision may be appealed to the Superior Court of the County. However, Regulation 28 of the County\u2019s Personnel Regulations only governs \u201cdisciplinary action\u201d and states that \u201c[i]f an employee has a complaint or grievance unrelated to a pending disciplinary action, the employee should refer to Regulation 31, \u2018Grievance/Complaint Resolution,\u2019 and follow the procedure set out in that Regulation.\u201d The record on appeal does not reflect the procedures regarding such grievances or complaints pursuant to Regulation 31; however, there is also no indication in the record that Plaintiff has filed a grievance or complaint pursuant to Regulation 31 regarding whether the County\u2019s regulations are substantially equivalent to the State Personnel Act.\nThe North Carolina Administrative Procedure Act also applies here. See N.C. Gen. Stat. \u00a7 150B-l(e) (2005) (stating that \u201c[t]he contested case provisions of this Chapter apply to all agencies and all proceedings not expressly exempted from the Chapter\u201d); Holly Ridge Assocs., LLC v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 361 N.C. 531, 535-36, 648 S.E.2d 830, 834 (2007). A \u201cperson aggrieved\u201d by an agency decision- \u2014 in this case, the Office of State Personnel\u2019s determination that the Guilford County Personnel Regulations were substantially equivalent to the State Personnel Act \u2014 may commence a contested case pursuant to N.C. Gen. Stat. \u00a7 150B-23(a) (2005), \u201cby filing a petition with the Office of Administrative Hearings[.]\u201d A \u201ccontested case\u201d means \u201can administrative proceeding... to resolve a dispute between an agency and another person that involves the person\u2019s rights, duties, or privilegesf.]\u201d N.C. Gen. Stat. \u00a7 150B-2 (2) (2005). \u201cA local government employee, applicant for employment, or former employee to whom Chapter 126 of the General Statutes applies may commence a contested case under this Article in the same manner as any other petitioner.\u201d Id.\nN.C. Gen. Stat. \u00a7 150B-43 (2005) governs judicial review of a final agency decision, stating that \u201c[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision under this Article[.]\u201d\nIn order to have standing to petition for judicial review under the statute: (1) the petitioner must be an aggrieved party; (2) there must be a final agency decision; (3) the decision must result from a contested case; (4) the petitioner must have exhausted all administrative remedies; and (5) there must be no other adequate procedure for judicial review.\nIn re Rulemaking Petition of Wheeler, 85 N.C. App. 150, 153, 354 S.E.2d 374, 376 (1987) (citation omitted).\nIn Plaintiffs complaint, she reasons that because Guilford County Regulation 28 is \u201csilent on the issue of further appeals\u201d and because Plaintiff appealed to the Guilford County Human Resources Director, Plaintiff \u201chas [therefore] exhausted the administrative remedies set forth in the Guilford County Personnel Regulations.\u201d We find this argument unconvincing. The question of whether Plaintiff has exhausted the remedies of Regulation 28 of the Guilford County Personnel Regulations is not dispositive to the question of whether Plaintiff has exhausted all administrative remedies. In fact, concurrent to Plaintiffs appeal to this Court, Plaintiff also \u201cseek[s] redress in the North Carolina Office of Administrative Hearings.\u201d The question of whether Guilford County\u2019s Personnel Regulations are \u201csubstantially equivalent\u201d to the State Personnel Act is either a question properly submitted as a complaint or grievance pursuant to Regulation 31 of the Guilford County Personnel Regulations, or a question properly submitted as a contested case to an administrative law judge and the Office of Administrative Hearings. Only after Plaintiff has exhausted all administrative remedies may the question be reviewed by the Guilford County Superior Court.\nWe conclude that the final agency decision regarding whether the Guilford County Personnel Guidelines are \u201csubstantially equivalent\u201d to the State Personnel Act may be reviewed by a trial court under Article 4, Chapter 150B of the Administrative Procedure Act only after the aggrieved person has exhausted all available administrative remedies made available to him by statute or agency rule. See N.C. Gen. Stat. \u00a7 150B-43; In re Wheeler, 85 N.C. App. at 153, 354 S.E.2d at 376.\nBecause Plaintiffs concedes that \u201cthe determination by the Court as to whether Regulation 28 of the Guilford County Personnel Regulations is . . . substantially equivalent to the State Personnel Act and the regulations thereunder will determine whether the Appellant has legal rights arising from her termination of employment [,]\u201d and because the trial court did not have subject matter jurisdiction to make the foregoing determination, we do not reach the remaining arguments in Plaintiffs brief.\nAffirmed.\nJudge TYSON concurs.", "type": "majority", "author": "ARROWOOD, Judge." }, { "text": "Judge JACKSON\nconcurs in result only with separate opinion.\nAlthough I concur with the result reached by the majority opinion, I write separately as I believe we should not address the merits of plaintiffs appeal.\nOur \u201creview is solely upon the record on appeal, the verbatim transcript of proceedings, . . . and any items filed with the record on appeal pursuant to Rule 9(c) and 9(d).\u201d N.C. R. App. P. 9(a) (2007). \u201cIt is the duty of the appellant to ensure that the record is complete. \u2018An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court.\u2019 \u201d Hicks v. Alford, 156 N.C. App. 384, 389-90, 576 S.E.2d 410, 414 (2003) (internal citations omitted) (quoting State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968)).\nHere, the record before this Court only includes Guilford County Personnel Regulations 1, 2, and 28. Regulation 28, governing \u201cDisciplinary Action,\u201d states in Subsection H that for complaints or grievances unrelated to pending disciplinary actions, employees should refer to and follow Regulation 31 governing \u201cGrievance/ Complaint Resolution.\u201d Plaintiff\u2019s complaint or grievance is unrelated to a pending disciplinary action as her dismissal necessarily was a fait accompli at the time she filed this action. Regulation 31 appears to be controlling in this matter; however, we have no way to ascertain the scope of Regulation 31 as it is not a part of the record on appeal. Because the record does not include this regulation, we cannot, and should not, assess the merits of plaintiff\u2019s arguments. Therefore, I must concur only in the result reached by the majority opinion. \u2022", "type": "concurrence", "author": "Judge JACKSON" } ], "attorneys": [ "Jerry R. Everhardt, for Plaintiff-Appellant.", "Guilford County Department of Social Services, by Deputy County Attorney James A. Dickens, for Respondents-Appellees." ], "corrections": "", "head_matter": "ANGELA D. STEWARD, Plaintiff v. MERLE C. GREEN, in her official capacity as Director of the Guilford County Department of Public Health, THE BOARD OF THE GUILFORD COUNTY DEPARTMENT OF PUBLIC HEALTH, GUILFORD COUNTY, THOMAS H. WRIGHT, in his official capacity as Director of the Office of State Personnel and the STATE PERSONNEL COMMISSION, Defendants\nNo. COA07-762\n(Filed 4 March 2008)\nAdministrative Law; Declaratory Judgments\u2014 judicial review of final agency decision \u2014 substantially equivalent exemption \u2014 failure to exhaust administrative remedies\nThe trial court did not err in a declaratory judgment case by dismissing for lack of subject matter jurisdiction under N.C.G.S. \u00a7 1A-1, Rules 12(b)(1), 12(b)(2), and 12(b)(6) plaintiff employee\u2019s complaint, seeking among other things a determination that the Guilford County Personnel Regulations (GCPR) were not substantially equivalent to the standards established by N.C.G.S. \u00a7 126-1 et seq. based on her contention that the memorandum terminating her employment did not give her any notice of any right to appeal to the superior court because: (1) *a case should be dismissed for lack of subject matter jurisdiction based on a party\u2019s failure to exhaust administrative remedies; (2) although Regulation 28 of the GCPR does not include a provision that the final agency decision may be appealed to the superior court of the county, it only governs disciplinary action and states the employee should refer to Regulation 31 if an employee has a complaint or grievance unrelated to the pending disciplinary action; (3) there was no indication in the record that plaintiff had filed a grievance or complaint under Regulation 31 regarding whether the county\u2019s regulations are substantially equivalent to the State Personnel Act; (4) although plaintiff contends she exhausted the administrative remedies set forth in the pertinent regulations when Regulation 28 is silent on the issue of further appeals and based on the fact that she appealed to the Guilford County Human Resources Director, the question of whether she has exhausted the remedies of Regulation 28 was not dispositive of whether she had exhausted all administrative remedies, and in fact plaintiff was also concurrently seeking redress in the North Carolina Office of Administrative Hearings; and (5) the final agency decision regarding whether the GCPR are substantially equivalent to the State Personnel Act may be reviewed by a trial court under Article 4, Chapter 150B of the Administrative Procedure Act only after the aggrieved person has exhausted all available administrative remedies made available to him by statute or agency rule.\nJudge JACKSON concurring in result only.\nAppeal by Plaintiff from order entered 7 February 2007 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 13 December 2007.\nJerry R. Everhardt, for Plaintiff-Appellant.\nGuilford County Department of Social Services, by Deputy County Attorney James A. Dickens, for Respondents-Appellees." }, "file_name": "0131-01", "first_page_order": 163, "last_page_order": 169 }