{ "id": 4175072, "name": "HENRY V. JOHNSON, JR., Plaintiff v. THE UNIVERSITY OF NORTH CAROLINA AND WINSTON-SALEM STATE UNIVERSITY, Defendants", "name_abbreviation": "Johnson v. University of North Carolina", "decision_date": "2010-02-02", "docket_number": "No. COA09-783", "first_page": "355", "last_page": "359", "citations": [ { "type": "official", "cite": "202 N.C. App. 355" } ], "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": "421 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1992, "pin_cites": [ { "page": "814" }, { "page": "814" }, { "page": "814" }, { "page": "814" }, { "page": "814", "parenthetical": "emphasis added" }, { "page": "815" }, { "page": "815", "parenthetical": "omission in original" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 710", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527932 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "713" }, { "page": "713" }, { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0710-01" ] }, { "cite": "501 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659712, 1659780, 1659788, 1659929, 1659838 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0284-03", "/nc/348/0284-04", "/nc/348/0284-01", "/nc/348/0284-02", "/nc/348/0284-05" ] }, { "cite": "495 S.E.2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "397" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11655550 ], "year": 1998, "pin_cites": [ { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0490-01" ] }, { "cite": "517 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143772 ], "year": 1999, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0217-01" ] } ], "analysis": { "cardinality": 492, "char_count": 10668, "ocr_confidence": 0.756, "pagerank": { "raw": 1.1667864234034425e-07, "percentile": 0.5853320019815828 }, "sha256": "30195f823d9a3458c2ca8520b15c5eb6870aa23ef41fa6b77903e913feb09d05", "simhash": "1:1bf81970a1abac56", "word_count": 1660 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and GEER concur." ], "parties": [ "HENRY V. JOHNSON, JR., Plaintiff v. THE UNIVERSITY OF NORTH CAROLINA AND WINSTON-SALEM STATE UNIVERSITY, Defendants" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nPlaintiff Henry V. Johnson, Jr. appeals from the Wake County Superior Court\u2019s order granting defendants\u2019 motion to dismiss plaintiff\u2019s action. We affirm.\nOur recitation of the facts is limited to those relevant to the issue before us on appeal. In November 2004, plaintiff was employed under a one-year probationary term appointment as an assistant professor by defendant Winston-Salem State University (\u201cdefendant WSSU\u201d), one of the constituent institutions of defendant University of North Carolina (\u201cdefendant UNC\u201d). On 16 November 2004, the provost and vice chancellor of defendant WSSU sent plaintiff a letter advising him that he had been recommended for a two-year term appointment as assistant professor for two nine-month academic years, beginning 15 August 2005 and ending 16 May 2007. The contract for plaintiff\u2019s two-year term appointment specified that the agreement was \u201csubject to and governed by pertinent provisions of the Winston-Salem University Tenure Policies and Regulations [(\u201cTenure Regulations\u201d)] and Chapter Six of the Code of The University of North Carolina [(\u201cUNC Code\u201d)], as written and as may be revised and [wa]s hereby incorporated by reference.\u201d\nOn 4 December 2006, defendant WSSU sent plaintiff a letter notifying him that he was suspended with pay effective immediately pending further investigation \u201cbecause of the unprofessional conduct [plaintiff] displayed on November 27, 2006 . . . and because of concerns about [his] classroom behavior.\u201d On 3 April 2007, defendant WSSU notified plaintiff that it intended to discharge him \u201cbecause of [his] job performance\u201d and that he had \u201cthe right to request the written specification of the reasons for the intended discharge\u201d within ten business days pursuant to Section IV of the Tenure Regulations. On 20 April 2007, presumably in response to a request from plaintiff, defendant WSSU sent a letter to plaintiff enumerating the reasons for defendant WSSU\u2019s intention to discharge him. In this letter, the provost and vice chancellor for defendant WSSU cited eight grounds to support its determination that plaintiff neglected his duty as an assistant professor, and two grounds to support its determination that plaintiff committed misconduct. The letter continued that, upon receiving the reasons for his discharge, plaintiff could request a hearing to contest the stated reasons for his discharge. Plaintiff admits that he requested a hearing on the matter.\nOn 31 May 2007, defendant WSSU sent plaintiff a letter indicating that a hearing had been conducted and that the Committee on Discharge, Non-Reappointment and Non-Promotion (\u201cthe Committee\u201d) \u201cunanimously concluded that the administration established its case on counts of neglect of duty and misconduct.\u201d On 26 June 2007, defendant WSSU notified plaintiff that, since he failed to give notice that he would appeal from the decision to discharge him\u2014 which, according to the Tenure Regulations, must have been filed within ten days after he was informed of the final decision to do so\u2014 plaintiff was dismissed as a faculty member and was to be removed from payroll as of 30 June 2007.\nIn August 2008, plaintiff filed a complaint against defendants in superior court, alleging that defendants \u201cbreached the contract of employment by wrongfully discharging [pjlaintiff\u201d because defendants \u201cnever had authority to discharge [p]laintiff for alleged neglect of duty or alleged misconduct under the terms of the parties[\u2019] contract.\u201d On 11 September 2008, defendants moved to dismiss the action pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(1), (2), and (6). After a hearing, the trial court granted defendants\u2019 motion to dismiss pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(1) on the grounds that \u201cplaintiff elected to pursue his administrative remedies in connection with his discharge and failed to exhaust his administrative remedies in connection with his discharge.\u201d Consequently, the trial court dismissed plaintiff\u2019s claims. Plaintiff appeals.\nPlaintiff contends the trial court has subject matter jurisdiction over the action because plaintiff \u201cexhausted his administrative remedies according to the procedures set forth in the [Tenure Regulations]\u201d prior to filing the present action. We disagree.\n\u201cAn action is properly dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction where the plaintiff has failed to exhaust administrative remedies.\u201d Shell Island Homeowners Ass\u2019n v. Tomlinson, 134 N.C. App. 217, 220, 517 S.E.2d 406, 410 (1999). An appellate court\u2019s review of such a dismissal is de novo. See Smith v. Privette, 128 N.C. App. 490, 493, 495 S.E.2d 395, 397, appeal dismissed, 348 N.C. 284, 501 S.E.2d 913 (1998).\n\u201cThe actions of [defendant UNC], of which [defendant WSSU] is a part, are specifically made subject to the judicial review procedures of N.C.G.S. \u00a7 150B-43,\u201d see Huang v. N.C. State Univ., 107 N.C. App. 710, 713, 421 S.E.2d 812, 814 (1992), which provides, in part:\nAny 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 ....\nN.C. Gen. Stat. \u00a7 150B-43 (2009). However, defendant UNC is \u201cexempt from all administrative remedies outlined in the APA.\u201d See Huang, 107 N.C. App. at 713, 421 S.E.2d at 814. Thus, \u201c[b]ecause no statutory administrative remedies are made available to employees of [defendant UNC], those who have grievances with [defendant UNC] have available only those administrative remedies provided by the rules and regulations of [defendant UNC] and must exhaust those remedies before having access to the courts.\u201d Id. at 713-14, 421 S.E.2d at 814. Therefore, before a party may ask the courts for relief pursuant to N.C.G.S. \u00a7 150B-43 from a decision of a constituent institution of defendant UNC: \u201c(1) the person must be aggrieved; (2) there must be a contested case; and (3) the administrative remedies provided by [defendant UNC] must be exhausted.\u201d See id. at 714, 421 S.E.2d at 814. Since the parties in the present case dispute only whether plaintiff has exhausted the administrative remedies provided by defendants, we limit our review to this issue.\nAs indicated above, the parties agree that the contract for plaintiff\u2019s two-year term appointment was subject to the Tenure Regulations and the UNC Code. According to Section IV of the Tenure Regulations and Section 603 of the UNC Code, entitled \u201cDue Process Before Discharge or the Imposition of Serious Sanctions,\u201d although plaintiff\u2019s two-year term appointment was not a tenured position, plaintiff was \u201cregarded as having tenure until the end of [his] term,\u201d and so was guaranteed that he could be \u201cdischarged or suspended from employment or diminished in rank only for reasons of incompetence, neglect of duty, or misconduct of such a nature as to indicate that [plaintiff was] unfit to continue as a member of the faculty.\u201d\nPlaintiff admits that he received defendant WSSU\u2019s letter dated 3 April 2007 notifying him that it intended to discharge him and that he had \u201cthe right to request the written specification of the reasons for the intended discharge\u201d pursuant to Section IV of the Tenure Regulations. Plaintiff further admits that he notified defendant WSSU that he \u201cchallenged its decision\u201d and requested a hearing on the matter.\nAfter plaintiff\u2019s case was heard by the Committee and it \u201cunanimously concluded that the administration established its case on counts of neglect of duty and misconduct,\u201d plaintiff does not dispute that he did not appeal to the Board of Trustees from the Committee\u2019s decision to discharge him. Instead, plaintiff suggests that, because the administrative procedures provide that a faculty member \u201cmay\u201d appeal an adverse decision to the Board of Trustees but do not provide that a faculty member \u201cshall\u201d appeal, plaintiff was not required to appeal from the decision to discharge him to the Board of Trustees before filing the present action in order to have exhausted his administrative remedies. While we agree that plaintiff was not required to pursue any appeal from defendant WSSU\u2019s decision to discharge him, as we stated above, before a party may seek judicial review of a decision by a constituent institution of defendant UNC, that party must exhaust \u201cthe administrative remedies provided by [defendant UNC].\u201d See Huang, 107 N.C. App. at 714, 421 S.E.2d at 814 (emphasis added). Here, defendants provided plaintiff with \u201cseveral levels of appeal,\u201d \u201cfirst to the Committee [on Discharge, Non-Reappointment and Non-Promotion], then to the Trustees, and finally to the Board [of Governors].\u201d See id. at 714, 421 S.E.2d at 815. Plaintiff elected to appeal to the Committee, but chose not to pursue the other levels of appeal provided by defendants. This Court has concluded that \u201cthe policy of requiring the exhaustion of administrative remedies prior to the filing of court actions does not require merely the initiation of prescribed administrative procedures, but that they should be pursued to their appropriate conclusion and their final outcome awaited before seeking judicial intervention . . . See id. at 715, 421 S.E.2d at 815 (omission in original) (internal quotation marks omitted). Since plaintiff elected not to pursue each level of appeal provided by defendants, we conclude that plaintiff did not exhaust his remedies prior to filing the present action in superior court. Accordingly, we hold the trial court correctly concluded that it lacked jurisdiction to consider whether defendants wrongfully discharged plaintiff for neglect of duty and misconduct.\nAffirmed.\nJudges ELMORE and GEER concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Morgan, Herring, Morgan, Green, & Rosenblutt, L.L.R, by Todd J. Combs, for plaintiff-appellant.", "Roy Cooper, Attorney General, by Brian R. Berman, Assistant Attorney General, for the State." ], "corrections": "", "head_matter": "HENRY V. JOHNSON, JR., Plaintiff v. THE UNIVERSITY OF NORTH CAROLINA AND WINSTON-SALEM STATE UNIVERSITY, Defendants\nNo. COA09-783\n(Filed 2 February 2010)\nAdministrative Law\u2014 judicial review \u2014 failure to exhaust administrative remedies\nThe trial court did not err by concluding it lacked jurisdiction and by granting defendants\u2019 motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(1) plaintiff\u2019s action for breach of an employment contract based on wrongful discharge. Plaintiff elected to pursue his administrative remedies in connection with his discharge and failed to exhaust his administrative remedies.\nAppeal by plaintiff from order entered 5 March 2009 by Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard in the Court of Appeals 30 November 2009.\nMorgan, Herring, Morgan, Green, & Rosenblutt, L.L.R, by Todd J. Combs, for plaintiff-appellant.\nRoy Cooper, Attorney General, by Brian R. Berman, Assistant Attorney General, for the State." }, "file_name": "0355-01", "first_page_order": 383, "last_page_order": 387 }