{ "id": 790176, "name": "GEORGE B. CLAY, PETITIONER v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, RESPONDENT", "name_abbreviation": "Clay v. Employment Security Commission", "decision_date": "1995-06-02", "docket_number": "No. 480PA93", "first_page": "83", "last_page": "87", "citations": [ { "type": "official", "cite": "340 N.C. 83" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "432 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": -1 }, { "cite": "111 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523046 ], "year": 1993, "opinion_index": -1, "case_paths": [ "/nc-app/111/0599-01" ] }, { "cite": "46 ALR4th 912", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "163 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "370" }, { "page": "370" } ], "opinion_index": 0 }, { "cite": "274 N.C. 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560125 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "372" }, { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0362-01" ] }, { "cite": "426 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "277" } ], "opinion_index": 0 }, { "cite": "333 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549177 ], "year": 1988, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0318-01" ] }, { "cite": "432 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "876" }, { "page": "876" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523046 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "605" }, { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0599-01" ] } ], "analysis": { "cardinality": 562, "char_count": 12988, "ocr_confidence": 0.752, "pagerank": { "raw": 1.101942756674106e-07, "percentile": 0.5686005245865685 }, "sha256": "27261ebee8741eddfcd949b2f96529bd2edca3449d5f1909c33e63ff6dfb9235", "simhash": "1:ab58a0877707b478", "word_count": 2071 }, "last_updated": "2023-07-14T17:34:40.112900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Orr did not take part in the consideration or decision of this case.", "Justice Orr did not participate in the consideration or decision of this case." ], "parties": [ "GEORGE B. CLAY, PETITIONER v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, RESPONDENT" ], "opinions": [ { "text": "WHICHARD, Justice.\nPetitioner was an intermittent employee of the Employment Security Commission (ESC) when the ESC considered him for the permanent position of Disabled Veterans\u2019 Outreach Specialist (DVOS) in October 1985. The ESC did not select petitioner for the position, though he met the minimum requirements and was a disabled veteran of the Vietnam era. Petitioner filed a grievance with the chairman of the ESC on 1 February 1986 alleging discrimination on the bases of age and veterans\u2019 preference. After an investigation the chairman concluded that no evidence of discrimination existed. He informed petitioner of his decision by letter dated 24 March 1986; the letter also informed petitioner he could appeal the chairman\u2019s decision to the State Personnel Commission within thirty days of petitioner\u2019s receipt of the letter. On 3 April 1986 petitioner filed an appeal with the Personnel Commission and requested a contested case hearing in the Office of Administrative Hearings (OAH).\nThe ESC moved to dismiss the matter for lack of jurisdiction on the ground that it was not timely filed. Administrative Law Judge Angela R. Bryant denied this motion on 3 November 1986. On 17 November 1989 Judge Bryant filed a recommended decision which included extensive findings of fact and conclusions of law. She concluded that the ESC had prejudiced petitioner\u2019s rights by failing to accord a preference to disabled Vietnam veterans when hiring a DVOS. She further concluded that the ESC had discriminated against petitioner on the basis of age. Judge Bryant recommended that the ESC place petitioner into the DVOS position effective 1 December 1985 with back and front pay, benefits and attorney\u2019s fees; she also denied the ESC\u2019s renewed motion to dismiss. On 8 March 1990 the ESC entered exceptions to the recommendation and filed another motion to dismiss.\nThe Personnel Commission dismissed petitioner\u2019s appeal with prejudice on 18 April 1990 \u201cfor lack of jurisdiction as it was untimely filed.\u201d On 16 May 1990 petitioner sought judicial review of the Commission\u2019s decision. Judge Brewer heard the case in Superior Court, Wake County, on 30 April 1991. He entered an order on 5 February 1992 reversing the Commission\u2019s decision and remanding the case to the Commission with instructions to adopt Judge Bryant\u2019s recommended decision, including all relief provided therein. The ESC appealed to the Court of Appeals, which reversed Judge Brewer\u2019s order.\nThe Court of Appeals, without passing on the merits of the discrimination claim, held that the trial court erred by reversing the Commission\u2019s decision and order which dismissed petitioner\u2019s appeal for lack of jurisdiction. The court concluded that chapter 126 of the North Carolina General Statutes governed petitioner\u2019s right to appeal the ESC\u2019s action and that the time limit contained in N.C.G.S. \u00a7 126-38 should apply to petitioner\u2019s case. Section 126-38 provides: \u201cAny employee appealing any decision or action shall file a petition for a contested case with the Office of Administrative Hearings as provided in G.S. 150B-23(a) no later than 30 days after receipt of notice of the decision or action which triggers the right of appeal.\u201d Although intermittent employees like petitioner are not considered \u201cemployees\u201d for purposes of chapter 126, the Court of Appeals did \u201cnot believe that the Legislature intended to treat prospective state employees more favorably than present state employees.\u201d Clay v. Employment Security Comm., 111 N.C. App. 599, 605, 432 S.E.2d 873, 876 (1993). It thus determined that \u201clegislative intent requires the application of the statute of limitations that is applicable to state employees found in G.S. \u00a7 126-38 to the present action.\u201d Id.\nThe Court of Appeals further concluded that petitioner\u2019s oral notice from the ESC on 22 November 1985 that he had not been selected for the DVOS position triggered his right to appeal. He filed his petition on 3 April 1986, more than thirty days after the oral notification. The Court of Appeals therefore concluded that the Commission had properly dismissed the case for lack of jurisdiction based on petitioner\u2019s failure to file his appeal within the time period prescribed by N.C.G.S. \u00a7 126-38.\nWe agree with the Court of Appeals\u2019 conclusion that petitioner had a right to appeal the ESC\u2019s action to the Personnel Commission. However, we hold that the court improperly created a new statute of limitations pertaining to such appeals by applicants for state employment when it applied N.C.G.S. \u00a7 126-38 to this case. We therefore reverse the Court of Appeals on that issue.\nPetitioner\u2019s right to appeal to the Personnel Commission arises under N.C.G.S. \u00a7 126-36.1, which provides: \u201cAny applicant for State employment who has reason to believe that employment was denied in violation of G.S. 126-16 shall have the right to appeal directly to the State Personnel Commission.\u201d N.C.G.S. \u00a7 126-16 provides:\nAll State departments and agencies and all local political subdivisions of North Carolina shall give equal opportunity for employment and compensation, without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition ... to all persons otherwise qualified, except where specific age, sex or physical requirements constitute bona fide occupational qualifications necessary to proper and efficient administration. This section with respect to equal opportunity as to age shall be limited to individuals who are at least 40 years of age.\nPetitioner alleged a violation of this statute and thus had a right to appeal to the Commission.\nThe issue before us is the proper time limit for the filing of appeals under N.C.G.S. \u00a7 126-36.1. We agree with the Court of Appeals that no section of chapter 126 \u201cspecifically establishes the time limit for an appeal to the OAH by an individual who is not currently an employee of the state.\u201d Clay, 111 N.C. App. at 604, 432 S.E.2d at 876. We disagree, however, with the conclusion that N.C.G.S. \u00a7 126-38 should be construed to apply to petitioner\u2019s case in the face of such a void. Courts may apply a statute of limitation only to cases clearly within its provisions. Ocean Hill Joint Venture v. N.C. Dept. of E.H.N.R., 333 N.C. 318, 322, 426 S.E.2d 274, 277 (1988); Fishing Pier v. Town of Carolina Beach, 274 N.C. 362, 372, 163 S.E.2d 363, 370 (1968). Statutes of limitation \u201c \u2018should not be extended by construction.\u2019 \u201d Fishing Pier, 274 N.C. at 372, 163 S.E.2d at 370 (quoting 53 C.J.S. Limitations of Actions \u00a7 3, at 912 (1948)) (current version at 54 C.J.S. Limitations of Actions \u00a7 7, at 29 (1987)). These rules ensure that parties have notice of the time limits applicable to their cases.\nPetitioner, an intermittent state employee, is not an \u201cemployee\u201d for purposes of chapter 126 because article 8 of this chapter applies only to \u201ccareer State employees.\u201d N.C.G.S. \u00a7 126-39 (1993). N.C.G.S. \u00a7 126-38, which establishes the time limit for appeals, applies only to employees, not to applicants for employment like petitioner.\nThe statute of limitations applicable to petitioner\u2019s case, therefore, is N.C.G.S. \u00a7. 1-52(2), which provides that an action created by statute must be commenced within three years unless the statute provides a different time limitation. N.C.G.S. \u00a7 126-36.1 creates the claim of an applicant for state employment who alleges discrimination by the hiring agency. The applicant commences a discrimination claim by filling an appeal with the Personnel Commission requesting a contested case hearing in the OAH. Although the action is technically an appeal of an adverse employment decision, that appeal effectively constitutes the commencement of the litigation. Under N.C.G.S. \u00a7 1-52(2), therefore, a party like petitioner must file an appeal within three years of an allegedly discriminatory action. The employment decision giving rise to petitioner\u2019s appeal occurred in October 1985. Petitioner filed an appeal with the Personnel Commission and requested a contested case hearing on 3 April 1986. His claim, therefore, is not time-barred because he commenced his action within three years of the date of the allegedly discriminatory employment decision.\nWe note that in 1988 the General Assembly amended N.C.G.S. \u00a7 150B-23 by adding subsection (f) which provides a default time limitation of sixty days for claims like petitioner\u2019s. 1988 N.C. Sess. Laws ch. 1111, \u00a7 5. N.C.G.S. \u00a7 150B-23(f) provides:\nUnless another statute or a federal statute or regulation sets a time limitation for the filing of a petition in contested cases against a specified agency, the general limitation for the filing of a petition in a contested case is 60 days. The time limitation, whether established by another statute, federal statute, or federal regulation, or this section, shall commence when notice is given of the agency decision to all persons aggrieved who are known to the agency by personal delivery or by [United States mail]. The notice shall be in writing, and shall set forth the agency action, and shall inform the persons of the right, the procedure, and the time limit to file a contested case petition.\nN.C.G.S. \u00a7 150B-23(f) (Supp. 1994). This provision applies to persons in petitioner\u2019s position whose discrimination claims arose on or after the effective date of the statute.\nAccordingly, we reverse the decision of the Court of Appeals. The case is remanded to the Court of Appeals with instructions to consider the remaining issues presented in the parties\u2019 briefs to that court.\nREVERSED AND REMANDED.\nJustice Orr did not participate in the consideration or decision of this case.\nGEORGE B. CLAY v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA\nORDER\nNo. 480PA93\n(Filed 2 June 1995)\nUpon consideration of the petition filed by Defendant in this matter for rehearing of the decision of this Court pursuant to Rule 31, N.C. Rules of Appellate Procedure, the following order was entered and is hereby certified to the North Carolina Court of Appeals:\n\u201cThe petition to rehear is allowed. The Court will not receive further briefs or hear additional arguments. The opinion filed 7 April 1995 is superseded by the opinion filed today.\nBy order of the Court in conference, this the 2nd day of June, 1995.\nLake. Jr.. J.\nFor the Court", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Voerman & Carroll, P.A., by David P. Voerman, for petitioner-appellant.", "T.S. Whitaker, Chief Counsel, and C. Coleman Billingsley, Jr., Staff Attorney, for respondent-appellee." ], "corrections": "", "head_matter": "GEORGE B. CLAY, PETITIONER v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, RESPONDENT\nNo. 480PA93\n(Filed 2 June 1995)\nPublic Officers and Employees \u00a7 63 (NCI4th)\u2014 discrimination in state hiring \u2014 statute of limitations\nPetitioner\u2019s case was not time barred where he was an intermittent employee of the Employment Security Commission who was considered for the permanent position of Disabled Veterans\u2019 Outreach Specialist in October of 1985; he was not selected for the position, although he was a disabled veteran of the Vietnam era and met the minimum requirements; he filed a grievance alleging discrimination based on age and veteran\u2019s preference; the chair of the ESC concluded that no evidence of discrimination existed and informed petitioner of the decision by letter on 24 March 1986; and petitioner filed an appeal with the Personnel Commission and requested a contested case hearing on 3 April 1986. The applicable statute of limitations is N.C.G.S. \u00a7 1-52(2), which provides that an action created by statute must be commenced within three years unless the statute provides a different limitation. An applicant for state employment commences a discrimination claim by filing an appeal with the Personnel Commission requesting a contested case hearing in the Office of Administrative Hearings, which effectively constitutes commencement of litigation even though the action is technically an appeal of an adverse employment decision. The employment decision giving rise to petitioner\u2019s appeal occurred in October of 1985 and Petitioner filed an appeal with the Personnel Commission on 3 April 1986, within 3 years of the date of the allegedly discriminatory employment decision. N.C.G.S. \u00a7 150B-23 has now been amended to provide a 60 day default time limitation, which applies to people in petitioner\u2019s position whose claims arose on or after the effective date of the statute.\nAm Jur 2d, Public Officers and Employees \u00a7 38.\nRights of state and municipal public employees in grievance proceedings. 46 ALR4th 912.\nJustice Orr did not take part in the consideration or decision of this case.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 111 N.C. App. 599, 432 S.E.2d 873 (1993), reversing a judgment entered 5 February 1992 by Brewer, J., in Superior Court, Wake County. Heard in the Supreme Court 14 February 1995; opinion filed 7 April 1995; said opinion superseded by this opinion filed 2 June 1995 upon the allowance of respondent\u2019s petition for rehearing.\nVoerman & Carroll, P.A., by David P. Voerman, for petitioner-appellant.\nT.S. Whitaker, Chief Counsel, and C. Coleman Billingsley, Jr., Staff Attorney, for respondent-appellee." }, "file_name": "0083-01", "first_page_order": 115, "last_page_order": 119 }