Johnson v. University of North Carolina

688 S.E.2d 546, 202 N.C. App. 355, 2010 N.C. App. LEXIS 187
CourtCourt of Appeals of North Carolina
DecidedFebruary 2, 2010
DocketNo. COA09-783
StatusPublished
Cited by9 cases

This text of 688 S.E.2d 546 (Johnson v. University of North Carolina) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. University of North Carolina, 688 S.E.2d 546, 202 N.C. App. 355, 2010 N.C. App. LEXIS 187 (N.C. Ct. App. 2010).

Opinion

MARTIN, Chief Judge.

Plaintiff Henry V. Johnson, Jr. appeals from the Wake County Superior Court’s order granting defendants’ motion to dismiss plaintiff’s action. We affirm.

Our 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 (“defendant WSSU”), one of the constituent institutions of defendant University of North Carolina (“defendant UNC”). 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’s two-year term appointment specified that the agreement was “subject to and governed by pertinent provisions of the Winston-Salem [356]*356University Tenure Policies and Regulations [(“Tenure Regulations”)] and Chapter Six of the Code of The University of North Carolina [(“UNC Code”)], as written and as may be revised and [wa]s hereby incorporated by reference.”

On 4 December 2006, defendant WSSU sent plaintiff a letter notifying him that he was suspended with pay effective immediately pending further investigation “because of the unprofessional conduct [plaintiff] displayed on November 27, 2006 . . . and because of concerns about [his] classroom behavior.” On 3 April 2007, defendant WSSU notified plaintiff that it intended to discharge him “because of [his] job performance” and that he had “the right to request the written specification of the reasons for the intended discharge” 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’s 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.

On 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 (“the Committee”) “unanimously concluded that the administration established its case on counts of neglect of duty and misconduct.” 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— which, according to the Tenure Regulations, must have been filed within ten days after he was informed of the final decision to do so— plaintiff was dismissed as a faculty member and was to be removed from payroll as of 30 June 2007.

In August 2008, plaintiff filed a complaint against defendants in superior court, alleging that defendants “breached the contract of employment by wrongfully discharging [pjlaintiff” because defendants “never had authority to discharge [p]laintiff for alleged neglect of duty or alleged misconduct under the terms of the parties[’] contract.” On 11 September 2008, defendants moved to dismiss the action pursuant to N.C.G.S. § 1A-1, Rule 12(b)(1), (2), and (6). After a hear[357]*357ing, the trial court granted defendants’ motion to dismiss pursuant to N.C.G.S. § 1A-1, Rule 12(b)(1) on the grounds that “plaintiff elected to pursue his administrative remedies in connection with his discharge and failed to exhaust his administrative remedies in connection with his discharge.” Consequently, the trial court dismissed plaintiff’s claims. Plaintiff appeals.

Plaintiff contends the trial court has subject matter jurisdiction over the action because plaintiff “exhausted his administrative remedies according to the procedures set forth in the [Tenure Regulations]” prior to filing the present action. We disagree.

“An action is properly dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction where the plaintiff has failed to exhaust administrative remedies.” Shell Island Homeowners Ass’n v. Tomlinson, 134 N.C. App. 217, 220, 517 S.E.2d 406, 410 (1999). An appellate court’s 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).

“The 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. § 150B-43,” see Huang v. N.C. State Univ., 107 N.C. App. 710, 713, 421 S.E.2d 812, 814 (1992), which provides, in part:

Any 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 ....

N.C. Gen. Stat. § 150B-43 (2009). However, defendant UNC is “exempt from all administrative remedies outlined in the APA.” See Huang, 107 N.C. App. at 713, 421 S.E.2d at 814. Thus, “[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.” 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. § 150B-43 from a decision of a constituent institution of defendant UNC: “(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.” See id. at 714, 421 S.E.2d at 814. Since the parties in the present case dispute only whether plain[358]*358tiff has exhausted the administrative remedies provided by defendants, we limit our review to this issue.

As indicated above, the parties agree that the contract for plaintiff’s 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 “Due Process Before Discharge or the Imposition of Serious Sanctions,” although plaintiff’s two-year term appointment was not a tenured position, plaintiff was “regarded as having tenure until the end of [his] term,” and so was guaranteed that he could be “discharged 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.”

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Cite This Page — Counsel Stack

Bluebook (online)
688 S.E.2d 546, 202 N.C. App. 355, 2010 N.C. App. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-university-of-north-carolina-ncctapp-2010.