Steward v. Green

657 S.E.2d 719, 189 N.C. App. 131, 2008 N.C. App. LEXIS 423
CourtCourt of Appeals of North Carolina
DecidedMarch 4, 2008
DocketCOA07-762
StatusPublished
Cited by2 cases

This text of 657 S.E.2d 719 (Steward v. Green) 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
Steward v. Green, 657 S.E.2d 719, 189 N.C. App. 131, 2008 N.C. App. LEXIS 423 (N.C. Ct. App. 2008).

Opinions

ARROWOOD, Judge.

Plaintiff appeals from an order dismissing her complaint against Defendants pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1), Rule 12(b)(2), and Rule 12(b)(6). For the reasons discussed herein, we affirm.

Angela 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.

On 17 February 2005, Plaintiff received her annual employee performance appraisal in which she was given a final rating of “2,” which denotes job performance “partially below job expectations.” This rating also constituted a “written warning” pursuant to Regulation 28 of the Guilford County Personnel Regulations. Plaintiff received a separate written warning from her supervisor stating that Plaintiff’s “performance is inadequate and unacceptable.” Plaintiff “put four to ten packets of aspirin in each packet of materials to be given to . . . clients[,]” “disregard[ing] . . . [an] instruction] . . . not to distribute medications].]” Plaintiff had been reminded numerous times that “giving aspirin to children was potentially dangerous.”

[133]*133On 11 March 2005, Plaintiff received a notification of administrative leave with pay “pending possible disciplinary and other action” 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.

On 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’s “action could have [endangered children and] put the Public Health Department and Guilford County at considerable risk[.]”

Plaintiff filed a complaint in superior court on 30 August 2006. In Plaintiff’s complaint, her first claim for relief prayed for declaratory judgment that the Guilford County Personnel Regulations were not “substantially equivalent” to the standards established by N.C. Gen. Stat. § 126-1, et seq. Plaintiff specifically contended that the memorandum terminating her employment “did not give [Plaintiff] any notice of any right to appeal” to the county superior court.

On 30 October 2006, Defendants filed a motion to dismiss Plaintiff’s complaint pursuant to N.C. Gen. Stat. § 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’s personnel regulations were substantially equivalent to the State Personnel Act.

On 7 February 2007, the trial court granted Defendant’s motion to dismiss, concluding that the trial court lacked subject matter jurisdiction. From this order, Plaintiff appeals.

Plaintiff contends that the trial has subject matter jurisdiction to determine whether the Guilford County Personnel Guidelines were the “substantial equivalent” to N.C. Gen. Stat. § 126-11. We disagree.

When 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)). “[Questions of subject matter jurisdiction may properly be raised at any [time].” Forsyth [134]*134County Bd. of Social Services v. Division of Social Services by Everhart, 317 N.C. 689, 692, 346 S.E.2d 414, 416 (1986).

N.C. Gen. Stat. § 126-ll(a) (2005) provides:

The 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.

(Emphasis added).

N.C. Gen. Stat. § 126-ll(d) (2005) also explicitly states:

In order to define “substantially equivalent,” the State Personnel Commission is authorized to promulgate rules and regulations to implement the federal merit system standards!)]

In the instant case, Guilford County has previously obtained a “substantially equivalent” exemption from N.C. Gen. Stat § 126-1, el seq. On 14 March 2006, the Guilford County Attorney’s Office received a letter from E.D. Maynard, the managing partner of the N.C. Office of State Personnel regarding “Substantially Equivalent Status.” The letter stated, “[i]n February 2000, the State Personnel Commission approved substantial equivalency for all of Guilford County’s human resource program areas as they apply to departments of social services, public health and area mental health programs and their employees.” The letter further stated, “[t]here has been no change in this status since that time.” Regulation 1 of the Guilford County Personnel Regulations also states that the “[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)!.]”

Notwithstanding the foregoing letter, the State Personnel Commission’s rule N.C. Admin. Code tit. 25, r. 11.2404 (June 2007 Cum. Supp.) states the following:

[135]*135(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:
(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.

Regulation 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.

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Related

Thompson v. North Carolina Respiratory Care Board
688 S.E.2d 516 (Court of Appeals of North Carolina, 2010)
Steward v. Green
657 S.E.2d 719 (Court of Appeals of North Carolina, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
657 S.E.2d 719, 189 N.C. App. 131, 2008 N.C. App. LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steward-v-green-ncctapp-2008.