Tucker v. Fayetteville State University

• Court: Court of Appeals of North Carolina
• Decided: December 16, 2014
• Docket: 14-178
• Status: Published

Opinion

NO. COA14-178

NORTH CAROLINA COURT OF APPEALS

Filed: 16 December 2014

ERIC TUCKER, Plaintiff

v. Cumberland County No. 13 CVS 2946 FAYETTEVILLE STATE UNIVERSITY and JAMES A. ANDERSON, Chancellor, Defendants

Appeal by plaintiff from order entered 8 November 2013 by

Judge Lucy Inman in Cumberland County Superior Court. Heard in

the Court of Appeals 13 August 2014.

McGeachy, Hudson & Zuravel, by Donald C. Hudson, for plaintiff-appellant.

Attorney General Roy Cooper, by Special Deputy Attorney General Kimberly D. Potter, for defendant-appellees.

CALABRIA, Judge.

Plaintiff Eric Tucker (“plaintiff”) appeals from an order

dismissing his complaint with prejudice and, alternatively,

granting Fayetteville State University’s (“FSU”) and University

Chancellor James A. Anderson’s (“Anderson”) (collectively,

“defendants”) motion for summary judgment. We affirm.

Plaintiff had a written employment contract and had been

employed as the head coach of the FSU women’s basketball team -2- for sixteen years. During plaintiff’s tenure, he never had any

negligent evaluations, reprimands, or warnings. According to

plaintiff, he always executed his duties in an exemplary manner.

In April 2009, FSU’s Department of Police and Public Safety

(“FSU DPPS”) investigated allegations regarding plaintiff’s

inappropriate language towards team members, assault on a team

member, and threats to terminate team members’ athletic

scholarships. As a result of FSU DPPS’s report, Anderson

decided there were grounds for termination. FSU subsequently

informed plaintiff that he could either resign his position or

FSU would begin the process of terminating his employment. In a

letter dated 21 April 2009, plaintiff notified the FSU athletic

director of his decision to retire. On 1 July 2009, plaintiff

did in fact retire, even though his contract did not expire

until 30 June 2010.

On 23 December 2009, plaintiff filed a complaint against

defendants seeking compensatory damages for breach of contract,

alleging FSU lacked just cause to terminate his employment and

forced him to resign against his will. Defendants filed a

motion to dismiss. On 22 April 2010, the trial court granted

defendants’ motion and dismissed the action with prejudice

pursuant to Rule 12(b)(6). On appeal, this Court reversed the -3- dismissal. After the case was remanded, plaintiff voluntarily

dismissed that complaint without prejudice.

On 12 April 2013, plaintiff timely refiled his complaint

against defendants, alleging, inter alia, that defendants

breached his employment contract because defendants lacked just

cause to terminate his employment and forced him to resign

against his will. Plaintiff alleged that “the grievance system

set up by the Defendants does not allow for the Plaintiff to

receive the compensatory damages to which he is entitled based

upon the alleged breach of contract and the resulting damage to

the Plaintiff’s ability to engage in his profession.”

Defendants subsequently filed a motion to dismiss pursuant to

N.C.R Civ. P. 12(b)(1) and 12(b)(2) on the grounds that

plaintiff failed to exhaust his administrative remedies and

sovereign immunity. Defendants also included a motion for

summary judgment on the grounds that there was no genuine issue

of material fact with respect to the breach of plaintiff’s

employment contract. On 8 November 2013, the trial court

entered an order dismissing plaintiff’s complaint with prejudice

and in the alternative granted defendants’ motion for summary

judgment. Plaintiff appeals. -4- On appeal, plaintiff argues that the trial court erred in

granting both defendants’ motion to dismiss the complaint and

defendants’ motion for summary judgment. 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. An appellate court’s

review of such a dismissal is de novo.” Johnson v. Univ. of

N.C., 202 N.C. App. 355, 357, 688 S.E.2d 546, 548 (2010)

(citations and quotations omitted).

“Any party or person aggrieved by the final decision in a

contested case, and who has exhausted all administrative

remedies made available to the party or person aggrieved by

statute or agency rule, is entitled to judicial review of the

decision[.]” N.C. Gen. Stat. § 150B-43 (2013). The actions of

the University of North Carolina and its constituent

institutions are subject to the judicial review procedures of

N.C. Gen. Stat. § 150B-43. Huang v. N.C. State University, 107

N.C. App. 710, 713, 421 S.E.2d 812, 814 (1992). Since FSU is a

constituent institution of the University of North Carolina

pursuant to N.C. Gen. Stat. § 116-4 (2013), any action taken is

subject to specific review procedures. “Because no statutory

administrative remedies are made available to employees of the

University [of North Carolina], those who have grievances with -5- the University have available only those administrative remedies

provided by the rules and regulations of the University and must

exhaust those remedies before having access to the courts.”

Huang, 107 N.C. App. at 713-14, 421 S.E.2d at 814. “Therefore,

before a party may ask the courts for relief from a University

decision: (1) the person must be aggrieved; (2) there must be a

contested case; and (3) the administrative remedies provided by

the University must be exhausted.” Id. at 714, 421 S.E.2d at

814. Additionally, “the complaint should be carefully

scrutinized to ensure that the claim for relief is not inserted

for the sole purpose of avoiding the exhaustion rule.” Id. at

715, 421 S.E.2d at 816 (citation omitted).

As an initial matter, the correct procedure for seeking

review of an administrative decision is to file a petition in

court, explicitly stating the exceptions taken to the

administrative decision. Id. at 715, 421 S.E.2d at 815. “The

burden of showing the inadequacy of the administrative remedy

is on the party claiming the inadequacy, and the party making

such a claim must include such allegation in the complaint.” Id.

(citations omitted). “In order, however, to rely upon futility

or inadequacy, allegations of the facts justifying avoidance of

the administrative process must be pled in the complaint.”

Justice for Animals, Inc. v. Robeson Cty., 164 N.C. App. 366, -6- 372, 595 S.E.2d 773, 777 (2004) (citation and internal quotation

marks omitted).

In the instant case, according to plaintiff’s employment

contract, plaintiff was “subject to Fayetteville State

University’s Employment Policies for Personnel Exempt from the

State Personnel Act” (the “employment policies”). The

employment policies are incorporated by reference and include

grievance policies and procedures for employees to secure review

of decisions concerning discharge or termination of employment.

Therefore, plaintiff was entitled to all of the procedures

available in the employment policies. Those procedures

included, inter alia, a written grievance to the Director of

Human Resources, a hearing before a grievance committee, and

ultimately review of the grievance by the University of North

Carolina Board of Governors. Once plaintiff completed that

process, he would have been entitled to judicial review of the

decision pursuant to N.C. Gen. Stat. § 150B-43.

Nevertheless, plaintiff elected not to pursue any of the

administrative remedies available to him, arguing that the

administrative remedies provided by FSU were so inadequate that

he essentially had no effective administrative remedies.

Plaintiff contends that due to his unique position as a

basketball coach, the outcome of any administrative remedy -7- “would have been so unfair to the team and the coach as to

render such procedures virtually meaningless.” Specifically,

plaintiff contends that, as a basketball coach, proceeding with

an administrative remedy would cause damage to the basketball

team, and “a coach who has formed close bonds with the players

on his team could not be reasonably expected to damage the team

in that manner.”

Plaintiff correctly relies on Huang for the proposition

that he was not required to exhaust his administrative remedies

“when the only remedies available from the agency are shown to

be inadequate.” Huang, 107 N.C. App. at 715, 421 S.E.2d at 815

(citation omitted). Huang, as a tenured professor, filed a

complaint in superior court seeking compensatory damages rather

than pursuing administrative remedies, believing them to be

inadequate. Id. at 712, 421 S.E.2d at 814. Plaintiff, like

Huang, is an aggrieved party in a contested case. Unlike Huang,

plaintiff supports his argument with his loyalty to the

basketball team. However, plaintiff provides no authority to

support his contention that his loyalty to the basketball team

satisfies his burden of showing the inadequacy of the

administrative remedy. Since plaintiff submitted a letter

indicating his decision to retire rather than requesting a

hearing, then filed a complaint, plaintiff not only failed to -8- meet his burden of showing that the administrative remedies were

inadequate, but also essentially avoided the exhaustion rule.

Therefore, the trial court lacked subject matter jurisdiction

and properly dismissed plaintiff’s complaint. Since we find

that the trial court properly granted defendants’ motion to

dismiss because plaintiff failed to carry his burden of proving

that the administrative remedies available to him were

inadequate, and therefore failed to exhaust his administrative

remedies, we do not reach the issue of sovereign immunity.

Although plaintiff also argues that the trial court erred

in granting defendants’ motion for summary judgment, since the

trial court lacked subject matter jurisdiction, we need not

address plaintiff’s remaining arguments. The trial court

properly dismissed plaintiff’s complaint with prejudice. We

therefore affirm the order of the trial court.

Affirmed.

Judges ELMORE and STEPHENS concur.