University of North Carolina at Chapel Hill v. Feinstein

590 S.E.2d 401, 161 N.C. App. 700, 2003 N.C. App. LEXIS 2277
CourtCourt of Appeals of North Carolina
DecidedDecember 16, 2003
DocketNo. COA03-225
StatusPublished
Cited by9 cases

This text of 590 S.E.2d 401 (University of North Carolina at Chapel Hill v. Feinstein) 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.

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University of North Carolina at Chapel Hill v. Feinstein, 590 S.E.2d 401, 161 N.C. App. 700, 2003 N.C. App. LEXIS 2277 (N.C. Ct. App. 2003).

Opinion

TYSON, Judge.

The University of North Carolina at Chapel Hill (“UNC-CH”) and North Carolina State University (“NCSU”) (collectively, “petitioners”) appeal from the 12 November 2002 order holding that: (1) N.C. Gen. Stat. § 126-34.1 does not supersede N.C. Gen. Stat. § 126-35(c), and (2) that the Office of Administrative Hearings (“OAH”) has jurisdiction to determine whether petitioners had just cause to terminate the employment of Howard Gorman (“Gorman”), Pearl A. Wilkins (“Wilkins”), and Martin H. Feinstein (“Feinstein”) (collectively, “respondents”) through a reduction in force (“RIF”). We reverse and remand.

I. Background

Feinstein worked in the Academic Technology and Networks Department at UNC-CH. On 17 December 2001, Feinstein was dismissed from his position due to permanent reductions in State funding reductions to UNC-CH’s budget. UNC-CH’s Information Technology Division was ordered to reduce their budget by four percent for fiscal year 2001-2002. UNC-CH decided to eliminate Feinstein’s position. Feinstein’s RIF was upheld after review within the UNC-CH internal grievance process.

[702]*702Gorman worked as manager of UNC-CH’s Materials and Support Department. On 31 December 2001, Gorman’s position was also eliminated due to permanent reductions in State funding received by UNC-CH. In UNC-CH’s internal grievance process, Gorman claimed his notice did not conform to UNC-CH’s RIF policy. Chancellor James Moeser (“Chancellor Moeser”) found that the notice did not address the efforts made to avoid the elimination of Gorman’s position. Accordingly, Chancellor Moeser directed Roger Patterson, Associate Vice Chancellor for Finance, to address these issues and to give Gorman an additional thirty days’ pay with benefits, in order to satisfy UNC-CH’s RIF requirements.

Wilkins worked as the Customer Operations Manager in the Office of Communication Technologies at NCSU. Wilkins’s position was eliminated due to reductions of State funding received by NCSU. Wilkins appealed her layoff through NCSU’s grievance process. The review panel concluded that elimination of her position was appropriate. George Worsley, Vice Chancellor for Finance and Business, reviewed the panel’s findings, accepted the panel’s recommendation, and upheld Wilkins’s RIF.

Respondents, subsequently filed OAH petitions in 2002 for contested case hearings alleging improper RIFs. Petitioners moved for, but were denied, dismissal of OAH petitions. Petitioners filed Petitions for Writ of Supersedeas, Certiorari, and Prohibition to OAH in Wake County Superior Court. The trial court found that respondents were entitled to OAH hearings to determine whether petitioners had just cause to terminate respondents’ positions. Petitioners appeal.

II. Issue

Did the trial court err in upholding OAH of jurisdiction over RIF appeals on lack of just cause and procedural violations?

III. Jurisdiction of OAH

Petitioners contend that N.C. Gen. Stat. § 126-34.1 is the sole source of appellate rights for university employees covered by the State Personnel Act. They argue the statute excludes appeals to OAH of RIFs on grounds of lack of just cause and procedural violations. We agree.

The General Assembly expressly exempted the University of North Carolina from all provisions of the North Carolina [703]*703Administrative Procedure Act except those of Article 4. N.C. Gen. Stat. § 150B-1(f) (2001); see also Beauchesne v. University of N.C. at Chapel Hill, 125 N.C. App. 457, 468, 481 S.E.2d 685, 692 (1997). The rights of university employees to challenge any employment action in OAH must derive independently, from The State Personnel Act. N.C. Gen. Stat. § 126 (2001); see also Batten v. N.C. Dep’t of Correction, 326 N.C. 338, 342-43, 389 S.E.2d 35, 38 (1990), rev’d on other grounds, Empire Power Co. v. N.C. Dep’t of E.H.N.R., 337 N.C. 569, 447 S.E.2d 768, reh’g denied, 338 N.C. 314, 451 S.E.2d 634 (1994). OAH’s jurisdiction over appeals of university employee grievances exists solely within the limits established by the State Personnel Act. Empire Power Co., 337 N.C. at 579, 447 S.E.2d at 774.

In 1995, the General Assembly enacted N.C. Gen. Stat. § 126-34.1, which specifically defined which employee appeals constitute contested case issues OAH may hear. N.C. Gen. Stat. § 126-34.1(a) (2001) explicitly states that university employees may file in OAH “only as to the following personnel actions or issues.” N.C. Gen. Stat. § 126-34.1(e) states that “[a]ny issue for which appeal to the State Personnel Commission through the filing of a contested case . . . [that] has not been specifically authorized by this section shall not be grounds for a contested case under Chapter 126.” N.C. Gen. Stat. § 126-34.1(e) (2001) (emphasis supplied).

OAH’s jurisdiction over state employee RIFs are specifically limited to two narrowly defined circumstances:

(2)(b) Demotion, reduction in force, or termination of an employee in retaliation for the employee’s opposition to alleged discrimination ....
(4) Denial of the veteran’s preference ... or in connection with a reduction in force, for an eligible veteran ....

N.C. Gen. Stat. § 126-34.1 (2001). Respondents do not fall into either one of these two defined circumstances.

A. Lack of Just Cause

Respondents claim that they were separated from State employment without just cause and that N.C. Gen. Stat. § 126-34.1(a)(1) provides them with a basis for appealing their RIFs. They assert N.C. Gen. Stat. § 126-34.1(a)(1) specifically refers to N.C. Gen. Stat. § 126-35, which defines actions based on just cause.

[704]*704N.C. Gen. Stat. § 126-34.1(a)(l) specifically refers to “dismissal, demotion, or suspension” without just cause but does not mention RIFs for lack of just cause as a basis for appealing a RIF. RIFs are specifically referred to only twice in the statute. The General Assembly clearly stated in N.C. Gen. Stat. § 126-34.1 that a contested case that “has not been specifically authorized by this section shall not be grounds for a contested case under Chapter 126.” N.C. Gen. Stat. § 126-34.1(e) (2001) (emphasis supplied).

A fundamental rule of statutory interpretation requires the plain meaning of the statute to control its applicability. Campbell v. Church, 298 N.C. 476, 484, 259 S.E.2d 558, 564 (1979). A statute that provides a clear enumeration of its inclusion is read to exclude what the General Assembly did not enumerate. See Dunn v. N.C. Dep’t of Human Resources, 124 N.C. App. 158, 161, 476 S.E.2d 383, 385 (1996); see also Morrison v. Sears, Roebuck & Co., 319 N.C.

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University of North Carolina v. Feinstein
590 S.E.2d 401 (Court of Appeals of North Carolina, 2003)

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Bluebook (online)
590 S.E.2d 401, 161 N.C. App. 700, 2003 N.C. App. LEXIS 2277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/university-of-north-carolina-at-chapel-hill-v-feinstein-ncctapp-2003.