STATE OF NORTH CAROLINA IN THE OFFICE

OF ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 01 OSP 0639

LEON LEWIS, JR., )

Petitioner, )

)

v. ) DECISION

) FOR SUMMARY JUDGMENT

N.C. SCHOOL OF SCIENCE & MATH, )

Respondent. )

This matter came before the undersigned on Respondent's motion to dismiss, or in the alternative, for summary judgment. Having considered the record, the undersigned makes the following:

SUMMARY OF UNCONTESTED FACTS

1. On 9 April 2001, Leon Lewis, Jr., filed a petition for a contested case hearing in which he alleged race discrimination and "illegal job posting" in connection with a position of Chief Information Officer at Respondent, N.C. School of Science and Math.

2. On 10 May, Respondent filed a motion to dismiss pursuant to Rules 12(b)(1), (2) & (6), N.C.G.S. § 1A-1, or in the alternative, a motion for judgment on the pleadings pursuant to Rule 12(c), N.C.G.S. § 1A-1, or in the alternative, for summary judgment pursuant to Rule 56, N.C.G.S. § 1A-1. Respondent supported this motion by filing a memorandum and an affidavit of Delacy Bradsher, Respondent's head of Human Resources. On 15 May, Respondent filed an amended brief.


-5-

3. The Chief Information Officer position at issue in Mr. Lewis' petition is classified as "EPA," or exempt from the State Personnel Act. Bradsher Aff. ¶¶ 4 & 5, and Exhibit 1 & 2.

4. Respondent posted the vacancy on its staff list serve, its Human Resources web page and Human Resources bulletin boards, at colleges and universities across the state, at JOBTRAK.com, and in the Durham Herald-Sun Newspaper. Bradsher Aff. ¶ 6. Among the requirements for the position were "eight years information technology management experience." Ex. 1.

5. Mr. Lewis' application indicates that he did not have eight years of relevant experience, but only some twenty-one months of relevant experience. Bradsher Aff. ¶ 10 and Ex. 3. The candidate recommended for the position had a Ph.D. in chemistry and more than ten years of directly relevant experience. Bradsher Aff. ¶¶ 5 & 11, and Ex. 2.

6. During the internal hearing of Mr. Lewis' grievance, Mr. Lewis stated that he no longer alleged race discrimination. Bradsher Aff. ¶¶ 14 & 15.

7. On 23 May, the undersigned entered an order requiring Mr. Lewis to respond to Respondent's motion on or before 4 June. Mr. Lewis did not respond on or before 4 June, and as of the date of this recommended decision, he still has not responded.

CONCLUSIONS OF LAW

1. An action may be dismissed for absence of jurisdiction or for failure to state a claim. Rules 12(b)(1), (2) and (6), N.C.G.S. § 1A-1 (1999).[1] When jurisdiction is challenged under Rules 12(b)(1) and (2), the Petitioner, as the party seeking to invoke jurisdiction, has the burden of establishing that jurisdiction is proper. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) ("[i]t is elementary that the burden is on the party asserting jurisdiction to demonstrate that jurisdiction does, in fact, exist") (citing Thomson v. Gaskill, 315 U.S. 442, 446, 86 L. Ed. 951, 62 S. Ct. 673 (1942)). And in determining whether jurisdiction, matters outside the pleadings may be considered without converting a motion to dismiss into one for summary judgment. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).

2. When considering a motion under Rule 12(b)(6), Petitioner's factual allegations must be treated as true, but the Court may not give such deference to Petitioner's legal conclusions. Jackson v. Bumgardner, 318 N.C. 172, 174-75, 347 S.E.2d 743, 745 (1986).

3. Summary judgment is proper when there is no genuine issue of material fact and the evidence in the record shows that Respondent is entitled to judgment as a matter of law. N.C.R. Civ. P. 56(c), N.C.G.S. § 1A-1; Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). When Respondent, by its motion, put Mr. Lewis on notice that there are no genuine issues of material fact on issues on which he bears the burden of proof, Mr. Lewis was required to come forward with evidence sufficient to show a genuine issue of material fact. Rule 56(e). Mr. Lewis has not done so.

4. Respondent's Chief Information Officer serves in a position that is exempt from the State Personnel Act. Bradsher Aff. ¶¶ 4 & 5, Ex. 1 & 2. The State Personnel Act allows this. Compare N.C.G.S. §§ 126-5(b)(2) (defining "exempt managerial position" as one with "significant . . . programmatic responsibility"), and -5(c1)(11) (exempting from the just cause provisions of the SPA "North Carolina School of Science and Mathematics' employees whose salaries are fixed in accordance with the provisions of . . . G.S. § 116-235(c)(2)"), with N.C.G.S. § 116-235(c)(2) (allowing School's Board of Trustees to select and hire "senior . . . administrative officers" who "shall be exempt from the State Personnel Act") (emphasis added).

5. Logically, there can be no jurisdiction under the State Personnel Act over a petition challenging a decision to hire into a position that is not subject to the State Personnel Act. Indeed, because the position at issue is not subject to the State Personnel Act, the State Personnel Commission has no authority over that position, and cannot order the relief that Mr. Lewis seeks. As a result, this petition should be dismissed for failure to state a claim for which relief may be granted.

6. Because the position is exempt from the State Personnel Act, Respondent was not required to post the vacancy in accordance with N.C.G.S. § 126-7.1. But even if N.C.G.S. § 126-7.1 did apply to the position at issue, Respondent, by its motion, established that it satisfied the statute's requirements that vacancies be posted in the personnel office and in the particular work unit of the agency. As a result, Respondent is entitled to judgment as a matter of law on this claim.

7. In her affidavit, Ms. Bradsher averred that Mr. Lewis, during his internal grievance, abandoned his race discrimination claim. Again, Mr. Lewis has not responded to that affidavit. Thus, it appears that Mr. Lewis has abandoned his race discrimination claim.

8. But even if Petitioner has not abandoned that claim, Respondent is entitled to judgment as a matter of law. Discrimination claims under N.C. Gen. Stat. § 126-36 are determined in accordance with the evidentiary standards and principles of law governing race discrimination claims under Title VII of the Civil Rights Act of 1991, as amended, 42 U.S.C. §§ 2000e, et seq. North Carolina Dep’t of Correction v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983). In such claims, the employee has the continuing and ultimate burden of proof to show, by the preponderance of the evidence, that the employer intentionally discriminated against him on an illegal basis. See, e.g., Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509-10, 113 S. Ct. 2742, 125 L. Ed. 2d 407, 418-19 (1993); North Carolina Dep’t of Correction v. Hodge, 99 N.C. App. 602, 606, 394 S.E.2d 285 (1990); Gibson, 308 N.C. at 138-39, 301 S.E.2d at 83.


-5-

9. In the context of failure to hire, a Petitioner makes out a prima facie case by showing that (1) he is a member of a protected class; (2) he applied and was qualified for a job for which the employer was seeking applicants; and (3) he was rejected in favor of a person who is not a member of the protected minority under circumstances giving rise to an inference of unlawful discrimination. Brown v. McLean, 159 F.3d 898, 902 (4th Cir. 1998), cert. denied, 526 U.S. 199, 119 S. Ct. 1577, 143 L. Ed. 2d 672 (1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)); Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994); Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 910 n.1 (4th Cir. 1989).

10. Given that Mr. Lewis' application makes plain that he did not have the eight years of experience that was required (but only some twenty-one months of relevant experience), he cannot establish that he was qualified for the job; as a result, Mr. Lewis cannot make out a prima facie case.


-5-

11. But even assuming for the sake of argument that Mr. Lewis can make out a prima facie case of discrimination, Respondent has now put forth legitimate reasons for the decision not to rehire him: he had less experience than the recommended candidate, and he did not have the eight years experience that was required by the job post. Once Respondent articulated legitimate reasons for the decision which Mr. Lewis alleged to be discriminatory, the enquiry moves to "a new level of specificity." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981); accord St. Mary's Honor Center, 509 U.S. at 507, 113 S. Ct. at 2747, 125 L. Ed. 2d at 418-19. To avoid summary judgment, Mr. Lewis was required to prove first, that all the proffered reasons are false, and second, that the real reason he was dismissed or not hired was discrimination. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 120 S. Ct. 2097, 210-07, 147 L. Ed. 2d 105 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509-10, 113 S. Ct. 2742, 125 L. Ed. 2d 407, 418-19 (1993). This last requirement is subject to a strict causation test. It would not be enough for Mr. Lewis to show that he was of a certain race and was not promoted; rather, he must prove "that []he was not promoted because of" his race. Autry v. N.C. Dep't of Human Resources, 820 F. 2d 1384, 1386 (4th Cir. 1987) (emphasis in original) (citing Burdine); accord Holder v. City of Raleigh, 867 F.2d 823, 827 (4th Cir. 1989).

12. Mr. Lewis has not made any attempt to make the required showings. Indeed, Respondent's motion stands unopposed. There is no genuine issue as to any material fact and Respondent is entitled to judgment as a matter of law.

DECISION

That Respondent's motion for summary judgment be ALLOWED.

ORDER

It is hereby ordered that the State Personnel Commission, as the agency making the final decision in this case, serve a copy of that final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with N.C. Gen Stat. § 150B-36(b).

NOTICE

The agency making the final decision in this case is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a). The agency is required by N.C. Gen Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties or their attorneys of record and to the Office of Administrative Hearings.

This 17th day of August, 2001.

_______________________________________

James L. Conner II

Administrative Law Judge

[1] The North Carolina Supreme Court has not decided whether sovereign immunity involves personal or subject matter jurisdiction. See Teachy v. Coble Dairies, Inc., 306 N.C. 324, 327, 293 S.E.2d 182, 184 (1982), and Colombo v. Dorrity, 115 N.C. App. 81, 83, 443 S.E.2d 752, 754, disc. rev. denied, 337 N.C. 689, 448 S.E.2d 517 (1994). However, a number of decisions of the Court of Appeals have suggested that sovereign immunity is a matter of personal jurisdiction. See Hawkins v. State, 117 N.C. App. 615, 622, 453 S.E.2d 233, 237, disc. rev. denied, 342 N.C. 188, 463 S.E.2d 79 (1995). Accordingly, Respondent challenged both personal and subject matter jurisdiction based on sovereign immunity.