STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 10 OSP 0905
VLADIMIR ZAYTSEV,)
Petitioner,)
)
v.) DECISION
) by Summary Judgment
NORTH CAROLINA DEPARTMENT)
OF ENVIRONMENT AND )
NATURAL RESOURCES,)
Respondent.)
THIS MATTER is before the undersigned Administrative Law Judge pursuant to the Petition filed by Petitioner and Respondent’s Motion for Summary Judgment.
FINDINGS OF FACT
1.Petitioner is a State employee, employed with Respondent, North Carolina Department of Environment and Natural Resources (DENR). The Petition for a Contested Case Hearing alleges Respondent “deprived Petitioner of property, acted erroneously, failed to act as required by law or rule, acted arbitrarily and capriciously, or abused its discretion, and/or substantially prejudiced Petitioner’s rights, by failing to remove inaccurate and misleading information from Petitioner’s personnel file in violation of N.C. Gen. Stat.§ 126-25.”
2.On or about November 16, 2009, Respondent issued a Written Warning to Petitioner for job performance. On or about November 25, 2009, Petitioner signed that he acknowledged receipt of the Written Warning and requested removal of the Written Warning from his personnel file. On or about December 2, 2009 Petitioner filed a formal grievance with DENR. On or about January 27, 2010 DENR conducted a Step II Appeal Hearing; and on or about February 3, 2010 the findings were published. On or about February 9, 2010, the DENR Secretary issued a Final Agency Decision upholding the Written Warning.
3.On or about January 14, 2010 Petitioner filed a Charge of Discrimination with the Civil Rights Division of the Office of Administrative Hearings (charge also registered with the US Equal Employment Opportunity Commission ) based upon alleged discrimination due to national origin.
4.On or about March 4, 2010, Petitioner filed a Petition for a Contested Case Hearing seeking to remove inaccurate and misleading information from his personnel file.
5.On or about April 13, 2010 Respondent filed a Motion to Dismiss citing Petitioner’s failure to serve Respondent’s process agent with the Petitionfor a Contested Case Hearing, which was denied.
6.On or about July 22, 2010, Petitioner requested a Stay of his Contested Case Hearing until completion of his Discrimination Complaint with the Civil Rights Division of the Office of Administrative Hearings which was granted by Order dated July 26, 2010.
7.On January 24, 2011, the EEOC District Office in Charlotte, North Carolina issued a Dismissal and Notice of Rights, which formally closed its file on Petitioner’s allegations, adopting the findings of the Office of Administrative Hearings’ Civil Rights Division.
8.On or about April 4, 2011, Petitioner filed a Motion to Lift the Stay in this case which was granted.
9.On or about April 14, 2011, Respondent filed a Motion for Summary Judgment with Petitioner filing a Response to Respondent’s Motion on or about April 21, 2011. A Motions Hearing was held on June 16, 2011.
BASED UPON the foregoing findings of fact and all submitted documents in this file as well as arguments presented by the Petitioner and Respondent, the undersigned Administrative Law Judge enters the following:
CONCLUSIONS OF LAW
1.N.C. Gen. Stat. § 126-34.1 enumerates a list of grounds for which a State employee may file a contested case with the Office of Administrative Hearings(OAH). N.C. Gen. Stat. § 126-34.1(e) provides that “[a]ny issue for which appeal . . . through the filing of a contested case under Article 3 of Chapter 150B of the General Statutes has not been specifically authorized by this section shall not be grounds for a contested case under Chapter 126.”
2.To state a claim within the subject matter jurisdiction of the OAH, Petitioner must satisfy three requirements: (a) N.C.G.S. § 126-34.1 must apply to Petitioner; (b) the claims he alleges must make out a specific cause of action authorized in N.C.G.S. § 126-34.1; and (c) he must satisfy any procedural prerequisites to the exercise of OAH subject matter jurisdiction found in Chapters 126 and 150B. Lewis v. N.C. Dept. of Human Resources, 92 N.C. App. 737, 375 S.E.2d 712 (1989). Petitioner fails to satisfy these requirements.
3.N.C. Gen. Stat. § 126-34.1 does not provide that a State employee may appeal a Written Warning to the Office of Administrative Hearings. N.C. Gen. Stat. § 126-34.1 does not provide that a State employee may appeal a Work Plan, the addition, deletion or alteration of any Key Responsibilities or Dimensions within the Plan, ora Performance Appraisal or a Performance Improvement Plan to the Office of Administrative Hearings.
4.Petitioner asserts he should be able to come forward to seek removal of false and misleading information from his personnel file. However, while N.C.G.S. § 126-25 is applicable to Petitioner, the information Petitioner seeks to be removed is derived from and concerns information surrounding Petitioner’s Written Warning, and his Work Plan which are not causes “housed” in G.S. 126-34.1 or G.S. 126-35. In other words, Petitioner may not “backdoor” a hearing on his Written Warning based on job performance through N.C.G.S. § 126-25.
5.Administrative tribunals only have such authority as is properly conferred upon them by the Legislature. State ex rel. Utilities Comm’n v. Carolina Utility Customers Ass’n, Inc., 336 N.C. 657, 446 S.E.2d 332 (1994); Meads v. N.C. Dep’t of Agriculture, 349 N.C. 656, 509 S.E.2d 165 (1998).
6.Respondent did not seek dismissal testing the sufficiency of the complaint but rather filed a Motion for Summary Judgment. As both parties have presented extensive materials outside the complaint which have been considered, the Undersigned is without authority to convert the Summary Judgment Motion to a Motion to Dismiss.
7.To support a motion for summary judgment, Respondent has the burden of showing either that plaintiff cannot produce evidence to support an essential element of his claim, an essential element of plaintiff's claim does not exist, or plaintiff cannot overcome an affirmative defense that would defeat his claim. SeeEvans v. Appert, 91 N.C. App. 362, 372 S.E.2d 94, disc. review denied, 323 N.C. 623, 374 S.E.2d 584 (1988). There are no genuine issues of material fact regarding the jurisdiction of the Office of Administrative Hearings over matters concerning agencies’ written warnings and Respondent is entitled to judgment in its favor as a matter of law.
BASED UPON the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes the following:
DECISION
The Undersigned hereby finds proper authoritative support of the Findings of Fact and Conclusions of Law noted above. Respondent’s Motion for Summary Judgmentis granted. The N.C. Department of Environment and Natural Resources has not exceeded its statutory authority, acted erroneously, failed to use proper procedure, or failed to act as required by law and rule.
NOTICE
The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the final decision. N. C. Gen. Stat. § 150B-36(a).
In accordance with N.C. Gen. Stat. § 150B-36 the agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.
The agency that will make the final decision in this case is the North Carolina State Personnel Commission. State Personnel Commission procedures and time frames regarding appeal to the Commission are in accordance with Appeal to Commission, Section 0.0400 et seq. of Title 25, Chapter 1, SubChapter B of the North Carolina Administrative Code (25 NCAC 01B .0400 et seq.).
IT IS SO ORDERED.
This the 11th day of July, 2011.
______
Augustus B. Elkins II
Administrative Law Judge
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