Heard in the Court of Appeals: August 13, 2014.
Appeal by plaintiff from order entered 8 November
2013 by Judge Lucy Inman in Cumberland County Superior Court, No. 13 CVS 2946.
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. Judges ELMORE and STEPHENS concur.
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 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 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.
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 ...