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Brown v. North Carolina Department of Public Safety

Court of Appeals of North Carolina

November 21, 2017

LENTON C. BROWN, Petitioner
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, an agency of the State of North Carolina, and DIVISION OF ADULT CORRECTION AND JUVENILE JUSTICE, a subunit contained within the North Carolina Department of Public Safety, Respondent

          Heard in the Court of Appeals 8 August 2017.

         Appeal by petitioner from final decision and order entered 2 September 2016 by Administrative Law Judge Melissa Owens Lassiter in the Pitt County No. 16 OSP 6600 Office of Administrative Hearings.

          The Webster Law Firm, by Walter S. Webster, for petitioner-appellant.

          Attorney General Joshua H. Stein, by Assistant Attorney General Tamika L. Henderson, for respondent-appellee.

          CALABRIA, JUDGE

         Lenton C. Brown ("petitioner") appeals from a final decision and order entered in the Office of Administrative Hearings ("OAH") dismissing his contested case for lack of subject matter jurisdiction. We affirm.

         I. Background

         Petitioner was previously employed as a correctional officer at Maury Correctional Institution in Greene County, North Carolina. On 10 December 2013, petitioner filed a complaint in Wake County Superior Court against his employer, the North Carolina Department of Public Safety and its Division of Adult Correction and Juvenile Justice (collectively, "respondent"). Petitioner alleged that on 11 December 2012, respondent denied petitioner a promotion in retaliation for his reporting other officers' use of excessive force against an inmate, in violation of the Whistleblower Act. See N.C. Gen. Stat. § 126-84, et seq. (2015).

         On 6 July 2015, petitioner voluntarily dismissed the Wake County Superior Court action. However, on 27 June 2016, petitioner filed a petition for a contested case hearing in the Pitt County OAH, alleging nearly identical claims to those he asserted in the Wake County Superior Court action. On 12 July 2016, respondent filed a motion to dismiss petitioner's action pursuant to the doctrine of sovereign immunity; N.C. Gen. Stat. § 126-34.02; and Rules 12(b)(1)-(3) of the North Carolina Rules of Civil Procedure. Respondent argued that, as a career State employee, petitioner was required to file his Whistleblower claim in the OAH within 30 days following the denial of his promotion, and his failure to do so divested the OAH of subject matter jurisdiction.

         On 12 July 2016, the Administrative Law Judge ("ALJ") sent petitioner a "Request for Response to Motion." The ALJ ordered petitioner to file a written response to respondent's motion for dismissal "on or before" 22 July 2016, if he "desire[d] objections to be considered" prior to the ALJ's ruling. Petitioner did not respond or file any written objections to respondent's motion.

         On 2 September 2016, the OAH entered a "Final Decision Order of Dismissal." The OAH found, inter alia, that

2. At all relevant times, Petitioner was a career state employee subject to Article 8 of N.C. Gen. Stat. § 126.
3. On August 21, 2013, the Governor signed House Bill ("HB") 834 into law. HB 834 revised N.C. Gen. Stat. § 126, known as the State Personnel Act, by renaming it the "North Carolina Human Resources Act, " and required that a state employee subject to Article 8 of Chapter 126 bring a claim related to violations of the Whistleblower Act in the Office of Administrative Hearings (OAH).
4.Before passage of HB 834, a career state employee, like the Petitioner, could bring a claim for violations of the Whistleblower Act by either filing a contested case petition in OAH or in Superior ...

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