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Vincoli v. N.C. Department of Public Safety

Court of Appeals of North Carolina

July 17, 2018

JOSEPH VINCOLI, Petitioner,
v.
N.C. DEPARTMENT OF PUBLIC SAFETY, Respondent.

          Heard in the Court of Appeals 15 November 2017.

          Appeal by petitioner from final decision dismissal orders entered on or about 30 March 2017 by Administrative Law Judge J. Randolph Ward in the Office of Administrative Hearings, No. 15 OSP 07944

          Crawford & Crawford, PLLC, Robert O. Crawford III, for petitioner-appellant.

          Attorney General Joshua H. Stein, by Assistant Attorney General Tamika L. Henderson, for the State.

          STROUD, JUDGE

         Petitioner appeals a final order dismissing his petition for a contested case hearing under North Carolina General Statute § 126-5(h). Because petitioner failed to appeal from the 10 April 2014 Office of Administrative Hearings order which dismissed his first petition, we affirm the dismissal of this claim. We also affirm the dismissal of petitioner's whistleblower claim because his prior dismissal of the same claim under North Carolina General Statute § 1A-1, Rule 41(a) was in Superior Court, so he cannot refile his claim before the Office of Administrative Hearings.

          I. Background

         The underlying facts of this case are relatively simple but the procedural background is extraordinarily complex. Much of this background is stated in Vincoli v. State, __ N.C.App. __, ___, 792 S.E.2d 813 (2016) ("Vincoli I"). For purposes of this appeal some of the procedural background regarding Vincoli's first petition for a contested case hearing as recited in Vincoli I is useful:

In 2010, Vincoli was hired by the North Carolina Department of Public Safety ("DPS") into a position subject to the NCHRA and subsequently attained the status of a career State employee. A career State employee is afforded certain protections provided by the NCHRA, such as the right not to be disciplined except for just cause. However, the NCHRA also grants the Governor the authority to designate positions within departments of state government, including DPS, as policymaking or managerial exempt from the provisions of the NCHRA.
Until 2013, a career State employee whose non-exempt position was subsequently designated as exempt was entitled by N.C. Gen. Stat. § 126-34.1(c) to a contested case hearing before OAH to challenge the propriety of the designation. . . .
On 21 August 2013, the Governor signed into law House Bill 834, which substantially revised the NCHRA. A career state employee's ability to challenge an exempt designation pursuant to the previous process changed with the passage of An Act Enhancing the Effectiveness and Efficiency of State Government by Modernizing the State's System of Human Resource Management and By Providing Flexibility for Executive Branch Reorganization and Restructuring. The Act, inter alia, amended the Employee Grievance section of the NCHRA by repealing N.C. Gen. Stat. § 126-34.1 and replacing it with N.C. Gen. Stat. § 126-34.02, which omitted an employee's action to challenge an exempt designation as grounds for a contested case hearing and, in effect, eliminated a career state employee's opportunity to a contested case hearing before OAH on this issue.
On 1 October 2013, Vincoli, who was employed by DPS as a Special Assistant to the Secretary for Inmate Services and who had attained career status, was notified that the Governor had declared his position as managerial exempt. Approximately two months later, on 6 December 2013, Vincoli received a letter terminating him from employment on the stated grounds that a change in agency staff is appropriate at this time.
. . . Vincoli filed an internal grievance with DPS challenging the designation of his position as exempt. In response, Vincoli received a letter from DPS refusing to entertain his grievance on the basis that he was not eligible for the internal appeal process as a managerial exempt employee. Subsequently, Vincoli filed a grievance in the North Carolina Office of State Human Resources ("OSHR"), which refused to entertain Vincoli's grievance, concluding that: In this particular case and on these particular facts, OSHR believes that there is no personal or subject matter jurisdiction for any claim by Vincoli for a just cause claim against DPS in either the agency grievance process or OAH. As a result, neither DPS nor OSHR issued a final agency decision on the matter.
On 16 January 2014, Vincoli filed a petition for a contested case hearing with OAH, challenging his exemption and subsequent termination without just cause. Specifically, Vincoli asserted that
his designation as managerial exempt was in fact used to disguise a disciplinary dismissal without just cause that would fall within the scope of the State Personnel Act's protections against dismissal without just cause. DPS' action was a sham, ...

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