in the Court of Appeals 15 November 2017.
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
Attorney General Joshua H. Stein, by Assistant Attorney
General Tamika L. Henderson, for the State.
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.
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
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
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, ...