State of North Carolina s11

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF HALIFAX 02 OSP 0270

WILLIAM L. JOHNSON, ) ) FINAL DECISION Petitioner, ) ORDER OF DISMISSAL (in part) ) v. ) ) CALEDONIA FARMS ENTERPRISE ) DECISION CALEDONIA PRISON FARM, ) by SUMMARY JUDGMENT (in part) Respondent. ) ______

THIS CAUSE comes on for consideration pursuant to Respondent’s Motion for Summary Judgment and Dismissal filed in the Office of Administrative Hearings. Both parties have had the opportunity to present matters before the Administrative Law Judge.

After reviewing the record proper including the Respondent’s Motion, and all other items submitted by both the Respondent and the Petitioner, the Undersigned hereby makes the following ruling based on the standards of review for Motions for Summary Judgment and Dismissal.

Dismissal-Standard of Review

Dismissal is appropriate when the face of the complaint clearly reveals the existence of a meritorious affirmative defense. See Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996). When reviewing a motion to dismiss, the court assumes the facts alleged in the complaint (Petition) are true, see McNair v. Lend Lease Trucks, Inc., 95 F.3d 325, 327 (4th Cir. 1996), and construes the allegations in the light most favorable to the pleader ( in this instance the Petitioner). See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Additionally, when reviewing a pro se complaint, the court examines carefully the plaintiff’s (Petitioner’s) factual allegations, no matter how inartfully pleaded, to determine whether they could provide a basis for relief. See Haines v. Kerner, 404 U.S. 519-21 (1972).

Summary Judgment-Standard of Review

Summary judgment is designed to eliminate formal trials where only questions of law are involved. Summary judgment should be used cautiously, with due regard to its purposes and a cautious observance of its requirements. See Brown v. Greene, 98 N.C.App. 377, 390 S.E.2d 695 (1990). The standard of review is whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. See Kessing v. National

1 Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). To entitle one to summary judgment, the movant must conclusively establish a legal bar to the nonmovant’s claim or complete defense to that claim. See Virginia Elec. and Power Co. v. Tillett, 80 N.C.App. 383, 385, 343 S.E.2d 188, 190-91, cert denied, 317 N.C. 715, 347 S.E.2d 457 (1986). The burden of establishing a lack of any legally triable issue resides with the movant. See Pembee Mfg. Corp. v. Cape Fear Constr. Co. 313 N.C. 488, 329 S.E.2d 350 (1985). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. Beaver v. Hancock, 72 N.C. App. 306, 324 S.E.2d 294 (1985). This obligation is particularly strong when the non- moving party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

As observed in Nelson v. Ferris, 136 F. Supp. 2d 703, 712 (E.D. Mich. 2001), “[t]hree 1986 United States Supreme Court cases -- Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) -- ushered in a ‘new era’ in the standards of review for a summary judgment motion. These cases, in the aggregate, lowered the movant’s burden on a summary judgment motion. Summary judgment is proper “if the pleadings, depositions, answer to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that [the moving] party is entitled to a judgment as a matter of law.” Rule 56(c), N.C.G.S. § 1A-1. Moreover, the non-moving plaintiff must present significant probative evidence tending to support the petition and from which a reasonable fact finder could find for the non-movant. Zawacki v. City of Colorado Springs, 759 F.Supp. 655 (D. Colo. 1991).

PROCEDURAL FINDINGS

1. A Petition for Contested Case Hearing in the above-captioned matter was filed in the Office of Administrative Hearings in February 2002. A preliminary motion and responses thereafter were filed and all preliminary matters have now been ruled on and discovery completed.

2. Respondent’s Motion for Summary Judgment was filed on June 6, 2002. Respondent filed a half page response on June 18, 2002.

STATUTES AND RULES INVOLVED

Chapters 126 and 150B of the North Carolina General Statutes; Rule 56 of the North Carolina Rules of Civil Procedure.

BASED UPON the record, the Undersigned makes the following:

FINDINGS OF FACT

2 1. At all relevant times, Petitioner was an employee of Respondent. Petitioner filed the present Petition in the Office of Administrative Hearings (OAH) in February 2002. The Petition alleges that Petitioner was denied a salary increase without just cause and was discriminated against/ retaliated against based on creed.

2. The jurisdiction of the Office of Administrative Hearings (OAH) over the appeals of State employee grievances derives solely from the State Personnel Act, Chapter 126. See Dunn v. N.C. Dep’t of Human Resources, 126 N.C. App. 158, 160-61, 476 S.E.2d 383 (1996) (General Assembly has given the Commission jurisdiction to resolve only those issues that are specifically defined as contested case issues in Chapter 126).

3. N.C.G.S. § 126-34 conditions the right to appeal to the State Personnel Commission on the employee’s having first exhausted his agency’s grievance process (unless unlawful discrimination is alleged). N.C.G.S. § 126-37(a) further provides that no grievance may be appealed unless the employee has complied with N.C.G.S. 126-34.

4. Petitioner has not used the Respondent’s grievance avenues to address his claim. Respondent contends, among other defenses, that as a matter of law, failure to exhaust administrative remedies removes this matter from the subject matter jurisdiction of the Office of Administrative Hearings.

5. In his response Petitioner states that on other occasions he has tried to resolve issues at a lower level but presents no evidence he has followed the grievance procedure in this matter.

6. Petitioner fails to provide any facts in his Petition or Prehearing Statement or any other document in the record indicating the particulars of his grounds of discrimination based on creed. Further, though given ample opportunity to provide any offers of proof to set forth even a cursory prima facie showing of discrimination based on creed in his response to Respondent’s Motion for Summary Judgment and Dismissal, Petitioner fails to do so.

7. In response to Interrogatories, Petitioner states that the farm manager denied him a pay increase out of retaliation because he had raised questions and concerns about the use and misuse of policy. Petitioner felt his pay increase was held back because his beliefs and principles led him to occasionally raise serious questions concerning the farm manager. In his response to Respondent’s motion, Petitioner felt creed was his expression in any form of his beliefs and principles and that his beliefs and principles were his religion.

8. There appears to be no North Carolina legislative guidance on the specific definition to be applied to the term “creed”, that is, whether creed may include political, sociological and philosophical beliefs as well as religious ones. A general rule of statutory construction is that words should be construed consistent with their commonly understood meaning. An analysis of the meaning of the term “creed” begins by considering the word as set out in various dictionaries. The American Heritage Dictionary (Second College Edition) defines creed as a formal statement of religious belief or confession of faith. Secondarily it is a system

3 of belief, principles or opinions. Black’s Law Dictionary defines creed as a confession of articles of faith or a system of religious belief. Ballentine’s Law Dictionary defines “creed” exclusively in religious terms as a formal declaration of religious belief. Webster’s Dictionary contains multiple definitions of “creed”, all of which except the last one define creed within the context of religion. Webster’s and American Heritage’s almost exclusively religious definition of creed is consistent with that found in other dictionaries (Oxford English, Random House College, and Funk and Wagnalls New Standard). Indeed “creed” is commonly understood to mean religion and religious beliefs.

9. Another clue as to legislative intent regarding “creed” appears to be found (or rather not found) in the Equal Employment Practices Act (N.C. Gen. Stat. § 143-422.2) where under legislative declaration it is stated that it is “the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.” Creed is not listed in the Equal Employment Practices Act (though it is listed in N. C. Gen. Stat. § 126-36) indicating the Legislature’s seemingly intent (when stating its policy declarations) to make creed synonymous with religion and not holding that creed may refer to any beliefs, be they economic, political or sociological.

10. Further case law from other states (New York, New Jersey, Wisconsin, Washington, Minnesota) does not include more in the definition of creed than religion and religious based beliefs. Thus existing case law from other states, the North Carolina Equal Employment Practices Act and the “common meaning rule” of statutory construction, all support the definition of “creed” as only extending to religion and religious beliefs, and not to any belief on any subject.

BASED UPON the foregoing Findings of Fact and standards of review, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. Petitioner failed to exhaust his agency’s grievance process with respect to his claim of being denied a salary increase without just cause prior to filing the petition in the OAH. Therefore, under N.C.G.S. §§ 126-34 and 126-37(a), the OAH has no jurisdiction over Petitioner’s claims. See Lewis v. N.C. Dep‘t of Human Resources, 92 N.C. App. 737, 739, 375 S.E.2d 712 (1989) (“The right to appeal to an administrative agency is granted by statute, and compliance with statutory provisions is necessary to sustain the appeal.”).

2. By Petitioner failing to exhaust administrative remedies he is unable to demonstrate that he proceeds from a final agency decision. Petitioner did not file his unjust cause claim within thirty days of any alleged personnel action from which he has a final decision through the agency in his allegations as required by N.C. Gen. Stat. § 126-38 and, as such, no subject matter jurisdiction is established over the Respondent in that matter.

4 3. The Respondent is entitled to a dismissal of the claim of salary denial without just cause because of the Petitioner’s failure to timely file his Petition pursuant to N.C. GEN. STAT. § 126-38. The North Carolina Office of Administrative Hearings lacks subject matter jurisdiction to hear that part of the case pursuant to N.C. GEN. STAT. § 1A-1, Rule 12(b)(1), (2) and (6) of the North Carolina Rules of Civil Procedure.

4. N. C. Gen. Stat. § 126-34.1 provides that an employee may file an action directly with OAH when the allegations involve discrimination in the workplace based on age, sex, race, color, national origin, religion, creed or handicapping condition. N. C. Gen. Stat. § 126-36 authorizes an employee to bring an action that alleges discrimination in the workplace based on age, sex, race, color, national origin, religion, creed or handicapping condition and for alleged retaliation based on opposition to such discrimination. In applying North Carolina discrimination law, the Undersigned is guided not only by North Carolina law and cases but also by federal employment discrimination decisions, which are applicable and authoritative.

5. It is well established that the burden is on the employment discrimination plaintiff to establish a prima facie case of discrimination at hearing and as the non-moving plaintiff in a motion for summary judgment, Petitioner must present significant probative evidence tending to support the petition and from which a reasonable fact finder could find for the non-movant. The Petitioner was given ample opportunity to make an offer of proof and the Undersigned would consider the Petitioner’s offer of proof as true for the purpose of ruling on the Respondent’s Motion. The undersigned ALJ concludes that the Petitioner failed to set forth sufficient probative facts or evidence to support his claim that he has been subjected to discrimination by the Respondent based on creed or that he has been retaliated against by the Respondent for his opposition to discrimination based on creed as alleged in his Petition.

6. Petitioner sets forth nothing to show that Respondent took any action that was discriminatory or retaliatory based on Petitioner’s “creed” involving and extending to religion and religious beliefs. Petitioner did not sustain his rebuttal burden on summary judgment. Petitioner cannot establish the essential elements of his claim of discrimination based on creed and by law there exists no genuine issues of material fact.

7. In accord with Painter v. Wake County Bd of Ed., 217 S.E.2d 650, 288 N.C. 165 (1975), absent evidence to the contrary, it will always be presumed that “public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law. Every reasonable intendment will be made in support of the presumption.” See also Huntley v. Potter, 122 S.E.2d 681, 255 N.C. 619.

BASED UPON the foregoing Findings of Fact and Conclusions of Law, the Undersigned enters the following:

FINAL DECISION

NOW, THEREFORE, based on the foregoing, the Undersigned hereby finds proper authoritative support of the Conclusions of Law noted above and the Undersigned hereby ORDERS that that Petitioner’s unjust cause claim is DISMISSED WITH PREJUDICE in 5 accordance with N.C. Gen. Stat. § 1A-1, Rule 12(b).

DECISION

FURTHER, Based on the foregoing including the pleadings, together with all other matters in the record, the undersigned Administrative Law Judge GRANTS Summary Judgment for the Respondent regarding Petitioner’s discrimination claim.

NOTICE REGARDING FINAL DECISION

Dismissal of Petitioner’s unjust cause claim is a final decision pursuant to N.C. GEN. STAT. § 150B-36(c).

Pursuant to the provisions of NORTH CAROLINA GENERAL STATUTES Chapter 150B, Article 4, any party wishing to appeal the final decision of the Administrative Law Judge may commence such appeal by filing a Petition for Judicial Review in the Superior Court of Wake County or in the Superior Court of the county in which the party resides. The party seeking review must file the petition within 30 days after being served with a written copy of the Administrative Law Judge’s Decision and Order. N.C. GEN. STAT. § 150B-46 describes the contents of the Petition and requires service of the Petition on all parties. Pursuant to N.C. GEN. STAT. § 150B-47, the Office of Administrative Hearings is required to file the official record in the contested case with the Clerk of Superior Court within 30 days of receipt of the Petition for Judicial Review. Consequently, a copy of the Petition for Judicial Review must be sent to the Office of Administrative Hearings at the time the appeal is initiated in order to ensure the timely filing of the record.

NOTICE REGARDING DECISION

The agency making the final decision regarding Petitioner’s discrimination claim in this contested case is required to give each party an opportunity to file exceptions to this decision issued by the Undersigned, 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 shall adopt the decision of the Administrative Law Judge unless the agency demonstrates that the decision of the Administrative Law Judge is clearly contrary to the

6 preponderance of the admissible evidence in the official record. The agency that will make the final decision in this case is the North Carolina State Personnel Commission.

It is hereby ordered that the agency making the final decision in this matter serve a copy of the final decision to the Office of Administrative Hearings, P. O Drawer 27447, Raleigh, North Carolina 27611-7447, in accordance with N.C. Gen. Stat. § 150B-36.

IT IS SO ORDERED.

This the 25th day of June 2002.

______Augustus B. Elkins II Administrative Law Judge