2005 North Carolina Code - General Statutes Article 8 - Employee Appeals of Grievances and Disciplinary Action.

Article 8.

Employee Appeals of Grievances and Disciplinary Action.

§ 126‑34.  Grievance appeal for career State employees.

Unless otherwise provided in this Chapter, any career State employee having a grievance arising out of or due to the employee's employment and who does not allege unlawful harassment or discrimination because of the employee's age, sex, race, color, national origin, religion, creed, handicapping condition as defined by G.S. 168A‑3, or political affiliation shall first discuss the problem or grievance with the employee's supervisor and follow the grievance procedure established by the employee's department or agency. Any State employee having a grievance arising out of or due to the employee's employment who alleges unlawful harassment because of the employee's age, sex, race, color, national origin, religion, creed, or handicapping condition as defined by G.S. 168A‑3 shall submit a written complaint to the employee's department or agency. The department or agency shall have 60 days within which to take appropriate remedial action. If the employee is not satisfied with the department or agency's response to the complaint, the employee shall have the right to appeal directly to the State Personnel Commission. (1975. c. 667, s. 10; 1987, c. 320, s. 6; 1991, c. 354, s. 4; 1998‑135, s. 2.)

 

§ 126‑34.1.  Grounds for contested case under the State Personnel Act defined.

(a)       A State employee or former State employee may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes only as to the following personnel actions or issues:

(1)       Dismissal, demotion, or suspension without pay based upon an alleged violation of G.S. 126‑35, if the employee is a career State employee.

(2)       An alleged unlawful State employment practice constituting discrimination, as proscribed by G.S. 126‑36, including:

a.         Denial of promotion, transfer, or training, on account of the employee's age, sex, race, color, national origin, religion, creed, political affiliation, or handicapping condition as defined by Chapter 168A of the General Statutes.

b.         Demotion, reduction in force, or termination of an employee in retaliation for the employee's opposition to alleged discrimination on account of the employee's age, sex, race, color, national origin, religion, creed, political affiliation, or handicapping condition as defined by Chapter 168A of the General Statutes.

(3)       Retaliation against an employee, as proscribed by G.S 126‑17, for protesting an alleged violation of G.S. 126‑16.

(4)       Denial of the veteran's preference granted in accordance with Article 13 of this Chapter in initial State employment or in connection with a reduction in force, for an eligible veteran as defined by G.S. 126‑81.

(5)       Denial of promotion for failure to post or failure to give priority consideration for promotion or reemployment, to a career State employee as required by G.S. 126‑7.1 and G.S. 126‑36.2.

(6)       Denial of an employee's request for removal of allegedly inaccurate or misleading information from the employee's personnel file as provided by G.S. 126‑25.

(7)       Any retaliatory personnel action that violates G.S. 126‑85.

(8)       Denial of promotion in violation of G.S. 126‑14.2, where an initial determination found probable cause to believe there has been a violation of G.S. 126‑14.2.

(9)       Denial of employment in violation of G.S. 126‑14.2, where an initial determination found probable cause to believe that there has been a violation of G.S. 126‑14.2.

(10)     Harassment in the workplace based upon age, sex, race, color, national origin, religion, creed, or handicapping condition, whether the harassment is based upon the creation of a hostile work environment or upon a quid pro quo.

(11)     Violation of any of the following federal statutes as applied to the employee:

a.         The Fair Labor Standards Act, 29 U.S.C. § 201, et seq.

b.         The Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.

c.         The Family Medical Leave Act, 29 U.S.C. § 2601, et seq.

d.         The Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.

(b)       An applicant for initial State employment may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes based upon:

(1)       Alleged denial of employment in violation of G.S. 126‑16.

(2)       Denial of the applicant's request for removal of allegedly inaccurate or misleading information from the personnel file as provided by G.S. 126‑25.

(3)       Denial of equal opportunity for employment and compensation on account of the employee's age, sex, race, color, national origin, religion, creed, political affiliation, or handicapping condition as defined by Chapter 168A of the General Statutes. This subsection with respect to equal opportunity as to age shall be limited to persons who are at least 40 years of age. An applicant may not, however, file a contested case where political affiliation was the reason for the person's nonselection for (i) an exempt policymaking position as defined in G.S. 126‑5(b)(3), (ii) a chief deputy or chief administrative assistant position under G.S. 126‑5(c)(4), or (iii) a confidential assistant or confidential secretary position under G.S. 126‑5(c)(2).

(4)       Denial of the veteran's preference in initial State employment provided by Article 13 of this Chapter, for an eligible veteran as defined by G.S. 126‑81.

(5)       Denial of employment in violation of G.S. 126‑14.2, where an initial determination found probable cause to believe that there has been a violation of G.S. 126‑14.2.

(c)       In the case of a dispute as to whether a State employee's position is properly exempted from the State Personnel Act under G.S. 126‑5, the employee may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes.

(d)       A State employee or applicant for State employment may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes based upon a false accusation regarding, or disciplinary action relating to, the employee's alleged violation of G.S. 126‑14 or G.S. 126‑14.1.

(e)       Any issue for which appeal to the State Personnel Commission through the filing of a contested case under Article 3 of Chapter 150B of the General Statutes has not been specifically authorized by this section shall not be grounds for a contested case under Chapter 126. (1995, c. 141, s. 7; 1997‑520, s. 4; 1998‑135, s. 3; 2001‑467, s. 2.)

 

§ 126‑34.2.  Alternative dispute resolution.

(a)       Notwithstanding the provisions of Articles 6 and 7 of this Chapter, or the other provisions of this Article, with the consent of the parties, a matter for which a State employee, a former State employee, or an applicant for State employment has filed a contested case under Article 3 of Chapter 150B of the General Statutes may be handled in accordance with alternative dispute resolution procedures adopted by the State Personnel Commission.

(b)       In its discretion, the State Personnel Commission may adopt alternative dispute resolution procedures for the resolution of matters not constituting grounds for a contested case under G.S. 126‑34.1.

(c)       Nothing in this section shall be construed to limit the right of any person to file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes. (1995, c. 141, s. 8.)

 

§ 126‑35.  Just cause; disciplinary actions for State employees.

(a)       No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause. In cases of such disciplinary action, the employee shall, before the action is taken, be furnished with a statement in writing setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employee's appeal rights. The employee shall be permitted 15 days from the date the statement is delivered to appeal to the head of the department. However, an employee may be suspended without warning for causes relating to personal conduct detrimental to State service, pending the giving of written reasons, in order to avoid undue disruption of work or to protect the safety of persons or property or for other serious reasons. The employee, if he is not satisfied with the final decision of the head of the department, or if he is unable, within a reasonable period of time, to obtain a final decision by the head of the department, may appeal to the State Personnel Commission. Such appeal shall be filed not later than 30 days after receipt of notice of the department head's decision. The State Personnel Commission may adopt, subject to the approval of the Governor, rules that define just cause.

(b)       Notwithstanding any other provision of this Chapter, a reduction in pay or position which is not imposed for disciplinary reasons shall not be considered a disciplinary action within the meaning of this Article. Disciplinary actions, for the purpose of this Article, are those actions taken in accordance with the disciplinary procedures adopted by the State Personnel Commission and specifically based on unsatisfactory job performance, unacceptable personal conduct or a combination of the two.

(c)       For the purposes of contested case hearings under Chapter 150B, an involuntary separation (such as a separation due to a reduction in force) shall be treated in the same fashion as if it were a disciplinary action.

(d)       In contested cases conducted pursuant to Chapter 150B of the General Statutes, the burden of showing that a career State employee subject to the State Personnel Act was discharged, suspended, or demoted for just cause rests with the department or agency employer. (1975, c. 667, s. 10; 1989 (Reg. Sess., 1990), c. 1025, s. 2; 1991, c. 65, s. 7; c. 354, s. 5; c. 722, s. 1; 2000‑190, s. 13.)

 

§ 126‑36.  Appeal of unlawful State employment practice.

(a)       Any State employee or former State employee who has reason to believe that employment, promotion, training, or transfer was denied the employee or that demotion, layoff, transfer, or termination of employment was forced upon the employee in retaliation for opposition to alleged discrimination or because of the employee's age, sex, race, color, national origin, religion, creed, political affiliation, or handicapping condition as defined by G.S. 168A‑3 except where specific age, sex or physical requirements constitute a bona fide occupational qualification necessary to proper and efficient administration, shall have the right to appeal directly to the State Personnel Commission.

(b)       Subject to the requirements of G.S. 126‑34, any State employee or former State employee who has reason to believe that the employee has been subjected to any of the following shall have the right to appeal directly to the State Personnel Commission:

(1)       Harassment in the workplace based upon age, sex, race, color, national origin, religion, creed, or handicapping condition, whether the harassment is based upon the creation of a hostile work environment or upon a quid pro quo.

(2)       Retaliation for opposition to harassment in the workplace based upon age, sex, race, color, national origin, religion, creed, or handicapping condition, whether the harassment is based upon the creation of a hostile work environment or upon a quid pro quo. (1975, c. 667, s. 10; 1977, c. 866, ss. 13, 16; 1987, c. 320, s. 7; 1998‑135, s. 4.)

 

§ 126‑36.1.  Appeal to Personnel Commission by applicant for employment.

Any applicant for State employment who has reason to believe that employment was denied in violation of G.S. 126‑16 shall have the right to appeal directly to the State Personnel Commission. (1977, c. 866, s. 16.)

 

§ 126‑36.2.  Appeal to Personnel Commission by career State employee denied notice of vacancy or priority consideration.

Any career State employee who has reason to believe that he was denied promotion due to the failure of the agency, department, or institution that had a job vacancy to:

(1)       Post notice of the job vacancy pursuant to G.S. 126‑7.1(a) or;

(2)       Give him priority consideration pursuant to G.S. 126‑7.1(c)

may appeal directly to the State Personnel Commission. (1987, c. 689, s. 3; 1991, c. 354, s. 6.)

 

§ 126‑37.  Personnel Commission to review Administrative Law Judge's recommended decision and make final decision.

(a)       Appeals involving a disciplinary action, alleged discrimination or harassment, and any other contested case arising under this Chapter shall be conducted in the Office of Administrative Hearings as provided in Article 3 of Chapter 150B; provided that no grievance may be appealed unless the employee has complied with G.S. 126‑34. The State Personnel Commission shall make a final decision in these cases as provided in G.S. 150B‑36, except as provided in subsection (b1) of this section. The State Personnel Commission is hereby authorized to reinstate any employee to the position from which the employee has been removed, to order the employment, promotion, transfer, or salary adjustment of any individual to whom it has been wrongfully denied or to direct other suitable action to correct the abuse which may include the requirement of payment for any loss of salary which has resulted from the improperly discriminatory action of the appointing authority.

(b)       Repealed by 1993 (Reg. Sess., 1994), c. 572, s. 1.

(b1)     In appeals involving local government employees subject to this Chapter pursuant to G.S. 126‑5(a)(2), except in appeals in which discrimination prohibited by Article 6 of this Chapter is found or in any case where a binding decision is required by applicable federal standards, the decision of the State Personnel Commission shall be advisory to the local appointing authority. The State Personnel Commission shall comply with all requirements of G.S. 150B‑44 in making an advisory decision. The local appointing authority shall, within 90 days of receipt of the advisory decision of the State Personnel Commission, issue a written, final decision either accepting, rejecting, or modifying the decision of the State Personnel Commission. If the local appointing authority rejects or modifies the advisory decision, the local appointing authority must state the specific reasons why it did not adopt the advisory decision. A copy of the final decision shall be served on each party personally or by certified mail, and on each party's attorney of record.

(b2)     The final decision is subject to judicial review pursuant to Article 4 of Chapter 150B of the General Statutes. Appeals in which it is found that discrimination prohibited by Article 6 of this Chapter has occurred or in any case where a binding decision is required by applicable federal standards shall be heard as all other appeals, except that the decision of the State Personnel Commission shall be final.

(c)       If the local appointing authority is other than a board of county commissioners, the local appointing authority must give the county notice of the appeal taken pursuant to subsection (a) of this section. Notice must be given to the county manager or the chairman of the board of county commissioners by certified mail within 15 days of the receipt of the notice of appeal. The county may intervene in the appeal within 30 days of receipt of the notice. If the action is appealed to superior court the county may intervene in the superior court proceeding even if it has not intervened in the administrative proceeding. The decision of the superior court shall be binding on the county even if the county does not intervene. (1975, c. 667, s. 10; 1981, c. 680, s. 1; 1985, c. 746, s. 15; 1985 (Reg. Sess., 1986), c. 1022, s. 10; 1987, c. 394; 1989 (Reg. Sess., 1990), c. 1025, s. 3; 1991, c. 103, s. 1; 1993 (Reg. Sess., 1994), c. 572, s. 1; 1998‑135, s. 5.)

 

§ 126‑38.  Time limit for appeals.

Any employee appealing any decision or action shall file a petition for a contested case with the Office of Administrative Hearings as provided in G.S. 150B‑23(a) no later than 30 days after receipt of notice of the decision or action which triggers the right of appeal. (1977, c. 866, s. 14; 1989 (Reg. Sess., 1990), c. 1025, s. 4.)

 

§ 126‑39.  Scope of this Article.

Except for positions subject to competitive service and except for appeals brought under G.S. 126‑16, 126‑25, and 126‑36, this Article applies to all State employees who are career State employees at the time of the act, grievance, or employment practice complained of. (1977, c. 866, s. 15; 1985, c. 617, s. 4; 1987, c. 320, s. 8; 1991, c. 354, s. 7.)

 

§ 126‑40: Repealed by Session Laws 1985, c.  746, s. 16.

 

§ 126‑41.  Attorney and witness fees.

The decision of the Commission assessing or refusing to assess reasonable witness fees or a reasonable attorney's fee as provided in G.S. 126‑4(11) is a final agency decision appealable under Article 4 of Chapter 150B of the General Statutes. The reviewing court may reverse or modify the decision of the Commission if the decision is unreasonable or the award is inadequate. The reviewing court shall award court costs and a reasonable attorney's fee for representation in connection with the appeal to an employee who obtains a reversal or modification of the Commission's decision in an appeal under this section. (1985, c. 717; 1987, c. 827, ss. 1, 56.)

 

§ 126‑42.  Reserved for future codification purposes.