2005 North Carolina Code - General Statutes § 126-34.1. Grounds for contested case under the State Personnel Act defined.

§ 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.)