NO. COA14-178
NORTH CAROLINA COURT OF APPEALS
Filed: 16 December 2014
ERIC TUCKER,
Plaintiff
v. Cumberland County
No. 13 CVS 2946
FAYETTEVILLE STATE UNIVERSITY and
JAMES A. ANDERSON, Chancellor,
Defendants
Appeal by plaintiff from order entered 8 November 2013 by
Judge Lucy Inman in Cumberland County Superior Court. Heard in
the Court of Appeals 13 August 2014.
McGeachy, Hudson & Zuravel, by Donald C. Hudson, for
plaintiff-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Kimberly D. Potter, for defendant-appellees.
CALABRIA, Judge.
Plaintiff Eric Tucker (“plaintiff”) appeals from an order
dismissing his complaint with prejudice and, alternatively,
granting Fayetteville State University’s (“FSU”) and University
Chancellor James A. Anderson’s (“Anderson”) (collectively,
“defendants”) motion for summary judgment. We affirm.
Plaintiff had a written employment contract and had been
employed as the head coach of the FSU women’s basketball team
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for sixteen years. During plaintiff’s tenure, he never had any
negligent evaluations, reprimands, or warnings. According to
plaintiff, he always executed his duties in an exemplary manner.
In April 2009, FSU’s Department of Police and Public Safety
(“FSU DPPS”) investigated allegations regarding plaintiff’s
inappropriate language towards team members, assault on a team
member, and threats to terminate team members’ athletic
scholarships. As a result of FSU DPPS’s report, Anderson
decided there were grounds for termination. FSU subsequently
informed plaintiff that he could either resign his position or
FSU would begin the process of terminating his employment. In a
letter dated 21 April 2009, plaintiff notified the FSU athletic
director of his decision to retire. On 1 July 2009, plaintiff
did in fact retire, even though his contract did not expire
until 30 June 2010.
On 23 December 2009, plaintiff filed a complaint against
defendants seeking compensatory damages for breach of contract,
alleging FSU lacked just cause to terminate his employment and
forced him to resign against his will. Defendants filed a
motion to dismiss. On 22 April 2010, the trial court granted
defendants’ motion and dismissed the action with prejudice
pursuant to Rule 12(b)(6). On appeal, this Court reversed the
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dismissal. After the case was remanded, plaintiff voluntarily
dismissed that complaint without prejudice.
On 12 April 2013, plaintiff timely refiled his complaint
against defendants, alleging, inter alia, that defendants
breached his employment contract because defendants lacked just
cause to terminate his employment and forced him to resign
against his will. Plaintiff alleged that “the grievance system
set up by the Defendants does not allow for the Plaintiff to
receive the compensatory damages to which he is entitled based
upon the alleged breach of contract and the resulting damage to
the Plaintiff’s ability to engage in his profession.”
Defendants subsequently filed a motion to dismiss pursuant to
N.C.R Civ. P. 12(b)(1) and 12(b)(2) on the grounds that
plaintiff failed to exhaust his administrative remedies and
sovereign immunity. Defendants also included a motion for
summary judgment on the grounds that there was no genuine issue
of material fact with respect to the breach of plaintiff’s
employment contract. On 8 November 2013, the trial court
entered an order dismissing plaintiff’s complaint with prejudice
and in the alternative granted defendants’ motion for summary
judgment. Plaintiff appeals.
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On appeal, plaintiff argues that the trial court erred in
granting both defendants’ motion to dismiss the complaint and
defendants’ motion for summary judgment. We disagree.
“An action is properly dismissed under Rule 12(b)(1) for
lack of subject matter jurisdiction where the plaintiff has
failed to exhaust administrative remedies. An appellate court’s
review of such a dismissal is de novo.” Johnson v. Univ. of
N.C., 202 N.C. App. 355, 357, 688 S.E.2d 546, 548 (2010)
(citations and quotations omitted).
“Any party or person aggrieved by the final decision in a
contested case, and who has exhausted all administrative
remedies made available to the party or person aggrieved by
statute or agency rule, is entitled to judicial review of the
decision[.]” N.C. Gen. Stat. § 150B-43 (2013). The actions of
the University of North Carolina and its constituent
institutions are subject to the judicial review procedures of
N.C. Gen. Stat. § 150B-43. Huang v. N.C. State University, 107
N.C. App. 710, 713, 421 S.E.2d 812, 814 (1992). Since FSU is a
constituent institution of the University of North Carolina
pursuant to N.C. Gen. Stat. § 116-4 (2013), any action taken is
subject to specific review procedures. “Because no statutory
administrative remedies are made available to employees of the
University [of North Carolina], those who have grievances with
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the University have available only those administrative remedies
provided by the rules and regulations of the University and must
exhaust those remedies before having access to the courts.”
Huang, 107 N.C. App. at 713-14, 421 S.E.2d at 814. “Therefore,
before a party may ask the courts for relief from a University
decision: (1) the person must be aggrieved; (2) there must be a
contested case; and (3) the administrative remedies provided by
the University must be exhausted.” Id. at 714, 421 S.E.2d at
814. Additionally, “the complaint should be carefully
scrutinized to ensure that the claim for relief is not inserted
for the sole purpose of avoiding the exhaustion rule.” Id. at
715, 421 S.E.2d at 816 (citation omitted).
As an initial matter, the correct procedure for seeking
review of an administrative decision is to file a petition in
court, explicitly stating the exceptions taken to the
administrative decision. Id. at 715, 421 S.E.2d at 815. “The
burden of showing the inadequacy of the administrative remedy
is on the party claiming the inadequacy, and the party making
such a claim must include such allegation in the complaint.” Id.
(citations omitted). “In order, however, to rely upon futility
or inadequacy, allegations of the facts justifying avoidance of
the administrative process must be pled in the complaint.”
Justice for Animals, Inc. v. Robeson Cty., 164 N.C. App. 366,
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372, 595 S.E.2d 773, 777 (2004) (citation and internal quotation
marks omitted).
In the instant case, according to plaintiff’s employment
contract, plaintiff was “subject to Fayetteville State
University’s Employment Policies for Personnel Exempt from the
State Personnel Act” (the “employment policies”). The
employment policies are incorporated by reference and include
grievance policies and procedures for employees to secure review
of decisions concerning discharge or termination of employment.
Therefore, plaintiff was entitled to all of the procedures
available in the employment policies. Those procedures
included, inter alia, a written grievance to the Director of
Human Resources, a hearing before a grievance committee, and
ultimately review of the grievance by the University of North
Carolina Board of Governors. Once plaintiff completed that
process, he would have been entitled to judicial review of the
decision pursuant to N.C. Gen. Stat. § 150B-43.
Nevertheless, plaintiff elected not to pursue any of the
administrative remedies available to him, arguing that the
administrative remedies provided by FSU were so inadequate that
he essentially had no effective administrative remedies.
Plaintiff contends that due to his unique position as a
basketball coach, the outcome of any administrative remedy
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“would have been so unfair to the team and the coach as to
render such procedures virtually meaningless.” Specifically,
plaintiff contends that, as a basketball coach, proceeding with
an administrative remedy would cause damage to the basketball
team, and “a coach who has formed close bonds with the players
on his team could not be reasonably expected to damage the team
in that manner.”
Plaintiff correctly relies on Huang for the proposition
that he was not required to exhaust his administrative remedies
“when the only remedies available from the agency are shown to
be inadequate.” Huang, 107 N.C. App. at 715, 421 S.E.2d at 815
(citation omitted). Huang, as a tenured professor, filed a
complaint in superior court seeking compensatory damages rather
than pursuing administrative remedies, believing them to be
inadequate. Id. at 712, 421 S.E.2d at 814. Plaintiff, like
Huang, is an aggrieved party in a contested case. Unlike Huang,
plaintiff supports his argument with his loyalty to the
basketball team. However, plaintiff provides no authority to
support his contention that his loyalty to the basketball team
satisfies his burden of showing the inadequacy of the
administrative remedy. Since plaintiff submitted a letter
indicating his decision to retire rather than requesting a
hearing, then filed a complaint, plaintiff not only failed to
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meet his burden of showing that the administrative remedies were
inadequate, but also essentially avoided the exhaustion rule.
Therefore, the trial court lacked subject matter jurisdiction
and properly dismissed plaintiff’s complaint. Since we find
that the trial court properly granted defendants’ motion to
dismiss because plaintiff failed to carry his burden of proving
that the administrative remedies available to him were
inadequate, and therefore failed to exhaust his administrative
remedies, we do not reach the issue of sovereign immunity.
Although plaintiff also argues that the trial court erred
in granting defendants’ motion for summary judgment, since the
trial court lacked subject matter jurisdiction, we need not
address plaintiff’s remaining arguments. The trial court
properly dismissed plaintiff’s complaint with prejudice. We
therefore affirm the order of the trial court.
Affirmed.
Judges ELMORE and STEPHENS concur.