                               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
                                     -2-
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
                                  -3-
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.
                                -4-
       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
                              -5-
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,
                              -6-
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
                            -7-
“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
                              -8-
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.
