              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-618

                                 Filed: 17 July 2018

Office of Administrative Hearings, No. 15 OSP 07944

JOSEPH VINCOLI, Petitioner,

             v.

N.C. DEPARTMENT OF PUBLIC SAFETY, Respondent.


      Appeal by petitioner from final decision dismissal orders entered on or about

30 March 2017 by Administrative Law Judge J. Randolph Ward in the Office of

Administrative Hearings. Heard in the Court of Appeals 15 November 2017.


      Crawford & Crawford, PLLC, Robert O. Crawford III, for petitioner-appellant.

      Attorney General Joshua H. Stein, by Assistant Attorney General Tamika L.
      Henderson, for the State.


      STROUD, Judge.


      Petitioner appeals a final order dismissing his petition for a contested case

hearing under North Carolina General Statute § 126-5(h). Because petitioner failed

to appeal from the 10 April 2014 Office of Administrative Hearings order which

dismissed his first petition, we affirm the dismissal of this claim. We also affirm the

dismissal of petitioner’s whistleblower claim because his prior dismissal of the same

claim under North Carolina General Statute § 1A-1, Rule 41(a) was in Superior

Court, so he cannot refile his claim before the Office of Administrative Hearings.
                        VINCOLI V. N.C. DEP’T OF PUB. SAFETY

                                   Opinion of the Court



                                     I.      Background

      The underlying facts of this case are relatively simple but the procedural

background is extraordinarily complex. Much of this background is stated in Vincoli

v. State, ___ N.C. App. ___, ___, 792 S.E.2d 813 (2016) (“Vincoli I”). For purposes of

this appeal some of the procedural background regarding Vincoli’s first petition for a

contested case hearing as recited in Vincoli I is useful:

                    In 2010, Vincoli was hired by the North Carolina
             Department of Public Safety (“DPS”) into a position subject
             to the NCHRA and subsequently attained the status of a
             career State employee. A career State employee is afforded
             certain protections provided by the NCHRA, such as the
             right not to be disciplined except for just cause. However,
             the NCHRA also grants the Governor the authority to
             designate positions within departments of state
             government, including DPS, as policymaking or
             managerial exempt from the provisions of the NCHRA.
                    Until 2013, a career State employee whose non-
             exempt position was subsequently designated as exempt
             was entitled by N.C. Gen. Stat. § 126–34.1(c) to a contested
             case hearing before OAH to challenge the propriety of the
             designation. . . .
                    ....
                    On 21 August 2013, the Governor signed into law
             House Bill 834, which substantially revised the NCHRA. A
             career state employee’s ability to challenge an exempt
             designation pursuant to the previous process changed with
             the passage of An Act Enhancing the Effectiveness and
             Efficiency of State Government by Modernizing the State’s
             System of Human Resource Management and By Providing
             Flexibility for Executive Branch Reorganization and
             Restructuring. The Act, inter alia, amended the Employee
             Grievance section of the NCHRA by repealing N.C. Gen.
             Stat. § 126–34.1 and replacing it with N.C. Gen. Stat. §
             126–34.02, which omitted an employee’s action to


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challenge an exempt designation as grounds for a contested
case hearing and, in effect, eliminated a career state
employee’s opportunity to a contested case hearing before
OAH on this issue.
        On 1 October 2013, Vincoli, who was employed by
DPS as a Special Assistant to the Secretary for Inmate
Services and who had attained career status, was notified
that the Governor had declared his position as managerial
exempt. Approximately two months later, on 6 December
2013, Vincoli received a letter terminating him from
employment on the stated grounds that a change in agency
staff is appropriate at this time.
        . . . Vincoli filed an internal grievance with DPS
challenging the designation of his position as exempt. In
response, Vincoli received a letter from DPS refusing to
entertain his grievance on the basis that he was not eligible
for the internal appeal process as a managerial exempt
employee. Subsequently, Vincoli filed a grievance in the
North Carolina Office of State Human Resources
(“OSHR”), which refused to entertain Vincoli’s grievance,
concluding that: In this particular case and on these
particular facts, OSHR believes that there is no personal
or subject matter jurisdiction for any claim by Vincoli for a
just cause claim against DPS in either the agency
grievance process or OAH. As a result, neither DPS nor
OSHR issued a final agency decision on the matter.
        On 16 January 2014, Vincoli filed a petition for a
contested case hearing with OAH, challenging his
exemption and subsequent termination without just cause.
Specifically, Vincoli asserted that
        his designation as managerial exempt was in
        fact used to disguise a disciplinary dismissal
        without just cause that would fall within the
        scope of the State Personnel Act’s protections
        against dismissal without just cause. DPS’
        action was a sham, pretext exemption
        designation and constituted a de facto
        dismissal.
        In addition, Vincoli asserted that he was entitled to
a contested case hearing based on N.C. Gen. Stat. § 126–


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5(h), which provides: In case of dispute as to whether an
employee is subject to the provisions of this Chapter, the
State Personnel Act, the dispute shall be resolved as
provided in Article 3 of Chapter 150B. In response, DPS
filed a motion to dismiss, asserting that since Vincoli’s
position was designated as exempt, he was not entitled to
challenge DPS’ decision to terminate him. Additionally,
DPS asserted that OAH lacked jurisdiction to determine
whether the classification of Vincoli’s position as
managerial exempt was proper, on the basis that this issue
was not included in N.C. Gen. Stat. § 126–34.02, and any
issue for which an appeal to OAH has not been specifically
authorized cannot be grounds for a contested case hearing.
...
       ....
       Vincoli asserted that he had
       properly invoked the subject matter
       jurisdiction of the OAH in two separate and
       specific manners. He has alleged dismissal
       without just cause under 126–35(a), and has
       likewise alleged a dispute about whether he is
       subject to the State Personnel Act under
       N.C.G.S. 126–5(h).
       After a hearing, OAH entered an order on 10 April
2014 granting DPS’ motion to dismiss for lack of subject
matter jurisdiction. In its order, OAH made the following
conclusions of law:
       1.     Effective August 21, 2013, the law
       changed controlling the matters over which
       the OAH has original jurisdiction, and the
       General Assembly repealed the right to
       appeal an exempt designation. This statutory
       change removes the rights of a state employee
       to challenge an exempt designation;
       therefore, the merits of this contested case
       will not be addressed.
       2.     As a managerial exempt employee,
       Vincoli is not subject to the provisions of
       Chapter 126. Therefore, G.S. 126–5(h) does
       not grant Vincoli the right to appeal his


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                    exempt designation or ultimate dismissal
                    under G.S. 126–5(h) and Chapter 150B.
                    3.     Only those grievance listed in G.S.
                    126–34.02 may be heard as contested cases in
                    the OAH and only after review by the OSHR.
                    Vincoli’s exempt designation is no longer
                    among the grievances listed; therefore, the
                    OAH has no subject matter jurisdiction,
                    which is the predicate authority for a
                    contested case to proceed. The lack of subject
                    matter jurisdiction requires that Vincoli’s
                    contested case be dismissed.
                           Vincoli had thirty days to appeal OAH’s
                    decision to the Court of Appeals of North
                    Carolina. Vincoli did not timely appeal this
                    order to our Court.

Id. at ___, 792 S.E.2d t 814–16 (emphasis added.) (citation, quotation marks, ellipses,

brackets, and footnote omitted).

      Rather than appeal the 10 April 2014 order, on 29 August 2014, petitioner filed

a complaint for a declaratory judgment challenging the statutory basis for the denial

of his hearings as unconstitutional. Id. at ___ 792 S.E.2d at 816. On 9 June 2015,

the trial court granted summary judgment in petitioner’s favor “permanently

enjoin[ing] the State from enforcing N.C. Gen. Stat. § 126–34.02 against Vincoli and

ordered that Vincoli be provided with a contested case hearing before OAH[.]” Id. at

___, 792 S.E.2d at 817. The State appealed the 9 June 2015 order to this Court and

raised three issues, but this Court only addressed one issue, deeming it dispositive,

and reversed the trial court’s summary judgment order. Id. at ___, 792 S.E.2d at 817-

19. In Vincoli I, we held as follows:


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                    Because we hold that Vincoli is entitled to a
             contested case hearing before OAH pursuant to N.C. Gen.
             Stat. § 126–5(h), we need not address his claims based
             upon his right to due process under Article I, Section 19 of
             the North Carolina Constitution. We reverse the trial
             court’s order denying the State’s motion for summary
             judgment and granting Vincoli’s motion for summary
             judgment.

Id. at ___, 792 S.E.2d at 819 (citation omitted).

      While Vincoli I was pending before this Court, on 14 January 2016, petitioner

filed a second petition with OAH for a contested case hearing. Vincoli I was filed on

1 November 2016, and on 18 January 2017, petitioner filed a prehearing statement

to proceed with a contested case hearing under the second petition, relying on Vincoli

I as the basis for the hearing. On or about 3 February 2017, respondent moved for

summary judgment arguing petitioner failed to appeal OAH’s final decision and order

of 10 April 2014 which “expressly found that 126-5(h) did not allow OAH to exercise

jurisdiction over Petitioner’s claim and dismissed Petitioner’s claim.” On or about 16

February 2017, petitioner responded to respondent’s motion for summary judgment

arguing his contested case was not barred “because the Court of Appeals held that

Petitioner has a statutory right to a hearing before OAH and it would be unfair and

unjust to deny that right.” On or about 30 March 2017, the Administrative Law Judge

(“ALJ”) issued a final decision dismissing petitioner’s second petition, noting that

Court of Appeals opinion in Vincoli I “falls far short of the order or directive to OAH

to reopen the issues addressed in the 2014 Final Decision that Petitioner would like


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                                   Opinion of the Court



to read into it” and “[n]o law authorizing OAH to provide a hearing under these

circumstances has been identified.” Petitioner appeals.

                                  II.    Standard of Review

                    The standard of review for a motion for summary
             judgment requires that all pleadings, affidavits, answers to
             interrogatories and other materials offered be viewed in
             the light most favorable to the party against whom
             summary judgment is sought. Summary judgment is
             properly granted where there is no genuine issue of
             material fact to be decided and the movant is entitled to a
             judgment as a matter of law.

Harrington v. Perry, 103 N.C. App. 376, 378, 406 S.E.2d 1, 2 (1991) (citation omitted).

“The standard of review for summary judgment is de novo.” Forbis v. Neal, 361 N.C.

519, 524, 649 S.E.2d 382, 385 (2007). The factual basis for petitioner’s claim is not

the issue in this appeal, and we treat all of petitioner’s factual allegations as true for

purposes of summary judgment. See generally id. The appeal presents only the

question of law of petitioner’s legal right to pursue his second petition.

              III.   Contested Case Hearing under N.C. Gen. Stat. § 126-5(h)

      In petitioner’s brief on appeal, he focuses on arguments about why res judicata

does not apply to bar his second petition.        Respondent focuses primarily on its

argument that even if res judicata does not bar petition’s second petition, its defense

of sovereign immunity does. Neither argument addresses the real issue, which is

much simpler. The simple issue is whether petitioner lost his right to challenge the

OAH’s ruling in the 10 April 2014 order that he was not entitled to a contested case


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hearing under North Carolina General Statute §126-5(h) by failing to appeal that

order. We realize that the order on appeal discusses res judicata, but the ALJ came

to the correct conclusion, even if some of the rationale in the order is not entirely

correct: “A correct decision of a lower court will not be disturbed because a wrong or

insufficient or superfluous reason is assigned.” State v. Hester, ___ N.C. App. ___,

___, 803 S.E.2d 8, 15–16 (2017) (citation, quotation marks, and brackets omitted).

      Vincoli I held that petitioner had a right to a “contested case hearing before

OAH pursuant to N.C. Gen. Stat. § 126–5(h)” and declined to address whether North

Carolina General Statute § 126-34.02 is unconstitutional because it violated Vincoli’s

“ due process rights under Article I, Section 19 of the North Carolina Constitution[.]”

___ N.C. App.at ___, 792 S.E.2d at 816-19. For this reason, Vincoli I reversed the

trial court’s declaratory judgment which had

             declared that the enactment of N.C. Gen. Stat. § 126–34.02,
             a provision of the North Carolina Human Resources Act
             (“NCHRA”) . . . unconstitutional as applied to Vincoli
             because it did not provide him the right to a contested case
             hearing before the Office of Administrative Hearings
             (“OAH”) to challenge the designation of his position as
             exempt from the NCHRA

and “permanently enjoined the State from enforcing the statute against Vincoli and

ordered that the State provide Vincoli with an OAH hearing to review the designation

of his position as exempt.” ___ N.C. App. at ___, 792 S.E.2d at 814 (footnote and

quotation marks omitted).



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       Petitioner did not appeal the OAH order of 10 April 2014 in his first petition,

Case 14OSP00389, which determined he was not entitled to a contested case hearing

under North Carolina General Statute § 126-5(h).1 The proper avenue to challenge

the 10 April 2014 order was an appeal to this Court:

                      An aggrieved party in a contested case under this
               section shall be entitled to judicial review of a final decision
               by appeal to the Court of Appeals as provided in G.S. 7A-
               29(a). The procedure for the appeal shall be as provided by
               the rules of appellate procedure. The appeal shall be taken
               within 30 days of receipt of the written notice of final
               decision. A notice of appeal shall be filed with the Office of
               Administrative Hearings and served on all parties to the
               contested case hearing.

N.C. Gen. Stat. § 126-34.02(a) (2013).

       Since the 10 April 2014 OAH order was not appealed, it was the final

adjudication of the petition; it specifically held that petitioner was not entitled to a

hearing under North Carolina General Statute §126-5(h).                    Although the 10 April

2014 ruling was legally incorrect according to Vincoli I -- the declaratory judgment

action challenging the constitutionality of Vincoli’s right to a contested case hearing

-- it still stands. See Vincoli I, ___ N.C. App. ___, 792 S.E.2d 813. Vincoli failed to

appeal the 10 April 2014 order on his first petition and he cannot get a “second bite



1 Vincoli alleged in the declaratory judgment action that he had exhausted his administrative remedies
because the OAH “lacks the authority to declare a North Carolina statute unconstitutional” so his
claim could not be raised in an administrative forum. In other words, he accepted the OAH’s ruling
that he had no statutory right to a hearing under North Carolina General Statute § 126-5(h). But this
Court in Vincoli I held that it need not address the constitutional argument because Vincoli did have
a right to review under N. C. Gen. Stat. § 126-5(h). Vincoli I ___ N.C. App. at ___, 792 S.E.2d at 814.

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at the apple” by bringing a new petition based on the same claims, particularly as the

time for filing a contested case hearing based upon his termination had passed. See

N.C. Gen. Stat. § 126-34.02(a). The only way Vincoli could attempt to challenge the

10 April 2014 order again would be to link his second petition to his first petition,

which he attempted to do.

      Vincoli’s second petition is entitled “Petition for Contested Case Hearing and

Motion in the Cause[.]” (Original in all caps.) Petitioner sought to rely upon the

Superior Court’s declaratory judgment order, which was attached to the petition, to

give him a right to bring a new petition based on the same facts. Petitioner also

alleged that the petition was a “Motion in the Cause in case 14 OSP 389 for a

reconsideration[.]” The second petition recites the same factual and legal basis for

Vincoli’s claims as the first petition, and he alleges that he sought the declaratory

judgment “[a]fter attempting to exhaust his administrative remedies” from his first

petition. Petitioner claimed that the declaratory judgment order -- later reversed by

Vincoli I -- gave him a right to a hearing, despite his failure to appeal the 10 April

2014 OAH order.

      Petitioner also relies upon this Court’s opinion in Vincoli I, specifically noting

the last sentence of that opinion: “Nothing in this opinion shall be construed to

prejudice any right Vincoli may have to seek a contested case hearing under N.C.

Gen. Stat. § 126–5(h).” Id. at ___, 792 S.E.2d at 819. But we do not construe this



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Court’s opinion in Vincoli I to create a right to a hearing that does not otherwise exist

due to petitioner’s failure to appeal.        To the extent that petitioner sought

“reconsideration” of the first petition by his “motion in the cause,” any such

“reconsideration” is barred by the law of the case doctrine which “provides that when

a party fails to appeal from a tribunal’s decision that is not interlocutory, the decision

below becomes the law of the case and cannot be challenged in subsequent

proceedings in the same case.” Boje v. D.W.I.T., L.L.C., 195 N.C. App. 118, 122, 670

S.E.2d 910, 912 (2009). In conclusion, petitioner has lost his right to challenge the

10 April 2014 order’s determination he is not entitled to a contested case hearing

under North Carolina General Statute § 126-5(h). Although petitioner was entitled

to such a hearing, he failed to appeal the dismissal of his first petition and is bound

by the 10 April 2014 order.

                                   V.     Whistleblower Act

      OAH also dismissed respondent’s claim under the Whistleblower Act. One of

the bases of OAH’s dismissal of the whistleblower claim was petitioner’s prior

voluntary dismissal of the same claim under N.C. Gen. Stat. §1A-1, Rule 41(a).

Petitioner’s brief focuses on the factual merits of his claim but does not contest OAH’s

finding he filed his whistleblower claim in Superior Court, voluntarily dismissed the

claim, and never refiled in Superior Court. See N.C. Gen. Stat. § 1A-1, Rule 41(a)

(2017). Petitioner contends that by filing his second petition in OAH he revived the



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Superior Court claim, but this Court has previously held otherwise: “[A] state

employee may choose to pursue a Whistleblower claim in either forum,

[administrative or superior court,] but not both.” Swain v. Elfland, 145 N.C. App.

383, 389, 550 S.E.2d 530, 535 (2001). Petitioner has not directed us to any law which

indicates an individual may file in one forum, dismiss, and then revive the claim in

another. Therefore, we affirm the dismissal of petitioner’s whistleblower claim under

Rule 41(a).

                                  V.     Conclusion

      Because petitioner failed to appeal the 10 April 2014 order he is bound by the

determination he is not entitled to a contested case hearing, and we affirm the final

order on appeal. Because petitioner attempted to switch forums for his whistleblower

claim, he lost his right to bring that claim again and we affirm the final order

dismissing this claim.

      AFFIRMED.

      Judges ZACHARY and ARROWOOD concur.




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