# Lee v. N.C. Dept. of Transportation

> Court of Appeals of North Carolina · February 7, 2006 · 175 N.C. App. 698

URL: https://www.frixlaw.com/law-library/cases/9612482

## Case

- **Full name:** RICHARD W. LEE, Petitioner v. N.C. DEPT. OF TRANSPORTATION, Respondent
- **Court:** Court of Appeals of North Carolina
- **Decided:** February 7, 2006
- **Citations:** 175 N.C. App. 698; 625 S.E.2d 567; 2006 N.C. App. LEXIS 287
- **Precedential status:** Published
- **Opinion:** Concurring in part by Lewis
- **Judges:** Elmore, Hudson, Lewis
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9612482

## Opinion text

LEWIS, Judge,
concurring in part and dissenting in part.
I agree with the majority’s conclusion that the SPC lacked jurisdiction to hear petitioner’s racial harassment and retaliation claims. However,- because I disagree with the majority’s conclusion that the SPC had jurisdiction to hear petitioner’s racial discrimination claim, I respectfully concur in part and dissent in part.
“Construing the pleadings liberally, including both the petition and prehearing statement,” the majority concludes petitioner sufficiently alleged racial discrimination on the part of respondent. However, I note that “[f]iling a petition in the OAH to commence a contested case hearing is a mandatory step for the OAH to exercise subject matter jurisdiction over [a] petitioner’s appeal under Chapter 126.” Nailing v. UNC-CH, 117 N.C. App. 318, 327, 451 S.E.2d 351, 357 (1994), disc. review denied, 339 N.C. 614 , 454 S.E.2d 255 (1995); see N.C. Gen. Stat. §§ 126-37 (a), 150B-123. “Whether a prehearing statement should be filed is within the discretion of the administrative law judge.” Nailing, 117 N.C. App. at 327 , 451 S.E.2d at 357 (citation omitted). Thus, “ [i]f the administrative law judge requires a party to file a prehearing statement, the prehearing statement is filed after the contested case has already been commenced by filing the petition pursuant to N.C. Gen. Stat. § 150B-23.” Id. at 328, 451 S.E.2d at 357 (concluding petitioner failed to timely file a contested case petition with OAH regarding discrimination based upon a handicapping condition, despite amendment of her prior prehearing statement to include such an allegation).
Here, petitioner’s case was commenced by the fifing of a “Petition For A Contested Case Hearing” form (“the Form”) provided by the Office of Administrative Hearings. Prior to asking the petitioner to “state facts showing how [he or she] believe[s] [he or she] ha[s] been harmed by the State local agency or board,” the Form provides several choices from which the petitioner may allege his or her “appeal is based on.” The choices are placed in a conspicuous area of the Form, and the petitioner is expressly instructed to “check all that apply.” As the majority notes, in this case petitioner altered the *705 “demotion without just cause” choice on his Form to read “demotion without Insufficient Cause,” and he further added that his appeal was based on “Hostile Work environment.” However, petitioner failed to check any of the boxes beneath the set of choices regarding “discrimination and or retaliation for opposition to alleged discrimination,” and he failed to indicate which type of discrimination he suffered, despite the Form’s explicit instruction that “[i]f your appeal is based upon alleged discrimination and or retaliation for opposition to alleged discrimination, you must specify the type of discrimination.” While petitioner’s prehearing statement suggests he was harassed and perhaps demoted based upon his race, the Form contains no allegation regarding discrimination in general or racial discrimination in particúlar.
I note that petitioner acted pro se when completing the Form. However, I believe the Form was designed with pro se petitioners in mind, and I reemphasize that its instructions are plain and its requirements are neither burdensome nor complicated. Finally, I note petitioner filled in certain portions of the form related to general workplace grievances, but left blank those portions which specifically address discrimination. Notwithstanding our general liberality in reviewing pro se pleadings, I conclude petitioner failed to properly allege racial discrimination in this case. Accordingly, I would hold the trial court erred by concluding the SPC had subject matter jurisdiction over petitioner’s racial discrimination claims.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9612482. Public record. Not legal advice.