Discrimination Cases

John E. Mole vs. University of Massachusetts & others. No. 00-P-735. Suffolk. March 20, 2002. May 8, 2003. Present: Grí->nbrrg, Lenk, & Cowin, JJ. Further appellate review granted, 439 Mass. 1109 (2003). University of Massachusetts. Civil Rights, Termination of employment. Employment, Discrimination, Retaliation, Termination. Anti-Discrimination Law, Termination of employment, Prima facie case. Public Employment, Termination. Limitations, Statute of. Practice, Civil, Prima facie case, Statute of limitations. In a civil action brought by a tenured professor against the defendant university and individual defendants, alleging that the professor’s support of his wife’s sexual harassment complaint against the university inspired unlawful retaliation resulting in reductions in salary and ultimately in termination of his appointment, the judge erred in granting a motion for a directed verdict in favor of the defendants, where evidence of adverse employment actions that were unavailable as a basis for the plaintiff’s claims by virtue of the applicable statutes of limitations could be used to support an inference that subsequent acts that were not time-barred were a product of discrimination, and therefore, the evidence was sufficient to permit the jury to find a causal connection between the professor’s support of his wife’s complaint and the subsequent adverse employment decisions. [38-47] Greenberg, J., dissented. In a civil action brought by a tenured professor against the defendant university and individual defendants, alleging that the professor’s support of his wife’s sexual harassment complaint against the university inspired unlawful retaliation resulting in reductions in salary and ultimately in termination of his appointment, the professor’s administrative complaint was sufficient to satisfy the jurisdictional prerequisites of 42 U.S.C. § 2000e-3(a) (2000) and G. L. c. 15IB, and the fact that the professor was subsequently subjected to a more significant effect of the allegedly unlawful retaliation did not alter the fact that the retaliation issue had been fairly placed before the Massachusetts Commission Against Discrimination [47-48]; further, the professor’s claim under 42 U.S.C. § 1983 (2000) was not preempted by his claim under 42 U.S.C. § 2000e-3(a), where the professor adequately pleaded interference with his right under the First Amendment to the United States Constitution of intimate association with his wife [48]. Civil action commenced in the Superior Court Department on August 5, 1994. A motion for summary judgment was heard by Barbara J. Rouse, J., and the case was heard by Charles T. Spurlock, J. John Foskett for the plaintiff. Christopher J. Campbell for the defendants. Michael R Czech, Frank J. Chlapowski, and Michael A. Bratt. Cowin, J. The plaintiff, formerly a tenured professor at the University of Massachusetts Medical Center, brought proceedings against the University of Massachusetts (University) and various University employees in which he alleged that his support of his wife’s sexual harassment complaint against a department head inspired unlawful retaliation resulting first in reductions in his salary, then in termination of his appointment. Following pretrial rulings that narrowed the issues (and from which there have been no appeals), the case was tried to a jury for six days. At the close of the plaintiff’s case, the judge directed verdicts in favor of the defendants Michael A. Bratt and Michael P. Czech. At the close of all the evidence, the judge directed verdicts in favor of the remaining defendants Frank J. Chlapowski and the University. Following the entry of judgments in accordance with the directed verdicts, the plaintiff appealed. Applying the standard applicable to directed verdicts, see Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 488 n.14 (2000), we conclude that there was sufficient evidence both of a prima facie case and of pretext on the part of the defendants to require submission of the case to the jury, and we accordingly reverse. 1. Prior proceedings. On May 2, 1993, the plaintiff filed with the Massachusetts Commission Against Discrimination a complaint of unlawful retaliation for engaging in a protected activity, i.e., supporting his wife’s sexual harassment complaint. Following the required waiting period, see G. L. c. 151B, § 9, the plaintiff sought relief in the Superior Court under various civil rights statutes, specifically: (1) G. L. c. 151B, §§ 4(4), 4(4A) and 4(5); (2) Title VII, 42 U.S.C. § 2000e-3(a) (2000); and (3) 42 U.S.C. § 1983 (2000). He also sued for breach of contract and declaratory relief. Each of his statutory claims was asserted against all of the defendants: Michael P. Czech, former chair of the biochemistry and molecular biology department; Frank P. Chlapowski, acting chair; Michael A. Bratt, provost of the medical center; and the University itself. A judge of the Superior Court ruled that the “continuing violation” doctrine was inapplicable and granted summary judgment in favor of the defendants on those portions of the G. L. c. 15 IB claim that sought redress for conduct occurring prior to November 2, 1992 (the then applicable limitation of six months prior to the filing of the plaintiff’s complaint with the Massachusetts Commission Against Discrimination). Likewise, the judge granted the defendants summary judgment with respect to the plaintiff’s allegations under Title VII of conduct occurring prior to September 2, 1992 (240 days prior to the filing with that commission, 42 U.S.C. § 2000e-5[5]). The judge, in addition, granted summary judgment for the University on the plaintiff’s § 1983 claim, ruling that the University was not a “person” subject to liability thereunder. Finally, the judge allowed the defendants’ motion for summary judgment on the plaintiff’s claims for breach of contract and declaratory judgment. The remaining claims went to trial, resulting in the directed verdicts in question. 2. Material facts. “The question before us [in reviewing such a ruling] is . . . whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff[].’ ” Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. at 488 n.14, quoting from Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 520 (1992). Therefore, we state what the jury could have found, treating the evidence, as well as the reasonable inferences therefrom, in the light most favorable to the plaintiff. The plaintiff and his wife, Jacqueline Anderson-Mole, each the holder of a doctoral degree in biochemistry, were engaged in research at the University of Alabama at Birmingham when they accepted an offer from the defendant Czech to join the biochemistry and molecular biology department (department) at the University of Massachusetts Medical Center (medical center). The plaintiff joined as an associate professor, was subsequently granted tenure, and thereafter was granted a full professorship. Anderson-Mole joined the department on a non-tenure track. They brought with them valuable equipment and supplies as well as grants that they used to support their research work and salaries over the next several years. At the medical center, they founded and operated as codirectors the Protein Chemistry Core Facility (PCF), a research facility that, among other things, isolated and sequenced proteins and amino acids for other researchers at the medical center and other institutions. For several years, the PCF was funded in part by the Diabetes and Endocrinology Research Center (DERC), an organization of scientists at the medical center (of which Czech was a member), that in turn received grants awarded by the National Institutes of Health. The plaintiff also received funding from the Scientific Council, a group of scientists composed of one representative from each medical center department. At the material times, faculty members at the medical center were evaluated on the basis of teaching, service and research. In 1983, Czech and the defendant Chlapowski, then an associate professor, gave the plaintiff’s teaching strongly positive evaluations. In recommending tenure for the plaintiff with “great enthusiasm,” Czech referred to him as an “exceptionally talented faculty member” and a “truly distinguished investigator,” and remarked on his “solid teaching performance,” “well respected research program,” and “outstanding service” as PCF director. Following these reviews, the plaintiff was granted tenure in 1984. He was elevated to the rank of full professor in 1987, again following enthusiastic recommendations by Czech and Chlapowski and a unanimous vote by the department’s personnel action committee. Between 1981 and 1989, the plaintiffs salary was consistently increased; he was appointed to various department committees by Czech, who confirmed that he was active and productive thereon; and he received no negative faculty evaluations regarding his performance. By 1989, the plaintiff carried the second highest teaching load in the department. In that year, Czech took a leave of absence from the position of chair of the department, his duties being assumed by Chlapowski in an acting capacity. Although on leave as chair, Czech continued to participate in faculty evaluations. During budget hearings in 1989, the Scientific Council discussed a proposal to save money by merging the plaintiff’s PCF with a neighboring peptide synthesis core facility. Various concerns regarding the operations of the PCF, including alleged difficulties encountered in working with the plaintiff, were expressed. A subcommittee was appointed to investigate and make a recommendation regarding continued funding of the PCF. On February 8, 1990, the subcommittee recommended consolidation of the two laboratories and a public search for a new director of the combined facility. On February 28, 1990, Anderson-Mole submitted to James Wells, the medical center’s equal employment opportunity compliance officer, an informal complaint of sexual harassment against Czech. The plaintiff supported his wife’s complaint. During that academic year (September, 1989, to June, 1990), the plaintiff was relieved of the majority of his teaching duties, the stated reason for which was the need to give younger faculty members teaching experience. During the summer of 1990, both the plaintiff and Anderson-Mole sought appointment as head of the new combined PCF-pepti.de synthesis core facility. Neither was a finalist for the position. In August, 1990, Aaron Lazare, then chancellor of the medical center, informed Czech that a female faculty member had submitted an informal complaint of sexual harassment against him. There was some evidence that, at the time, Anderson-Mole was the only female faculty member of the department. Czech informed Chlapowski of the complaint, also indicating to Chlapowski that Czech was already aware of a rumor that such a complaint existed (notwithstanding that complaints of this nature were understood to be confidential). On October 4, 1990, the plaintiff received, for the first time, a negative performance evaluation for the period July, 1989, to June, 1990, signed by Czech and Chlapowski. The evaluation reported that the plaintiff had been relieved of certain teaching assignments because of “consistently negative oral and written evaluations of his teaching efforts” by students. In addition, Chlapowski, in his capacity as acting department chair, now refused to appoint the plaintiff to membership on any department committees, despite the fact that the plaintiff asked to be included. By December, 1990, relations between the plaintiff and other faculty truly began to disintegrate, with the plaintiff, in the course of a faculty meeting, attacking Chlapowski’s credentials and performance as acting chair and referring to him as “Czech’s stooge.” In January, 1991, Anderson-Mole, again with the plaintiff’s support, filed with the equal employment opportunity compliance officer a formal charge of sexual harassment against Czech. Despite the confidentiality that normally attends such complaints, the officer informed Chlapowski that Anderson-Mole had filed a formal charge of sexual and professional harassment. Chlapowski erroneously believed that the charge had been leveled at himself, subsequently refusing to accept the plaintiff’s statement that the charge was directed at Czech only. By early 1991, Czech also learned that the formal complaint had been submitted. On April 24, 1991, Chlapowski filed a formal charge of scientific misconduct against the plaintiff. This arose following the negative evaluation of the plaintiff dated October 4, 1990, when the plaintiff requested that Chlapowski review certain of the plaintiff’s publications for which the plaintiff believed he had not received due credit. The review disclosed six papers listed by the plaintiff as “accepted for publication” or “in press” that had not subsequently been published, as well as articles that the plaintiff had coauthored that were published but that he had failed to list. Following normal medical center procedures, the associate dean of scientific affairs convened an investigating panel that concluded that, while the plaintiff’s conduct had been “sloppy and inappropriate,” no scientific misconduct had occurred. While most of the data contained in the six articles in question did get published, the associate dean officially reprimanded the plaintiff for “repeated inappropriate reporting of scientific achievements.” In May, 1991, the DERC voted to discontinue funding of the PCF effective December 1, 1991. The plaintiff had attempted to rebut various grounds on which the decision was apparently based, but to no avail. On May 29, 1991, Chlapowski wrote to the Scientific Council, another funding source for the PCF, requesting that the council “officially come to closure with regard to the relationship of [the plaintiff]” and that it do so “as soon as possible.” In June, 1991, the council voted to discontinue all funding for the PCF. On July 8, 1991, the plaintiff wrote to Chlapowski requesting department funding for the PCF. Chlapowski requested both a formal application and written answers to a number of questions regarding the PCF. Alleging that responses would require countless hours gathering information within and outside the medical center, and that Chlapowski had given no assurance that the application would be approved, the plaintiff did not pursue the request. In August, 1991, the medical center informed Anderson-Mole that her contract for the 1991-1992 academic year would be her last. Furthermore, Chlapowski informed Anderson-Mole that, upon the expiration of her contract, she was not to enter the plaintiff’s laboratory or, for that matter, the premises of the medical center in general. In addition, Chlapowski demanded that, during the final year of the contract, the plaintiff pay one hundred percent of Anderson-Mole’s salary, as well as her accrued vacation time, rather than the eighty percent that he had previously paid (the department bearing the remaining twenty percent). The plaintiff filed a grievance on the salary issue and prevailed. By the end of November, 1991, the plaintiff’s funding had been completely eliminated. On December 13, 1991, Czech and Chlapowski issued another negative evaluation of the plaintiff’s performance, this time for the period July, 1990, to June, 1991, in which they expressed a lack of comprehension as to how the plaintiff could remain as a faculty member. In January, 1992, Chlapowski refused to approve the plaintiff’s application for a grant from the Alzheimer’s Foundation. The reasons for the refusal are disputed, although the plaintiff suggests that Chlapowski’s stated reason was pretextual. Throughout 1992 and early 1993, Chlapowski demanded that the plaintiff contract his research activities from the three laboratory rooms that he had previously enjoyed into a single laboratory room. Despite the plaintiff’s request that the change be delayed until completion of his grievance on the subject, the change was implemented. On February 10, 1993, Chlapowski submitted an even more negative performance appraisal of the plaintiff for the period July, 1991, to June, 1992. In the evaluation, he recommended that, absent significant improvements in productivity, the plaintiff’s salary be reduced by 17.5 percent in the year thereafter. He also stated that the plaintiff had filed no grant applications, an observation that the plaintiff contested. Czech did not sign this evaluation, and claims that he did not participate in the review. However, the review incorporated by reference the previous year’s review on which Czech did collaborate. In addition, it employed plural references (“we continue to be deeply concerned;” “our conclusion remains the same”), suggesting that Chlapowski intended to reflect Czech’s opinion as well as his own. On May 2, 1993, the plaintiff filed a complaint with the Massachusetts Commission Against Discrimination alleging that the defendants retaliated against him because of his support of his wife’s sexual harassment charge. This filing also served as a filing with the United States Equal Employment Opportunity Commission. The plaintiff also filed a grievance, claiming that it was a conflict of interest for Chlapowski to evaluate him. At the request of the grievance committee, Chlapowski withdrew from the evaluation process and a three-member, ad hoc personnel action committee was appointed to conduct future evaluations of the plaintiff. Although the plaintiff was entitled to select one member of the ad hoc committee, with that member joining in the selection of the third, he declined to make a choice. The department members then selected two of their number to serve, with those two choosing a third. As so constituted, the ad hoc committee included Dr. Thomas Miller, a close friend of Chlapowski who had had a recent conflict with the plaintiff. The ad hoc committee conducted three evaluations of the plaintiff. In its report of June 9, 1994, for the period July 1, 1992, to April 1, 1994, the committee accused the plaintiff of being deliberately unproductive, having performed no research and making no genuine attempts to obtain funding. It voted to reduce his annual salary by 17.5 percent, recommended that his laboratory space be taken away entirely, and threatened him with an additional 17.5 percent reduction the following year if his performance did not improve. In its 1995 report for the period April 1, 1994, to March 31, 1995, the committee in fact reduced the plaintiff’s salary by a second 17.5 percent. The committee evaluated the plaintiff a final time on July 10, 1996, for the period April 1, 1995, and following, and then resigned, stating that it was a waste of time to evaluate someone who was not doing anything. In 1996, Edward Bresnick, a vice chancellor for research who had succeeded to the position of the plaintiff’s evaluator, requested that Chlapowski document his concerns about the plaintiff. By letter dated August 21, 1996, Chlapowski accused the plaintiff of a complete lack of productivity, “incorrigible and unethical” behavior, and the improper use of his university computer for personal matters. In 1997, medical center Chancellor Aaron Lazare commenced termination proceedings against the plaintiff. Czech and Chlapowski gave information used by the University in connection with these proceedings, and in 1998, they testified at the hearings. After the hearings concluded, Lazare requested that Czech review a transcript of the plaintiff’s testimony. On February 5, 1999, Czech wrote to Lazare, discrediting the plaintiff’s testimony and claiming that he had received tenure under “false pretenses.” Ultimately, the University’s board of trustees, acting on Lazare’s recommend

JOHNNY E. BREWER v. CABARRUS PLASTICS, INC. No. 560A01 (Filed 2 May 2003) Civil Rights; Employer and Employee— racial discrimination— retaliatory discharge — instructions The decision of the Court of Appeals holding that there was reversible error in the trial court’s instructions in an action in which plaintiff alleged that defendant employer discriminated against him on the basis of race and as retaliation for filing a complaint with the EEOC is reversed for the reasons stated in the dissenting opinion that the trial court’s instructions using the phrases “on account of’ and “because of’ when stating the law to be applied in a pretext case did not constitute reversible error. Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 146 N.C. App. 82, 551 S.E.2d 902 (2001), reversing a judgment entered 18 May 1999 and an order denying a motion for a new trial signed 17 July 1999 by Judge W. Erwin Spainhour in Superior Court, Cabarrus County, and remanding for a new trial. On 19 December 2001, the Supreme Court granted defendant’s discretionary review of an additional issue. Heard in the Supreme Court 8 April 2003. Julie H. Fosbinder; and Ferguson, Stein, Chambers, Wallas, Adkins, Gresham & Sumter, P.A., by John W. Gresham, for plaintiff-appellee. Robinson, Bradshaw & Hinson, P.A., by Richard A. Vinroot and James H. Bingham, Jr., for defendant-appellant. The American Civil Liberties Union of North Carolina Legal Foundation, by Seth H. Jaffe, amicus curiae. . Plaintiff also appealed from an order entered by the trial court on 14 May 1999, excluding from trial the prior testimony of a witness. The issue pertaining to this order was not addressed by the Court of Appeals. PER CURIAM. For the reasons stated in the dissenting opinion, we reverse that portion of the decision of the Court of Appeals; we also conclude that our order allowing defendant’s petition for discretionary review of an additional issue was improvidently allowed. The result in the Court of Appeals did not require it to reach other issues properly preserved and raised on appeal. Because we now reverse the Court of Appeals’ decision as to the only issue it addressed, on remand, that court should also consider plaintiff’s remaining issues. REVERSED IN PART; DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED IN PART.

SUSAN F. JOHNSON, Plaintiff v. BOARD OF TRUSTEES OF DURHAM TECHNICAL COMMUNITY COLLEGE, Defendant No. COA02-356 (Filed 1 April 2003) 1. Disabilities— North Carolina Persons with Disabilities Protection Act — termination from employment — misconduct discovered after discharge The trial court erred by failing to apply McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995), stating that evidence of employee misconduct discovered after a discharge which would have provided a lawful basis for such discharge if discovered earlier does not bar a discrimination claim, to plaintiff teacher’s employment discrimination case under the North Carolina Persons with Disabilities Protection Act (NCPDPA) based on defendant community college’s failure to rehire plaintiff or offer her another contract, because: (1) the trial court specifically found that defendant’s disability was the determining factor in the 16 June 1995 decision to not offer her another contract to teach at a jail, and the decision not to renew was made solely for motives unlawful under the NCPDPA; and (2) once it was determined that discriminatory conduct took place on 16 June 1995, it was improper for the trial court to have considered the after-acquired allegations of wrongdoing by plaintiff as a basis for defendant’s motive in discharging plaintiff. 2. Disabilities— North Carolina Persons with Disabilities Protection Act — termination from employment — amount of damages, costs, and attorney fees Although plaintiff teacher contends the trial court erred by denying plaintiff relief despite having found that defendant community college terminated her employment solely based upon her disability, this issue is remanded for an evidentiary hearing to determine the amount of damages, costs, and attorney fees that should be awarded to plaintiff in accordance with N.C.G.S. § 168A-11 and McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995), because: (1) although after-acquired evidence of pre-discharge employee misconduct will not bar a discrimination claim under the North Carolina Persons with Disabilities Protection Act, such evidence may be used to bar the specific remedy of reinstatement if the employer establishes that it would have made the same employment decision had it known of the misconduct at the time of the discharge; and (2) if an employer can show that its discovery of the employee’s predischarge misconduct was inevitable and independent of its employment decision, back pay shall be limited to the time between the discharge and the time of discovery. Appeal by plaintiff from judgment entered 12 September 2001 by Judge Howard E. Manning, Jr. in Durham County Superior Court. Heard in the Court of Appeals 22 January 2003. Glenn, Mills & Fisher, P.A., by Stewart W. Fisher, for plaintiff-appellant. Haywood, Denny & Miller, L.L.P., by George W. Miller, III and George W. Miller, Jr., for defendant-appellee. The North Carolina Academy of Trial Lawyers, by Lynn Fontana, and the American Civil Liberties Union of North Carolina, by Seth H. Jaffe, amicus curae. STEELMAN, Judge. This appeal arises out of a disability discrimination claim filed by Susan F. Johnson (“plaintiff’ or “Johnson”) against the Trustees of Durham Technical Community College (“defendant” or “Durham Tech”) under the North Carolina Persons with Disabilities Protection Act (“NCPDPA”), N.C. Gen. Stat. § 168A-1, et seq. (2001). Plaintiff appeals the trial court’s judgment dismissing her claim with prejudice and awarding her no costs, attorney’s fees or other relief. For reasons stated herein, the judgment is reversed, and this case is remanded to the trial court. Since contracting polio as a young child, plaintiff has been unable to walk without crutches, and her physical activity has been substantially limited. In 1986, after teaching full-time for several years, plaintiff’s disability forced her to quit working on a full-time basis, although she remained able to teach on a part-time basis. In 1993, plaintiff began working with Durham Tech’s Adult and Basic Skills Department as a part-time instructor for the in-house education program for inmates of the Durham County Jail Annex (“the jail”). Russ Conley (“Conley”), program director for Durham Tech’s Adult and Basic Skills Department, contracted with plaintiff and supervised her work. Plaintiff taught classes which prepared inmates to take their high school equivalency exam under her first contract with Durham Tech from November 1993 to February 1994. She entered seven additional part-time teaching contracts with Durham Tech between February 1994 and June 1995. Each of these contracts was for a specific term determined by the duration of the class taught by plaintiff. Plaintiff initially was able to drive herself to and from work and to enter the jail using only her crutches. On 8 June 1994, plaintiff fell from her crutches as she attempted to open the security door to enter the jail and broke her back. Plaintiff applied for and received workers’ compensation benefits for her injuries resulting from this fall. While recovering, plaintiff did not return to work, and defendant found a replacement teacher to fulfill the remainder of plaintiff’s contract ending in August 1994. When plaintiff returned to work for defendant under a new contract in January 1995, she was confined to a wheelchair at all times. She used wheelchair-accessible public transportation to travel to and from work at the jail and taught classes from her wheelchair. Although jail guards occasionally escorted plaintiff and helped her open doors, she generally was able to enter the jail and her classroom without assistance. On 11 February 1995, plaintiff fell in the bathtub at her home and broke her leg. She returned to work at the jail approximately two weeks later and resumed her teaching duties from her wheelchair. In the spring of 1995, Art Clark (“Clark”), Dean of Adult and Continuing Education at Durham Tech, and Ruth Lewis (“Lewis”), Conley’s direct supervisor, discussed with Conley their concerns about plaintiffs safety and Durham Tech’s liability if she were to suffer another accident at the jail. Conley also had some concerns at this time about plaintiff’s prior absenteeism due to her injuries. Clark encouraged Conley to speak with plaintiff and to consider whether it would be appropriate for her to continue working at the jail in light of her previous fall. On 16 June 1995, Conley met with plaintiff and discussed with her other teaching opportunities with Durham Tech that were not at the jail. Plaintiff was “not receptive” to these other teaching positions. Conley then informed plaintiff that “the situation had proved to be a liability for Durham Tech” and that she would not be returning to work for defendant at the jail. Conley testified that Clark had made the decision not to re-hire plaintiff and that Lewis had concurred with this decision. Between 21 June and 24 June 1995, Clark received anonymous phone calls alleging that plaintiff was a frequent drug user, had engaged in sexual relationships with prisoners, had provided prisoners with drugs and bullets and frequently carried a loaded weapon. On 26 June 1995, Conley spoke to plaintiff at the jail and informed her that her teaching position with Durham Tech would end when her contract expired on 28 June 1995. Defendant did not offer her another teaching position. Plaintiff filed discrimination charges against defendant with the North Carolina Department of Labor under the North Carolina Retaliatory Employment Discrimination Act (“REDA”), N.C. Gen. Stat. § 95-240, et seq. (2001), and with the Equal Employment Opportunity Commission under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (2002). After exhausting her administrative remedies, plaintiff filed a complaint alleging defendant refused to re-hire her in violation of REDA and the ADA. On 23 December 1997, Durham County Superior Court Judge Henry V. Barnette partially granted defendant’s motion for summary judgment and dismissed plaintiff’s REDA claim. On 18 December 1998, Durham County Superior Court Judge Narley L. Cashwell granted defendant’s motion for directed verdict as to plaintiff’s ADA claim. Plaintiff appealed both the summary judgment and directed verdict rulings. A unanimous panel of this Court affirmed Judge Barnette’s order granting defendant’s summary judgment motion based on plaintiff’s retaliatory discharge claim under REDA, reversed Judge Cashwell’s decision directing a verdict based on plaintiff’s ADA claim and remanded the case for further proceedings consistent with its opinion. Johnson v. Trustees of Durham Tech. Cmty. Coll., 139 N.C. App. 676, 535 S.E.2d 357 (“Johnson I”), disc. review denied and appeal dismissed, 353 N.C. 265, 546 S.E.2d 102 (2000). Plaintiff amended her complaint to add a claim under the NCPDPA alleging defendant failed to re-hire her on the basis of her disability in violation of N.C. Gen. Stat. § 168A-5(a)(l). On 29 May 2001, plaintiff and defendant filed a stipulation in which plaintiff voluntarily dismissed her claims under the ADA and defendant waived the statute of limitations defense to plaintiff’s claim under the NCPDPA. This matter was tried without a jury in accordance with N.C. Gen. Stat. § 168A-ll(a). On 12 September 2001, Durham County Superior Court Judge Howard E. Manning, Jr., filed a judgment dismissing plaintiff’s action with prejudice. The judgment contained lengthy findings of fact and conclusions of law, including the following: During the [s]pring of 1995, Conley became concerned about Johnson’s safety in the jail, and also became concerned about whether he was putting Ms. Johnson in a situation which might prove to be a liability for [Durham Tech]. Conley’s concern was “prompted” as a result of discussions with either Ruth Lewis or Dean Art Clark during the spring of 1995. Neither Lewis nor Clark went to the jail or conducted an investigation first hand with respect to Johnson’s ability to function safely in a wheelchair while carrying out her teaching responsibilities. In the spring[] [of] 1995[,] Conley, after talking with Dean Clark and/or Lewis, broached the subject with Johnson about teaching elsewhere than at the jail. Johnson did not want to teach elsewhere [,] and Conley did not push the issue. Dean Clark and Lewis wanted Johnson out of the jail environment and wanted her to teach elsewhere for Durham Tech. Their view was “paternalistic” and not based on an investigation into the conditions at the jail or Johnson’s ability to teach there despite her disability. While Dean Clark did not order Conley to move Johnson from the jail and put her somewhere else, he strongly “suggested” it to Conley. They [Dean Clark and Lewis] left the unpleasant task of carrying out the “suggestion” . . . and the placement of Johnson in a teaching position outside of jail to Conley. The decision of Clark to be carried out by Conley was made solely on the basis of Johnson’s disability and was not based on poor job performance or absences occasioned by her disability or health. On June 16, 1995, Conley met with Johnson at his office to discuss Johnson’s teaching at the jail. . . . Conley was not going to offer Johnson a contract that would permit her to remain and teach at the jail. The basis for Conley’s decision was that his superiors at Durham Tech were concerned about “liability” should Johnson continue to teach there. This concern was based solely upon her disability and was without basis in fact. The jail was no more “unsafe” for Johnson than any other place because she was able to function at the facility safely and to do her job there as she had done since January 1995, without incident. The decision to not offer Johnson another contract to teach a[t] the jail had been made as of June 16, 1995, but not implemented or carried out, as the contract period had not expired and there was still time for Johnson to attempt to get Durham Tech to reverse its decision. Conley, her immediate supervisor and department head, was not going to offer her a contract to teach at the jail after the present contract expired. (emphasis added). I. In her first assignment of error, plaintiff contends that the trial court erred in failing to apply the United States Supreme Court decision in McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 130 L. Ed. 2d 852 (1995), to her employment discrimination claim under the NCPDPA. In McKennon, the employee claimed she was discharged by her employer in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. 621, et seq. (1988 and Supp. V). McKennon, 513 U.S. at 354-55, 130 L. Ed. 2d at 859. During the course of discovery in the discriminatory discharge action, McKennon’s employer learned that she had copied confidential company documents prior to her discharge. Id. at 355, 130 L. Ed. 2d at 859. McKennon’s employer stated that if it had known of her misconduct, it would have discharged her for that reason. Id. The Sixth Circuit Court of Appeals held that McKennon’s prior misconduct was a lawful basis for her termination and affirmed the trial court’s granting of summary judgment in favor of the employer. Id. A unanimous United States Supreme Court reversed, deciding McKennon’s ADEA claim in the context of its prior discrimination decision in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471 (1977). The Mt. Healthy Court found that the employer had two motives for firing the employee, one lawful and the other unlawful. Id. at 285, 50 L. Ed. 2d at 482. The Court held that if the lawful reason alone would have sufficed to justify the firing, then the employee could not prevail on a claim against the employer based upon the unlawful motive. Id. at 285-86, 50 L. Ed. 2d at 482-83. The McKennon Court held that unlike Mt. Healthy, there was no “mixed motive” on the part of McKennon’s employer at the time she was discharged. McKennon, 513 U.S. at 359, 130 L. Ed. 2d at 862. McKennon’s misconduct was not discovered until after she had been fired. The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason. Mixed-motive cases are inapposite here, except to the important extent they underscore the necessity of determining the employer’s motives in ordering the discharge, an essential element in determining whether the employer violated the federal anti-discrimination law. Id. at 359-60, 130 L. Ed. 2d at 862 (emphasis added). Thus, evidence of McKennon’s misconduct discovered after her discharge, which would have provided a lawful basis for such discharge if discovered earlier, did not bar her discrimination claim under the ADEA. The McKennon Court noted that the ADEA was part of a “wider statutory scheme to protect employees” which included Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (2002), and the ADA. Id. at 357, 130 L. Ed. 2d at 860. Since the decision, the McKennon rule has been widely adopted in the context of employment discrimination cases under various statutes. See, e.g., O’Neal v. City of New Albany, 293 F.3d 998 (7th Cir. 2002) (finding that employer’s belated discovery that applicant exceeded the position’s statutory age maximum would not bar an ADA claim); Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001) (applying McKennon’s after-acquired evidence rule to unapproved absences in a Family and Medical Leave Act case); Crapp v. City of Miami Beach Police Dept., 242 F.3d 1017 (11th Cir. 2001) (applying McKennon to employee’s Title VII race discrimination claim); Russell v. Microdyne Corp., 65 F.3d 1229 (4th Cir. 1995) (applying McKennon to Title VII gender discrimination claim); Ricky v. Mapco, Inc., 50 F.3d 874 (10th Cir. 1995) (holding after-acquired evidence of sexual misconduct no bar to age discrimination claim); Garrett v. Langley Federal Credit Union, 121 F. Supp. 2d 887 (E.D. Va. 2000) (applying McKennon to federal whistleblowers’ statute). Several states also have adopted the McKennon rule, applying it to their own discrimination statutes. See, e.g., Toyota Motor Mfg., U.S.A., Inc. v. Epperson, 945 S.W.2d 413 (Ky. 1997) (disability discrimination under the Kentucky Civil Rights Act); Wright v. Restaurant Concept Management, 532 N.W.2d 889 (Mich. Ct. App. 1995) (discrimination under Michigan civil rights statute); Baber v. Greenville County, 488 S.E.2d 314 (S.C. 1997) (discrimination under state whistleblower’s statute); Norwood v. Litwin Eng’rs & Constructors, 962 S.W.2d 220 (Tex. App. 1998) (disability discrimination under Texas Commission on Human Rights Act); Barlow v. Hester Industries, Inc., 479 S.E.2d 628 (W. Va. 1996) (retaliatory discharge under West Virginia Human Rights Act). In Johnson I, this court expressly adopted the McKennon rule in the context of plaintiff’s original claim under the ADA. Johnson I, 139 N.C. App. at 685, 535 S.E.2d at 364 (“[a]n employer may not rely on evidence of employee misconduct which is acquired after the employment decision in question to defend the employment decision.”) To determine whether the McKennon rationale should apply to the NCPDPA, we look to the provisions of the statute to ensure that McKennon is consistent with its purpose and content. The NCPDPA is the North Carolina equivalent of the ADA, sharing the common purpose of providing protection against disability discrimination. 42 U.S.C. § 12101(b); N.C. Gen. Stat. § 168A-2. Both statutes contain rules regarding discriminatory employment practices against disabled persons. The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment.” 42 U.S.C. § 12112(a). Similarly, the NCPDPA states that “[i]t is a discriminatory practice for: (1) An employer to fail to hire or consider for employment or promotion, to discharge, or otherwise to discriminate against a qualified person with a disability on the basis of a disabling condition with respect to compensation or the terms, conditions, or privileges of employment.” N.C. Gen. Stat. § 168A-5(a)(l). The ADA and the NCPDPA also contain similar remedial provisions, including those for injunctive relief and back pay awards. 42 U.S.C. § 2000e-5(g) (2002) (providing the remedial guidelines for ADA claims); N.C. Gen. Stat. § 168A-11. N.C. Gen. Stat. § 168A-12 provides that “[a] civil action regarding employment discrimination brought pursuant to [Chapter 168A] shall be commenced within 180 days after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct.” Thus, a cause of action under the NCPDPA accrues when the employee becomes aware of or should have become aware of the employer’s wrongful conduct. This is consistent with McKennon, which focuses on the intent of the employer at the time of the alleged discriminatory act. McKennon, 513 U.S. at 360, 130 L. Ed. 2d at 862. We find nothing in the purpose or content of the NCPDPA that is inconsistent with or contrary to the McKennon rule. Therefore, as this Court in Johnson I adopted McKennon under the analogous ADA provisions, we also find that the McKennon rule should be adopted in the context of claims under the NCPDPA. In applying McKennon to plaintiffs appeal in the instant case, this Court is bound by the trial court’s findings which are supported by competent evidence, even if evidence exists to sustain contrary findings. Fulcher v. Golden, 147 N.C. App. 161, 554 S.E.2d 410 (2001). Our review of the trial court’s conclusions of law is de novo. Browning v. Helff, 136 N.C. App. 420, 524 S.E.2d 95 (2000). As n

LEE WOODBURN, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent No. COA02-262 (Filed 18 March 2003) 1. Appeal and Error— briefs — motion to strike appendix A motion to strike an appendix to a brief was granted by the Court of Appeals where the appendix contained various State Personnel Commission and administrative law judge opinions that had not been agreed upon by the parties as part of the record, had not been submitted pursuant to a motion to amend the record, and were not necessary to the resolution of the issues in the case. 2. Administrative Law— dismissal of claim — standard of review — de novo De novo review was the proper standard for the trial court to use when reviewing an administrative law judge’s dismissal of a claim as untimely. 3. Administrative Law— exempt position — employment discrimination claim — no OAH jurisdiction A university employee in an exempt position bringing a discrimination claim did not have a right to a hearing before the Office of Administrative Hearings. N.C.G.S. § 126-16 (employment discrimination) applies to all state employees without regard to position or status, but that statute neither addresses procedural avenues nor entitles a petitioner to choose a review scheme from which she is otherwise excluded by N.C.G.S. § 126-5. Exempt university employees have available review procedures which begin with university grievance committees and lead to review by a superior court judge and an appellate court. Appeal by petitioner from order entered 3 December 2001 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 16 October 2002. McSurely & Osment, by Ashley Osment, for petitioner-appellant. Attorney General Roy Cooper, by Assistant Attorney General Joyce Rutledge, for respondent-appellees. LEVINSON, Judge. Petitioner (Lee Woodburn) appeals from an order dismissing her petition for a contested case hearing before the Office of Administrative Hearings (OAH). We affirm. Petitioner was hired by respondent North Carolina State University (the university) in August, 2000, as assistant director of the university’s Office of Disability Services for Students. Shortly after accepting the position, petitioner learned that she was pregnant. Due to medical complications from her pregnancy, petitioner missed work for most of October and November, 2000. On 19 December 2000, the university sent petitioner a certified letter informing her that she was being fired, and giving her 30 days notice. Petitioner received the letter on 2 January 2001, and on 16 February 2001, she filed a petition with OAH for a contested case hearing against the university. She alleged that she was terminated by the university without just cause, and that her termination was due to illegal discrimination based on gender and on a handicapping condition (pregnancy). The university moved to dismiss the petition for lack of subject matter jurisdiction, alleging that (1) OAH lacked jurisdiction over petitioner’s “just cause” claim, because petitioner was not a career state employee and therefore the “just cause” provisions of N.C.G.S. § 126-35(a) were inapplicable to her, and; (2) OAH lacked jurisdiction over petitioner’s discrimination grievance, because it was brought under Article 8 of Chapter 126, from which EPA non-faculty professional positions at the university were expressly exempted. The Administrative Law Judge (ALJ) dismissed petitioner’s “just cause” claim, which is not before this Court. However, the ALJ denied respondent’s motion to dismiss the discrimination claim, concluding that Chapter 126 afforded petitioner the right to bring her discrimination claim before the OAH. Respondent then filed a new motion to dismiss petitioner’s claim as untimely filed. The ALJ granted this motion, from which petitioner sought review in superior court. Respondent cross-excepted to the ALJ’s denial of its motion to dismiss the discrimination claim. On 3 December 2001, the trial court affirmed the dismissal of petitioner’s contested case for lack of subject matter jurisdiction, on the grounds that her OAH petition was untimely. The court also concluded that petitioner’s assertion of a right under Article 8 of Chapter 126 to bring a contested case before the OAH was “unavailing,” although it did not enter an order expressly ruling on this issue. Plaintiff appealed from the trial court’s order, while respondent cross-assigned as error the trial court’s failure to rule on the issue of OAH jurisdiction over discrimination claims brought by EPA employees. On 13 March 2002, petitioner filed a petition for discretionary review by the North Carolina Supreme Court, seeking to bypass this Court. Her petition was denied on 4 April 2002. We first address respondent’s motion to strike petitioner’s appendix. The Record on Appeal was settled 11 February 2002. In April, 2002, petitioner served her brief on respondent, consisting of 35 pages of text, and a 71 page “appendix” containing various SPC and AU opinions. On 10 May 2002, respondent filed a motion to strike the appendix. Respondent argues that the petitioner violated N.C.R. App. P. 9 and 28, by filing documents that were neither agreed on by the parties to be part of the record, nor submitted by petitioner to this Court pursuant to a motion to amend the record. We agree. Further, we do not find the materials in the proposed appendix necessary to our resolution of the issues presented herein. Respondent’s motion to strike appendix is therefore granted. Standard of Review Petitioner appealed to the trial court from the ALJ’s pre-hearing dismissal of her claim as untimely. “An order of the ALJ issued pursuant to a written pre-hearing motion granting a party’s requested relief for failure of the other party to comply with procedural requirements is a final decision . . . entitling petitioner] to immediate judicial review[.]” Lincoln Cty. DSS v. Hovis, 150 N.C. App. 697, 700, 564 S.E.2d 619, 621 (2002). Judicial review of administrative agency decisions is governed by the North Carolina Administrative Procedure Act (APA), Chapter 150B of the N.C. General Statutes. N.C.G.S. § 150B-43 (2001) (“[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision . . .”). N.C.G.S. § 150B-51(b) (2001) authorizes the trial court to reverse or modify an agency’s final decision if “substantial rights” of the petitioner may have been prejudiced because the agency’s findings, inferences, conclusions, or decisions were: (1) In violation of constitutional provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (3)Made upon unlawful procedure; (4) Affected by other error of law; (5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or (6) Arbitrary [or] capricious. . . . N.C.G.S. § 150B-51(b). “The standard of review employed by the reviewing court is determined by the type of error asserted; errors of law are reviewed de novo, while the ‘whole record’ test is applied to allegations that the administrative agency decision was not supported by the evidence, or was arbitrary and capricious.” Zimmerman v. Appalachian State Univ., 149 N.C. App. 121, 129, 560 S.E.2d 374, 379-80 (2002) (citing Amanini v. N. C. Dept. of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114 (1994)). “De novo review requires a court to consider the question anew, as if the agency has not addressed it.” Blalock v. N.C. Dep’t of Health and Human Servs., 143 N.C. App. 470, 475-76, 546 S.E.2d 177, 182 (2001). Under the whole record test, “ ‘the reviewing court [must] examine all competent evidence (the ‘whole record’) in order to determine whether the agency decision is supported by “substantial evidence.’ ” ACT-UP Triangle v. Commission for Health Senices, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118). In the instant case, the trial court stated that it was applying de novo review, which we conclude was the proper standard of review. We next determine whether the trial court correctly applied de novo review. Petitioner argues that the trial court erred by holding that Article 8 of Chapter 126 of the North Carolina General Statutes is inapplicable to petitioner. We disagree. Chapter 126 of the General Statutes governs the State Personnel System. The scope of the chapter’s authority is set out in N.C.G.S. § 126-5 (2001), which states that “[t]he provisions of this Chapter shall apply to [a]ll State employees not herein exempt[.]” G.S. § 126-5(a)(l) (emphasis added). The statute further states that: (c) Except as to . . . Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to: (1) A State employee who is not a career State employee as defined by this Chapter. . . . (cl) Except as to the provisions of Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to:. . . . (8) Instructional and research staff, physicians, and dentists of The University of North Carolina. N.C.G.S. § 126-5(c)(l) and (d)(8) (2001). Petitioner is not a “career state employee,” as the term is defined by N.C.G.S. § 126-1.1 (an employee of the State who is “in a permanent position appointment” and who has held “a position subject to the State Personnel Act for the immediate 24 preceding months”). Further, her position is classified as “instructional and research staff ... of the University of North Carolina.” Petitioner is therefore exempt from the ambit of Chapter 126 by either of the statutory criteria. Moreover, the university expressly categorizes her position as “EPA” or “exempt from SPA.” Indeed, petitioner concedes her status as an EPA employee, and characterizes the dispositive issue in this case as “whether EPA employees can ever bring contested cases.” We conclude that petitioner’s position, as a university EPA employee, is explicitly exempted from Chapter 126, with the sole exception of Articles 6 and 7. Article 6 of Chapter 126 sets out the State policy regarding discrimination in employment. Petitioner’s claim alleges a violation of a provision of Article 6, N.C.G.S. § 126-16 (2001), which provides in relevant part that “[a]ll State departments and agencies . . . shall give equal opportunity for employment and compensation, without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition. . . [.]” Article 6 applies to petitioner and, like any other state employee without regard to position or status, she is entitled to enforce the rights implicated by G.S. § 126-16. However, G.S. § 126-16 neither addresses which procedural avenues are available to particular categories of state employees, nor entitles petitioner to choose a review scheme from which she is otherwise excluded. “ ‘[W]here one statute deals with certain subject matter in particular terms and another deals with the same subject matter in more general terms, the particular statute will be viewed as controlling in the particular circumstances absent clear legislative intent to the contrary.’ ” Bryant v. Adams, 116 N.C. App. 448, 457, 448 S.E.2d 832, 836-37 (1994) (quoting State Ex Rel. Utilities Comm. v. Thornburg, 84 N.C. App. 482, 353 S.E.2d 413, disc. review denied, 320 N.C. 517, 358 S.E.2d 533 (1987)), disc. review denied, 339 N.C. 736, 454 S.E.2d 647 (1995). Our Court in Conran v. New Bern Police Dept., 122 N.C. App. 116, 468 S.E.2d 258 (1996) previously held: N.C.G.S. § 126-5 states in particular terms which employees are covered by Chapter 126. On the other hand, N.C.G.S. § 126-16 . . . address[es] the same subject matter in general terms. Moreover,.. . N.C.G.S. § 126-16 ... [does not] affirmatively grant[] a remedy to a[n] . . . employee . . . who is not otherwise covered by Chapter 126. In short, N.C.G.S. § 126-5 controls which employees are subject to Chapter 126. The petitioner is not within that class of employees. Id. at 119, 468 S.E.2d at 260 (emphasis added). We find Conran applicable to the present case, and reiterate that the exemptions in N.C.G.S. § 126-5 foreclose petitioner’s reliance on any of the provisions in Chapter 126, except for Articles 6 and 7. Notwithstanding N.C.G.S. § 126-5, petitioner asserts a right to a hearing before the OAH on a provision of Article 8 of Chapter 126, N.C.G.S. § 126-34.1, which states in pertinent part that: A State employee or former State employee may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B ... as to the following personnel actions or issues . . . [a]n alleged unlawful State employment practice constituting discrimination, as proscribed by G.S. 126-36, including . . . termination of an employee . . . on account of the employee’s . . . sex, ... or handicapping condition^] N.C.G.S. § 126-34.1(a)(2)(b) (2001). Petitioner essentially argues that, because the statute refers to state employees without adding “except those already exempted,” that all state employees are included. She urges this Court “construe” Article 6, § 126-16, with § 126-34.1(a)(2), and to hold that § 126-34.1 applies to all state employees, including those expressly excluded from the purview of Chapter 126. Petitioner’s proposed construction of the statute would require us to ignore the plain and definite exclusion of petitioner’s job from Chapter 126. This we decline to do. Further, we disagree with petitioner that there is any “inconsistency” between G.S. § 126-34 and G.S. § 126-5; the legislature, having specifically excluded various classes of state employees from all of Chapter 126 except Articles 6 and 7, in N.C.G.S. § 126-5, had no need to repeat the same list of excluded employees in other parts of Chapter 126. This Court has previously ruled on this issue, and rejected the position taken by petitioner. In Hillis v. Winston-Salem State Univ., 144 N.C. App. 441, 549 S.E.2d 556 (2001), a non-faculty EPA university employee sought redress for alleged grievances through the OAH. The plaintiff filed a contested case with the OAH, based on G.S. § 126-34.1. The Court noted that N.C.G.S. § 126-5(cl)(8) specifically exempts the “ [instructional and research staff ... of the University of North Carolina” from all “provisions of [Chapter 126 except] Articles 6 and 7” and that, like the present petitioner, the plaintiffs position was exempt from the SPA. This Court held: while N.C.G.S. § 126-16 is in Article 6 and therefore is applicable to otherwise exempt University of North Carolina employees, N.C.G.S. § 126-34.1 is in Article 8 and therefore is explicitly not applicable. It follows that OAH lacks jurisdiction to hear a contested case brought under Article 8 by exempt employees of the University of North Carolina[.] ... As our Court has stated, ‘[i]f the Legislature desired to establish a public policy entitling [UNC faculty] to the protection [of the grievance procedures] of G.S., Chap. 126, it could have done so.’ Hillis at 443-44, 549 S.E.2d at 557 (quoting Walter v. Vance County, 90 N.C. App. 636, 641, 369 S.E.2d 631, 634 (1988)). Hillis is on point, and controls the resolution of the present case. Petitioner asks this Court to reverse our decision in Hillis. This we may not do. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”). Nor do we agree with petitioner that Hillis should be reversed. Petitioner argues that in Hillis, this Court “with one fatal stroke” effectively “stripped” employees of their right to a hearing on “discrimination in the workplace,” and “transformed the substantial rights guarded by Article 6 for a quarter of a century to a mirage [.]” Petitioner’s assertions ignore the review procedures available to her as an EPA employee of the university. These include: (1) a hearing before a University grievance committee; (2) opportunity to respond in writing to the Chancellor’s preliminary decision; (3) appeal from the Chancellor’s decision to the Board of Trustees of NCSU; (4) appeal to Board of Governors from the Board of Trustees; (5) judicial review by a superior court judge; and (6) appeal to this Court. Thus, it is apparent that a university EPA employee is not without recourse in the event of discrimination. We conclude that, because N.C.G.S. § 126-5(cl)(8) expressly exempts petitioner from all of Chapter 126 except Articles 6 and 7, that the trial court did not err by holding that Article 8 of Chapter 126 does not apply to her. This assignment of error is overruled. Petitioner also argues that the trial court erred by concluding that she had not timely filed her contested case claim. However, as we conclude that petitioner had no right to a contested case hearing before the OAH, the issue of the timeliness of her petition need not be addressed. We hold that the OAH does not have jurisdiction over employees whose positions or departments are statutorily excluded from its reach. Because petitioner’s position as an EPA employee of the University of North Carolina is exempt from the SPA, Article 8 of Chapter 126 is inapplicable to her, and OAH has no subject matter jurisdiction to consider her contested case. ■ For the reasons discussed above, the order entered by the trial court affirming the ALJ’s dismissal of her contested case claim is Affirmed. Judges McGEE and HUDSON concur.