NO. COA14-178

NORTH CAROLINA COURT OF APPEALS

Filed: 16 December 2014

ERIC TUCKER,

Plaintiff

v. Cumberland County

No. 13 CVS 2946

FAYETTEVILLE STATE UNIVERSITY and 

JAMES A. ANDERSON, Chancellor,

Defendants

Appeal by plaintiff from order entered 8 November 2013 by 

Judge Lucy Inman in Cumberland County Superior Court. Heard in 

the Court of Appeals 13 August 2014.

McGeachy, Hudson & Zuravel, by Donald C. Hudson, for 

plaintiff-appellant.

Attorney General Roy Cooper, by Special Deputy Attorney 

General Kimberly D. Potter, for defendant-appellees.

CALABRIA, Judge.

Plaintiff Eric Tucker (“plaintiff”) appeals from an order 

dismissing his complaint with prejudice and, alternatively, 

granting Fayetteville State University’s (“FSU”) and University 

Chancellor James A. Anderson’s (“Anderson”) (collectively, 

“defendants”) motion for summary judgment. We affirm.

Plaintiff had a written employment contract and had been 

employed as the head coach of the FSU women’s basketball team 
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for sixteen years. During plaintiff’s tenure, he never had any 

negligent evaluations, reprimands, or warnings. According to 

plaintiff, he always executed his duties in an exemplary manner.

In April 2009, FSU’s Department of Police and Public Safety 

(“FSU DPPS”) investigated allegations regarding plaintiff’s 

inappropriate language towards team members, assault on a team 

member, and threats to terminate team members’ athletic 

scholarships. As a result of FSU DPPS’s report, Anderson 

decided there were grounds for termination. FSU subsequently 

informed plaintiff that he could either resign his position or 

FSU would begin the process of terminating his employment. In a 

letter dated 21 April 2009, plaintiff notified the FSU athletic 

director of his decision to retire. On 1 July 2009, plaintiff 

did in fact retire, even though his contract did not expire

until 30 June 2010. 

On 23 December 2009, plaintiff filed a complaint against 

defendants seeking compensatory damages for breach of contract,

alleging FSU lacked just cause to terminate his employment and 

forced him to resign against his will. Defendants filed a 

motion to dismiss. On 22 April 2010, the trial court granted 

defendants’ motion and dismissed the action with prejudice 

pursuant to Rule 12(b)(6). On appeal, this Court reversed the 
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dismissal. After the case was remanded, plaintiff voluntarily 

dismissed that complaint without prejudice. 

On 12 April 2013, plaintiff timely refiled his complaint 

against defendants, alleging, inter alia, that defendants 

breached his employment contract because defendants lacked just 

cause to terminate his employment and forced him to resign 

against his will. Plaintiff alleged that “the grievance system 

set up by the Defendants does not allow for the Plaintiff to 

receive the compensatory damages to which he is entitled based 

upon the alleged breach of contract and the resulting damage to 

the Plaintiff’s ability to engage in his profession.” 

Defendants subsequently filed a motion to dismiss pursuant to 

N.C.R Civ. P. 12(b)(1) and 12(b)(2) on the grounds that 

plaintiff failed to exhaust his administrative remedies and 

sovereign immunity. Defendants also included a motion for 

summary judgment on the grounds that there was no genuine issue 

of material fact with respect to the breach of plaintiff’s 

employment contract. On 8 November 2013, the trial court 

entered an order dismissing plaintiff’s complaint with prejudice 

and in the alternative granted defendants’ motion for summary 

judgment. Plaintiff appeals. 
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On appeal, plaintiff argues that the trial court erred in 

granting both defendants’ motion to dismiss the complaint and 

defendants’ motion for summary judgment. We disagree.

“An action is properly dismissed under Rule 12(b)(1) for 

lack of subject matter jurisdiction where the plaintiff has 

failed to exhaust administrative remedies. An appellate court’s 

review of such a dismissal is de novo.” Johnson v. Univ. of 

N.C., 202 N.C. App. 355, 357, 688 S.E.2d 546, 548 (2010) 

(citations and quotations omitted).

“Any party or person aggrieved by the final decision in a 

contested case, and who has exhausted all administrative 

remedies made available to the party or person aggrieved by 

statute or agency rule, is entitled to judicial review of the 

decision[.]” N.C. Gen. Stat. § 150B-43 (2013). The actions of 

the University of North Carolina and its constituent 

institutions are subject to the judicial review procedures of 

N.C. Gen. Stat. § 150B-43. Huang v. N.C. State University, 107 

N.C. App. 710, 713, 421 S.E.2d 812, 814 (1992). Since FSU is a 

constituent institution of the University of North Carolina

pursuant to N.C. Gen. Stat. § 116-4 (2013), any action taken is 

subject to specific review procedures. “Because no statutory 

administrative remedies are made available to employees of the 

University [of North Carolina], those who have grievances with 
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the University have available only those administrative remedies 

provided by the rules and regulations of the University and must 

exhaust those remedies before having access to the courts.” 

Huang, 107 N.C. App. at 713-14, 421 S.E.2d at 814. “Therefore, 

before a party may ask the courts for relief from a University 

decision: (1) the person must be aggrieved; (2) there must be a 

contested case; and (3) the administrative remedies provided by 

the University must be exhausted.” Id. at 714, 421 S.E.2d at 

814. Additionally, “the complaint should be carefully 

scrutinized to ensure that the claim for relief is not inserted 

for the sole purpose of avoiding the exhaustion rule.” Id. at 

715, 421 S.E.2d at 816 (citation omitted). 

As an initial matter, the correct procedure for seeking 

review of an administrative decision is to file a petition in 

court, explicitly stating the exceptions taken to the 

administrative decision. Id. at 715, 421 S.E.2d at 815. “The 

burden of showing the inadequacy of the administrative remedy 

is on the party claiming the inadequacy, and the party making 

such a claim must include such allegation in the complaint.” Id. 

(citations omitted). “In order, however, to rely upon futility 

or inadequacy, allegations of the facts justifying avoidance of 

the administrative process must be pled in the complaint.” 

Justice for Animals, Inc. v. Robeson Cty., 164 N.C. App. 366, 
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372, 595 S.E.2d 773, 777 (2004) (citation and internal quotation 

marks omitted). 

In the instant case, according to plaintiff’s employment 

contract, plaintiff was “subject to Fayetteville State 

University’s Employment Policies for Personnel Exempt from the 

State Personnel Act” (the “employment policies”). The 

employment policies are incorporated by reference and include 

grievance policies and procedures for employees to secure review 

of decisions concerning discharge or termination of employment.

Therefore, plaintiff was entitled to all of the procedures 

available in the employment policies. Those procedures 

included, inter alia, a written grievance to the Director of 

Human Resources, a hearing before a grievance committee, and 

ultimately review of the grievance by the University of North 

Carolina Board of Governors. Once plaintiff completed that 

process, he would have been entitled to judicial review of the 

decision pursuant to N.C. Gen. Stat. § 150B-43. 

Nevertheless, plaintiff elected not to pursue any of the 

administrative remedies available to him, arguing that the 

administrative remedies provided by FSU were so inadequate that 

he essentially had no effective administrative remedies. 

Plaintiff contends that due to his unique position as a 

basketball coach, the outcome of any administrative remedy 
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“would have been so unfair to the team and the coach as to 

render such procedures virtually meaningless.” Specifically, 

plaintiff contends that, as a basketball coach, proceeding with 

an administrative remedy would cause damage to the basketball 

team, and “a coach who has formed close bonds with the players 

on his team could not be reasonably expected to damage the team 

in that manner.” 

Plaintiff correctly relies on Huang for the proposition 

that he was not required to exhaust his administrative remedies 

“when the only remedies available from the agency are shown to 

be inadequate.” Huang, 107 N.C. App. at 715, 421 S.E.2d at 815

(citation omitted). Huang, as a tenured professor, filed a 

complaint in superior court seeking compensatory damages rather 

than pursuing administrative remedies, believing them to be 

inadequate. Id. at 712, 421 S.E.2d at 814. Plaintiff, like 

Huang, is an aggrieved party in a contested case. Unlike Huang, 

plaintiff supports his argument with his loyalty to the 

basketball team. However, plaintiff provides no authority to 

support his contention that his loyalty to the basketball team

satisfies his burden of showing the inadequacy of the 

administrative remedy. Since plaintiff submitted a letter 

indicating his decision to retire rather than requesting a 

hearing, then filed a complaint, plaintiff not only failed to 
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meet his burden of showing that the administrative remedies were 

inadequate, but also essentially avoided the exhaustion rule. 

Therefore, the trial court lacked subject matter jurisdiction 

and properly dismissed plaintiff’s complaint. Since we find 

that the trial court properly granted defendants’ motion to 

dismiss because plaintiff failed to carry his burden of proving 

that the administrative remedies available to him were 

inadequate, and therefore failed to exhaust his administrative 

remedies, we do not reach the issue of sovereign immunity.

Although plaintiff also argues that the trial court erred 

in granting defendants’ motion for summary judgment, since the 

trial court lacked subject matter jurisdiction, we need not 

address plaintiff’s remaining arguments. The trial court 

properly dismissed plaintiff’s complaint with prejudice. We 

therefore affirm the order of the trial court.

Affirmed.

Judges ELMORE and STEPHENS concur.