A North Carolina state appeals court affirmed the ruling of a trial court, dismissing the claim of the former head football coach at North Carolina Central University (NCCU), who claimed the school breached his contract when it fired him.
In so ruling, the court found that the claim of plaintiff Henry Frazier, III, was subject to the Administrative Procedure Act (APA), which requires the exhaustion of administrative remedies.
Frazier was employed at NCCU as head football coach, pursuant to a contract for a five-year period, beginning 1 January 2011 and continuing through 31 December 2015. The terms of Frazier’s contract provided that his position was “designated as employment at will and therefore governed by the common law of the State of North Carolina and not by any statutory SPA (State Personnel Act) or EPA (Exempt Personnel Act) policies or procedures.” The contract further provided that NCCU could terminate Frazier’s employment for just cause, which was defined in pertinent part to include “any conduct by (Frazier) which constitutes moral turpitude, which would constitute a criminal offense under North Carolina law, or which would tend to bring public disrespect, contempt or ridicule upon (NCCU). Any discipline under this subsection shall not violate the due process rights of (Frazier] to defend himself against false and/or malicious prosecution or accusations.”
In the event of any disciplinary action against Frazier, section 3.2 of the contract required NCCU’s Director of Athletics to give him notice of and an opportunity to respond to any allegations against him, as well as written notice of any subsequent disciplinary decisions and the right to request a review of such decisions by NCCU’s Chancellor.
On 14 May 2012, Frazier was arrested and charged with misdemeanor assault on a female following a domestic incident involving his spouse, and a protective order was entered against him. Frazier was initially placed on administrative leave from NCCU. After entering into a deferred prosecution agreement with the Wake County District Attorney, Frazier was allowed to return to his position at NCCU provided he fully comply with the conditions of his prayer for judgment. At that time, NCCU’s Chancellor issued Frazier a formal letter of reprimand and notified him that any additional incidents of this kind would be cause for more severe disciplinary actions, up to and including dismissal.
On 19 August 2013, Frazier was arrested for violating the aforementioned protective order. That same day, NCCU’s Director of Athletics, Dr. Ingrid Wicker-McCree notified Frazier by letter that he was suspended with full pay while NCCU collected additional information regarding his arrest. On 22 August 2013, after meeting with Frazier and providing him an opportunity to respond to the allegations against him, Wicker-McCree notified Frazier by letter of her decision to terminate his employment. In her letter, Wicker-McCree explained:
“It is my intent to discharge you for behavior that has brought public disrespect, contempt and ridicule upon (NCCU), the Department of Intercollegiate Athletics and the football program.
“During our meeting, you provided me with your position regarding your performance as Head Coach and outlined your achievements to date. You also indicated that while you understood (NCCU’s) concerns regarding these matters, you did not believe that these issues have had a negative impact on your job performance or your ability to lead the program. During our discussion, it became clear to me that you did not have an appreciation of the impact these types of behaviors, your arrest and the resulting negative publicity can and have had on our student athletes, the program and (NCCU). This was especially disturbing, in light of the fact that you were severely reprimanded for similar behaviors in July 2012. Your recent arrest for violation of a domestic protective order, stemming from your May 2012 arrest, . . . has once again generated local, regional and national media stories and opinions that have harmed the reputation of (NCCU) and our athletics program.”
Frazier appealed the decision, but, according to the defendants, failed to follow the proper path outlined in the APA.
He ultimately filed a complaint in Durham County Superior Court against NCCU and the Board of Governors of the University of North Carolina seeking compensatory and punitive damages for breach of contract, wrongful discharge in violation of public policy, and breach of the covenant of good faith and fair dealing.
On June 5, 2014, NCCU filed a motion to dismiss all of Frazier’s claims pursuant to Rule 12(b)(1), (2), and (6) of the North Carolina Rules of Civil Procedure based on sovereign immunity, lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted, given the fact that Frazier failed to exhaust his administrative remedies under our APA and also failed to allege in any of his complaints that the available administrative procedures and remedies were inadequate. On August 25, 2014, the court granted the defendants’ motion and dismissed Frazier’s claims with prejudice. Frazier appealed.
The appeals court noted that the scope of its review in the present case “focuses not on the merits of Frazier’s claim but instead on the threshold issue of whether the trial court erred in granting NCCU’s motion to dismiss.”
Frazier argued that the trial court erred in dismissing his complaint because: “(1) his contract did not require him to exhaust administrative remedies available under the APA; (2) NCCU waived its sovereign immunity by entering into the contract with him; and (3) by pleading all the elements of a claim for breach of contract, his complaint adequately alleged that any available administrative remedies were inadequate.”
On the first point, the court sided with the defendants, noting that NCCU’s general counsel “explicitly warned” the plaintiff in a letter and advised him “to obtain local counsel familiar with our State’s laws. Given that neither the express language of Frazier’s contract nor the October 11, 2013 letter suggested that the APA was inapplicable, and in light of well-established precedent, we conclude this argument is without merit.”
As to whether NCCU “waived its sovereign immunity by entering into a contract with him,” thus voiding the requirement that he “exhaust administrative remedies,” the court was similarly unmoved.
“Given that the facts, procedural posture, and arguments raised on appeal in the present case are virtually identical to those at issue in Huang v. N.C. State Univ., 107 N.C. App. 710, 713, 421 S.E.2d 812, 814 (1992), we cannot escape the conclusion that our decision in Huang must control the result we reach here,” wrote the court. “Here, as in Huang, a constituent member of the UNC system is being sued by a former employee who seeks compensatory and punitive damages in an action for breach of contract. Like the plaintiff in Huang, Frazier failed to file a petition for judicial review … before filing his complaint in superior court. We therefore conclude that here, as in Huang, Frazier has failed to exhaust his available administrative remedies.”
Finally, the court examined Frazier’s argument that “the trial court erred in dismissing his claim because his available administrative remedies were inadequate in light of the compensatory and punitive damages he sought in his complaint for breach of contract.”
The appeals court, after an extensive review of applicable case law, disagreed with the plaintiff, noting that because he “failed to exhaust his available administrative remedies pursuant to section 150B-43, and also failed to adequately allege that those remedies were inadequate, the trial court did not err in dismissing his complaint.”
Henry Frazier, III v. North Carolina Central University, by and through The University Of North Carolina; Ct. App. N.C.; No. COA15-23, 2015 N.C. App. LEXIS 957; 11/17/15
Attorneys of Record: (for plaintiff) Law Offices of F. Bryan Brice, Jr., by Matthew D. Quinn. (for defendants) Attorney General Roy Cooper, by Special Deputy Attorney General Kimberly D. Potter.
