§ 126-14.4. Remedies.
§ 126‑14.4. Remedies.
(a) A State employee orapplicant for initial State employment who has reason to believe that he or shewas among the pool of the most qualified persons for a position in Stategovernment employment and was denied employment or promotion in violation ofG.S. 126‑14.2 because of political affiliation or political influence maycomplain directly through the Civil Rights Division of the Office ofAdministrative Hearings, which shall be responsible for making an initialdetermination of whether there is probable cause to believe that there has beena violation of G.S. 126‑14.2.
The complaining State employeeor applicant shall file a complaint with the Civil Rights Division of theOffice of Administrative Hearings within 30 days after the complainant receiveswritten notice that the position in question has been filled.
The Civil Rights Division ofthe Office of Administrative Hearings shall promptly make appropriate formaland informal inquiries in its investigatory, fact‑finding role and mayconsider any matter, document, or statement deemed pertinent to the initialdetermination, including telephone conversations, in determining if there isprobable cause to believe there has been a violation of G.S. 126‑14.2.The Civil Rights Division may apply to an administrative law judge in theOffice of Administrative Hearings for the issuance of oaths and subpoenas underG.S. 7A‑756. The investigation and fact‑finding phase of thecomplaint shall be completed by the Civil Rights Division within 30 days.
(b) The Civil RightsDivision of the Office of Administrative Hearings shall notify the personalleged to have been hired in violation of G.S. 126‑14.2 of the appeal,and the person may present any information to the Civil Rights Division that ispertinent to the initial determination of probable cause. The person alleged tohave been hired in violation of G.S. 126‑14.2 shall be notified of theresults of the initial determination and shall have a right to intervene in anyadministrative proceedings pursuant to G.S. 150B‑23(d).
(c) Upon an initialdetermination that there is probable cause to believe there has been aviolation of G.S. 126‑14.2, the complainant may file within 15 days apetition for a contested case pursuant to G.S. 126‑34.1 and Article 3 ofChapter 150B of the General Statutes.
(d) An initialdetermination by the Civil Rights Division that there is not probable cause tobelieve there has been a violation of G.S. 126‑14.2 shall be conclusiveof any rights under that section but shall not be admissible or binding in anyseparate or subsequent civil action or proceeding.
(e) Within 90 daysafter the filing of a contested case petition, the administrative law judgeshall issue a recommended decision to the State Personnel Commission which shallinclude findings of fact and conclusions of law and, if the administrative lawjudge has found a violation of G.S. 126‑14.2, an appropriate recommendedremedy.
(f) Within 60 days ofreceipt of the official record by the Office of Administrative Hearings, theState Personnel Commission shall make a final written decision as to whetherthere has been a violation of G.S. 126‑14.2. In any case where aviolation is found, the State Personnel Commission shall take suitable actionto correct the violation, which may include:
(1) Directing the Stateagency, department, or institution to declare the position vacant, and to hirefrom among the most qualified State employees or applicants for initial Stateemployment who had applied for the position, or
(2) Requiring that thevacancy be posted pursuant to this Chapter.
(g) A career Stateemployee with:
(1) Less than 10 yearsof service who was placed in an exempt managerial position, as defined by G.S.126‑5(b)(2), shall be given priority consideration for a position at thesame salary grade equal to that held in the most recent position before beingplaced in the exempt managerial position if he or she has to vacate because ofviolation of G.S. 126‑14.2.
(2) 10 or more years ofservice who was placed in an exempt managerial position, as defined by G.S. 126‑5(b)(2),shall be placed in a comparable position at the same grade and salary equal tothat held in the most recent position before being placed in the exemptmanagerial position if he or she had to vacate because of violation of G.S. 126‑14.2.(1997‑520,s. 2; 2006‑264, s. 12.)