§ 126-34.1. Grounds for contested case under the State Personnel Act defined.
§ 126‑34.1. Grounds forcontested case under the State Personnel Act defined.
(a) A State employee orformer State employee may file in the Office of Administrative Hearings acontested case under Article 3 of Chapter 150B of the General Statutes only as tothe following personnel actions or issues:
(1) Dismissal, demotion,or suspension without pay based upon an alleged violation of G.S. 126‑35,if the employee is a career State employee.
(2) An alleged unlawfulState employment practice constituting discrimination, as proscribed by G.S.126‑36, including:
a. Denial of promotion,transfer, or training, on account of the employee's age, sex, race, color,national origin, religion, creed, political affiliation, or handicappingcondition as defined by Chapter 168A of the General Statutes.
b. Demotion, reductionin force, or termination of an employee in retaliation for the employee'sopposition to alleged discrimination on account of the employee's age, sex,race, color, national origin, religion, creed, political affiliation, orhandicapping condition as defined by Chapter 168A of the General Statutes.
(3) Retaliation againstan employee, as proscribed by G.S 126‑17, for protesting an allegedviolation of G.S. 126‑16.
(4) Denial of theveteran's preference granted in accordance with Article 13 of this Chapter ininitial State employment or in connection with a reduction in force, for aneligible veteran as defined by G.S. 126‑81.
(5) Denial of promotionfor failure to post or failure to give priority consideration for promotion orreemployment, to a career State employee as required by G.S. 126‑7.1 andG.S. 126‑36.2.
(6) Denial of anemployee's request for removal of allegedly inaccurate or misleadinginformation from the employee's personnel file as provided by G.S. 126‑25.
(7) Any retaliatorypersonnel action that violates G.S. 126‑85.
(8) Denial of promotionin violation of G.S. 126‑14.2, where an initial determination foundprobable cause to believe there has been a violation of G.S. 126‑14.2.
(9) Denial of employmentin violation of G.S. 126‑14.2, where an initial determination foundprobable cause to believe that there has been a violation of G.S. 126‑14.2.
(10) Harassment in theworkplace based upon age, sex, race, color, national origin, religion, creed, orhandicapping condition, whether the harassment is based upon the creation of ahostile work environment or upon a quid pro quo.
(11) Violation of any ofthe following federal statutes as applied to the employee:
a. The Fair LaborStandards Act, 29 U.S.C. § 201, et seq.
b. The AgeDiscrimination in Employment Act, 29 U.S.C. § 621, et seq.
c. The Family MedicalLeave Act, 29 U.S.C. § 2601, et seq.
d. The Americans withDisabilities Act, 42 U.S.C. § 12101, et seq.
(b) An applicant forinitial State employment may file in the Office of Administrative Hearings acontested case under Article 3 of Chapter 150B of the General Statutes basedupon:
(1) Alleged denial ofemployment in violation of G.S. 126‑16.
(2) Denial of theapplicant's request for removal of allegedly inaccurate or misleadinginformation from the personnel file as provided by G.S. 126‑25.
(3) Denial of equalopportunity for employment and compensation on account of the employee's age,sex, race, color, national origin, religion, creed, political affiliation, orhandicapping condition as defined by Chapter 168A of the General Statutes. Thissubsection with respect to equal opportunity as to age shall be limited topersons who are at least 40 years of age. An applicant may not, however, file acontested case where political affiliation was the reason for the person'snonselection for (i) an exempt policymaking position as defined in G.S. 126‑5(b)(3),(ii) a chief deputy or chief administrative assistant position under G.S. 126‑5(c)(4),or (iii) a confidential assistant or confidential secretary position under G.S.126‑5(c)(2).
(4) Denial of theveteran's preference in initial State employment provided by Article 13 of thisChapter, for an eligible veteran as defined by G.S. 126‑81.
(5) Denial of employmentin violation of G.S. 126‑14.2, where an initial determination foundprobable cause to believe that there has been a violation of G.S. 126‑14.2.
(c) In the case of adispute as to whether a State employee's position is properly exempted from theState Personnel Act under G.S. 126‑5, the employee may file in the Officeof Administrative Hearings a contested case under Article 3 of Chapter 150B ofthe General Statutes.
(d) A State employee orapplicant for State employment may file in the Office of AdministrativeHearings a contested case under Article 3 of Chapter 150B of the GeneralStatutes based upon a false accusation regarding, or disciplinary actionrelating to, the employee's alleged violation of G.S. 126‑14 or G.S. 126‑14.1.
(e) Any issue for whichappeal to the State Personnel Commission through the filing of a contested caseunder Article 3 of Chapter 150B of the General Statutes has not beenspecifically authorized by this section shall not be grounds for a contestedcase under Chapter 126. (1995, c. 141, s. 7; 1997‑520, s. 4; 1998‑135, s. 3; 2001‑467,s. 2.)