Hunt v. N.C. Dep't of Pub. Safety ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1244
Filed: 19 June 2018
Office of Administrative Hearings, No. 17 OSP 1269
JEFFREY HUNT, Petitioner,
v.
N.C. DEPARTMENT OF PUBLIC SAFETY, Respondent.
Appeal by respondent from orders entered 5 April 2017, 17 August 2017, and
28 August 2017 by Administrative Law Judge Melissa Owens Lassiter in the Office
of Administrative Hearings. Heard in the Court of Appeals 16 May 2018.
Law Offices of Michael C. Byrne, by Michael C. Byrne, for petitioner-appellee.
Attorney General Joshua H. Stein, by Assistant Attorney General Tamika L.
Henderson, for respondent-appellant.
DAVIS, Judge.
In this case, a state agency refused to allow an employee to return to work on
the ground that he had resigned from his employment. When the employee
attempted to file a grievance in which he denied that he had, in fact, resigned, the
agency refused to consider the grievance, and the employee filed a petition for a
contested case hearing in the North Carolina Office of Administrative Hearings
(“OAH”). An administrative law judge ruled in favor of the employee and ordered
that he be reinstated to his former position. Because we hold that no legally effective
HUNT V. N.C. DEP’T OF PUB. SAFETY
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resignation occurred and the agency lacked just cause to terminate his employment,
we affirm.
Factual and Procedural Background
In November 2016, Jeffrey Hunt was a career status state employee who
worked for the North Carolina Department of Public Safety (“DPS”) as a correctional
officer at Scotland Correctional Institution. During the summer of 2016, Hunt
received two warnings about his tardiness and absenteeism.
On 2 November 2016, Hunt’s unit manager, Queen Gerald, asked him to report
to the prison before his shift began the following day. At 5:27 p.m. on 3 November
2016, Hunt entered the facility and met with Gerald in an administration area room.
Gerald informed him that she was investigating his alleged absence from work on 18
August 2016 and asked him to sign paperwork regarding the absence. Hunt informed
Gerald that he would not sign documents regarding an absence for which he had no
recollection. He became upset and walked out of the prison through the main door.
Gerald later testified that she heard Hunt say either “I quit” or “I’m quitting”
as he walked away. Hunt denied making such a statement. An individual in the
vicinity recalled hearing Hunt state: “I’m tired of this s[***].”
Hunt left the prison without “swiping out,” and Gerald informed the officer-in-
charge that Hunt had resigned. Several minutes later, Hunt tried to re-enter the
prison to begin working his shift but was denied entry by the officer-in-charge.
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On 4 November 2016, Hunt attempted to contact Superintendent Katy Poole
by telephone to discuss his job status but learned that she was on vacation. Poole
returned to the office on 7 November 2016, and an assistant superintendent informed
her that Hunt had verbally resigned to Gerald.
On 9 November 2016, Poole spoke with Hunt by telephone. Hunt inquired
whether “he could return to work.” Poole asked him if he was rescinding his
resignation to which Hunt responded: “Yes.” Poole informed him that she had already
accepted his verbal resignation and that she was unwilling to rescind it based on “his
history of pending investigations and corrective actions” as well as his behavior
toward Gerald during the 3 November 2016 incident.
That same day, Hunt received a letter from DPS confirming that he had
resigned on 3 November 2016. The letter did not contain any information about his
ability to appeal the separation of his employment. On 21 November 2016, DPS
received a letter from Hunt in which he stated that “at no time during my
conversation with Mrs. Gerald (Unit Manager) on 11/3/2016 did I give a resignation.”
On 20 January 2017, Hunt submitted a Step 1 grievance letter to DPS’s
Grievance Intake Office. DPS notified Hunt by letter on 14 February 2017 that his
internal grievance could not be processed by the agency because he had resigned from
his employment.
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On 22 February 2017, Hunt filed a petition for a contested case hearing in
OAH. DPS moved to dismiss the petition on 24 March 2017 based on lack of subject
matter jurisdiction. In its motion, DPS asserted that Hunt had “failed to exhaust the
internal agency grievance process” and “failed to file his grievance within fifteen (15)
days of the event pursuant to DPS policy.”
On 5 April 2017, Administrative Law Judge Melissa Owens Lassiter (the
“ALJ”) entered an order denying DPS’s motion to dismiss. A hearing was held before
the ALJ on 15 June 2017.
On 17 August 2017, the ALJ issued a Final Decision pursuant to N.C. Gen.
Stat. § 150B-34 in which she determined that Hunt had “never submitted a verbal
statement of resignation to any DPS employee authorized to accept it.” The ALJ
concluded that DPS had, therefore, acted unlawfully by terminating Hunt’s
employment without just cause. The ALJ ordered that Hunt be reinstated to the
same — or a similar — position held by him prior to his separation and that he receive
back pay and attorneys’ fees.
On 22 August 2017, Hunt filed a petition for attorneys’ fees, which the ALJ
granted in an order entered 28 August 2017 (the “Attorneys’ Fees Order”) awarding
him $11,720.00 in attorneys’ fees and $20.00 in filing fees. DPS filed a timely notice
of appeal as to the 5 April 2017 order, the Final Decision, and the Attorneys’ Fees
Order.
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Analysis
On appeal, DPS contends that the ALJ erred by (1) denying its motion to
dismiss Hunt’s contested case petition for lack of jurisdiction; (2) concluding that the
separation of Hunt from his employment resulted from a discharge rather than a
voluntary resignation; and (3) awarding attorneys’ fees to Hunt. We address each
argument in turn.
I. Subject Matter Jurisdiction of OAH
DPS’s first argument is that the ALJ improperly denied DPS’s motion to
dismiss because OAH did not possess subject matter jurisdiction over Hunt’s appeal.
DPS contends that jurisdiction was lacking because Hunt failed to properly follow the
mandatory grievance procedure required under North Carolina law before filing a
contested case petition in OAH. Hunt, conversely, asserts that because DPS refused
to consider his grievance the agency made it impossible for him to follow the grievance
procedure.
“Our standard of review of a motion to dismiss for lack of [subject matter]
jurisdiction . . . is de novo.” Brown v. N.C. Dep’t of Pub. Safety, __ N.C. App. __, __,
808 S.E.2d 322, 324 (2017) (citation and quotation marks omitted), disc. review
denied, __ N.C. __, 811 S.E.2d 589 (2018). “Under de novo review, the Court considers
the matter anew and freely substitutes its own judgment for that of the trial court.”
Id. at __, 808 S.E.2d at 324 (citation and quotation marks omitted).
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In order to assess DPS’s arguments, it is necessary to review the pertinent
statutes that apply to these facts. Prior to 2013, the statutory scheme governing
personnel actions against State employees was known as the State Personnel Act.
“In 2013, our General Assembly significantly amended and streamlined the
procedure governing state employee grievances and contested case hearings,
applicable to cases commencing on or after 21 August 2013.” Harris v. N.C. Dep’t of
Pub. Safety, __ N.C. App. __, __, 798 S.E.2d 127, 131, aff’d per curiam, __ N.C. __, 808
S.E.2d 142 (2017). The revised set of statutes remains codified in Chapter 126 of the
North Carolina General Statutes but is now called “the North Carolina Human
Resources Act.”
N.C. Gen. Stat. § 126-35(a) sets out the procedure by which a career state
employee may appeal disciplinary action taken against him and states as follows:
(a) No career State employee subject to the North
Carolina Human Resources Act shall be discharged,
suspended, or demoted for disciplinary reasons, except for
just cause. In cases of such disciplinary action, the
employee shall, before the action is taken, be furnished with
a statement in writing setting forth the specific acts or
omissions that are the reasons for the disciplinary action
and the employee’s appeal rights. The employee shall be
permitted 15 days from the date the statement is delivered
to appeal to the head of the agency through the agency
grievance procedure for a final agency decision. However,
an employee may be suspended without warning for causes
relating to personal conduct detrimental to State service,
pending the giving of written reasons, in order to avoid
undue disruption of work or to protect the safety of persons
or property or for other serious reasons. If the employee is
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not satisfied with the final agency decision or is unable,
within a reasonable period of time, to obtain a final agency
decision, the employee may appeal to the Office of
Administrative Hearings. Such appeal shall be filed not
later than 30 days after receipt of notice of the final agency
decision. The State Human Resources Commission may
adopt, subject to the approval of the Governor, rules that
define just cause.
N.C. Gen. Stat. § 126-35(a) (2017) (emphasis added). “In order for the OAH to have
jurisdiction over [a] petitioner’s appeal pursuant to N.C. Gen. Stat. §[ ] 126-35 . . . ,
[the] petitioner is required to follow the statutory requirements outlined in Chapter
126 for commencing a contested case.” Nailing v. UNC-CH, 117 N.C. App. 318, 324,
451 S.E.2d 351, 355 (1994) (citation omitted), disc. review denied, 339 N.C. 614, 454
S.E.2d 255 (1995).
N.C. Gen. Stat. § 126-34.01 establishes a grievance procedure that employees
are generally required to follow in situations involving a discharge, suspension, or
demotion.
Any State employee having a grievance arising out of or
due to the employee’s employment shall first discuss the
problem or grievance with the employee’s supervisor,
unless the problem or grievance is with the supervisor.
Then the employee shall follow the grievance procedure
approved by the State Human Resources Commission. The
proposed agency final decision shall not be issued nor
become final until reviewed and approved by the Office of
State Human Resources. The agency grievance procedure
and Office of State Human Resources review shall be
completed within 90 days from the date the grievance is
filed.
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N.C. Gen. Stat. § 126-34.01 (2017).
“Once a final agency decision is issued, a potential, current, or former State
employee may appeal an adverse employment action as a contested case pursuant to
the method provided in N.C. Gen. Stat. § 126-34.02 . . . .” Harris, __ N.C. App. at __,
798 S.E.2d at 131. N.C. Gen. Stat. § 126-34.02(a) states, in relevant part, as follows:
(a) Once a final agency decision has been issued in
accordance with G.S. 126-34.01, an applicant for State
employment, a State employee, or former State
employee may file a contested case in the Office of
Administrative Hearings under Article 3 of Chapter
150B of the General Statutes. The contested case
must be filed within 30 days of receipt of the final
agency decision. . . . In deciding cases under this
section, the Office of Administrative Hearings may
grant the following relief:
(1) Reinstate any employee to the position from
which the employee has been removed.
(2) Order the employment, promotion, transfer, or
salary adjustment of any individual to whom it
has been wrongfully denied.
(3) Direct other suitable action to correct the abuse
which may include the requirement of payment
for any loss of salary which has resulted from
the improper action of the appointing
authority.
An aggrieved party in a contested case under this section
shall be entitled to judicial review of a final decision by
appeal to the Court of Appeals as provided in G.S. 7A-29(a).
The procedure for the appeal shall be as provided by the
rules of appellate procedure. The appeal shall be taken
within 30 days of receipt of the written notice of final
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decision. A notice of appeal shall be filed with the Office of
Administrative Hearings and served on all parties to the
contested case hearing.
N.C. Gen. Stat. § 126-34.02(a) (2017).
This Court recently held that “[w]hile Chapter 126 is silent on the issue,
Chapter 150B, the Administrative Procedure Act, specifically governs the scope and
standard of this Court’s review of an administrative agency’s final decision.” Harris,
__ N.C. App. at __, 798 S.E.2d at 132. Chapter 150B of the North Carolina General
Statutes states, in pertinent part, the following:
The court reviewing a final decision may affirm the
decision or remand the case for further proceedings. It may
also reverse or modify the decision if the substantial rights
of the petitioners may have been prejudiced because the
findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction
of the agency or administrative law judge;
(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, capricious, or an abuse of discretion.
N.C. Gen. Stat. § 150B-51(b) (2017).
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Having reviewed the applicable provisions of the Human Resources Act, we
must next apply them to the facts of the present case. DPS contends that OAH lacked
jurisdiction over this action for two reasons. First, it argues that N.C. Gen. Stat.
§ 126-35(a) does not apply to Hunt because his employment with DPS ended as a
result of his own voluntary resignation rather than from a discharge. Second, it
contends that the Step 1 grievance letter submitted by Hunt was untimely in that he
was required to submit a grievance within fifteen days of receiving the 9 November
2016 letter confirming his resignation but did not actually do so until 20 January
2017.
Hunt, in turn, asserts that (1) he did not resign and was instead effectively
discharged from his employment with DPS; and (2) because he was never provided
by DPS with a statement of his appeal rights, the deadline for his filing of a Step 1
grievance was never triggered. Furthermore, he argues, his OAH petition for a
contested case hearing was timely because it was filed within thirty days of DPS’s l4
February 2017 letter stating its refusal to consider his grievance.
A. Validity of Alleged Resignation
In order to untangle the jurisdictional knot that exists in this case, we must
first determine whether Hunt resigned or was discharged. This is so because the
nature of the parties’ respective obligations under the Human Resources Act hinges
on the answer to this question.
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Pursuant to 25 N.C.A.C. 1C.1002,
[a]n employee may terminate his services with the state by
submitting a resignation to the appointing authority.
25 N.C.A.C. 1C.1002 (2016) (emphasis added).
The pertinent findings of fact made by the ALJ on this issue stated as follows:
7. Around 5:27 p.m. on November 3, 2016,
[Hunt] reported to work and entered the facility. He and
Ms. Gerald met in the lobby of the prison, and then stepped
into an administration area room. Ms. Gerald informed
[Hunt] that she was investigating [Hunt]’s alleged absence
from work on August 18, 2016, and asked [Hunt] to sign a
disciplinary form about [Hunt]’s alleged absence from work
on that date. [Hunt] advised Ms. Gerald that he did not
recall being absent from work on August 18, 2016, and he
wasn’t going to sign paperwork about an absence for which
he had no recollection. [Hunt] became upset, and loud.
[Hunt] stated, “I’m tired of this s[***].” [Hunt] made that
statement, because he was tired of being accused of
wrongdoing, was written up recently . . . , and because he
was upset that he was being investigated for an absence
from work that occurred three months prior. [Hunt]
walked through the main door of the prison towards the
gatehouse as night shift staff gathered in the lobby for the
night shift line-up.
8. Per Ms. Gerald’s testimony at hearing, [Hunt]
said either “I quit,” or “I’m quitting,” as he walked out the
administration area door. . . .
9. In contrast, [Hunt] consistently denied telling
Ms. Gerald that “I quit” on November 3, 2016, in [Hunt]’s
November 21, 2016 request for a hearing . . . , his internal
appeal . . . , and at the contested case hearing.
10. On November 3, 2016, [Hunt] walked out of
the prison through the gatehouse without swiping out at
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the security check point. Ms. Gerald advised the Officer-
in-Charge, Captain Delgado, that [Hunt] had stated he
quit, and walked out of the prison facility.
....
14. While Ms. Gerald was a unit manager, she
was not [Hunt]’s supervisor in any capacity, and did not
have the authority to accept a resignation from [Hunt], or
have the authority to terminate a correctional officer’s
employment.
....
17. On November 9, 2016, Superintendent Poole,
along with Assistant Superintendent Dean Locklear,
telephoned [Hunt], and spoke with [Hunt] via the speaker
phone in Ms. Poole’s office. Poole advised [Hunt] that
Locklear was present and witnessing the call. Poole asked
[Hunt] what could she do for him. [Hunt] asked if he could
return to work. Poole told [Hunt] that she understood that
he had verbally informed Ms. Gerald that he had quit when
she questioned him about an internal investigation.
[Hunt] asked again if he could return to work. Poole asked
[Hunt] if he was requesting her to rescind his resignation,
and [Hunt] replied, “Yes.” Poole advised [Hunt] that, after
reviewing his history of pending investigations and
corrective actions, and based on his behavior toward Ms.
Gerald when Gerald questioned him about the
investigation, she accepted his verbal resignation and
would not rescind his resignation. . . .
....
19. On November 10, 2016, Ms. Poole completed
a Correctional Officer Separation Information form
showing [Hunt]’s effective date of separation as November
4, 2016. She wrote the following as the reason and
circumstances surrounding [Hunt]’s separation:
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Verbal Resignation
Spoke with Ofr. Hunt on 11/9/16 accepted his verbal
resignation. Ofr. Hunt had several . . . allegations of
misconduct that were being investigated.
....
22. There was no evidence presented at hearing
that [Hunt] resigned, either verbally or otherwise, to any
DPS employee who was authorized to accept a resignation
from [Hunt] on November 3, 2016. Ms. Gerald was the only
person who testified at hearing that [Hunt] stated he was
quitting his job. Ms. Gerald was not [Hunt]’s direct
supervisor, did not work with [Hunt], and did not have
much direct interaction with [Hunt], as Gerald worked the
day shift, and [Hunt] worked the night shift. In direct
contrast, [Hunt] denied telling Ms. Gerald, “I quit.” [Hunt]
attempted to return to the workplace on November 3, 2016
before his shift started, but [DPS] refused to allow him to
do so per Capt. Delgado’s orders. The fact that [Hunt]
knew about Capt. Delgado’s orders corroborated [Hunt]’s
account that he attempted to return to work on November
3, 2016.
23. At hearing, neither Superintendent Poole nor
Asst. Superintendent Locklear testified that [Hunt] said he
quit his job during their November 9, 2016 telephone
conversation. Instead, [Hunt] informed Poole that he
wanted to go back to work.
....
26. The preponderance of the evidence at hearing
proved that [DPS] involuntarily separated [Hunt] from
employment on November 3, 2016, as opposed to a
voluntary resignation by [Hunt], when Superintendent
Poole refused to allow [Hunt] to return to work. Ms. Poole
admitted that her “acceptance” of [Hunt]’s “resignation”
was based upon [Hunt]’s pending investigation and past
corrective actions, and [Hunt]’s behavior toward Ms.
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Gerald when Gerald questioned him about the
investigation. By basing her “acceptance” of [Hunt]’s
alleged “resignation” on [Hunt]’s pending investigation and
past corrective actions, Ms. Poole’s decision to deny [Hunt]
to return to work became a disciplinary action against
[Hunt]’s employment under NCGS 126-35, without first
following the disciplinary procedures required by Chapter
126 of the North Carolina General Statutes. . . .
Based on our review of these findings, it is clear that the ALJ did not resolve
the factual dispute arising from the testimony of the witnesses as to whether or not
Hunt actually stated to Gerald that he was quitting. It is the duty of an ALJ as the
finder of fact in OAH proceedings to resolve material facts that are in dispute. Harris,
__ N.C. App. at __, 798 S.E.2d at 137 (“As the sole fact-finder, the ALJ has both the
duty and prerogative to determine the credibility of the witnesses, the weight and
sufficiency of their testimony, to draw inferences from the facts, and to sift and
appraise conflicting and circumstantial evidence.” (citation and quotation marks
omitted)). We agree, however, with the ALJ’s implicit determination that a resolution
of this issue was not necessary because even taking as true Gerald’s testimony that
Hunt stated he was quitting, such a statement would not have amounted to a legally
effective resignation.
As noted above, 25 N.C.A.C. 1C.1002 requires that resignations be submitted
to the “appointing authority.” Our appellate courts have not yet had the opportunity
to consider the meaning of the term “appointing authority” as it is used in 25 N.C.A.C.
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1C.1002. Moreover, neither the North Carolina Administrative Code nor our General
Statutes define the term.
In construing this term, we must first look to the plain meaning of these words.
Britt v. N.C. Sheriffs’ Educ. & Training Standards Comm’n, 348 N.C. 573, 576, 501
S.E.2d 75, 77 (1998) (“When the language of regulations is clear and unambiguous,
there is no room for judicial construction, and courts must give the regulations their
plain meaning.” (citation omitted)). “In the absence of a contextual definition, courts
may look to dictionaries to determine the ordinary meaning of words . . . .” Perkins
v. Ark. Trucking Servs., 351 N.C. 634, 638, 528 S.E.2d 902, 904 (2000) (citation
omitted).
The word “appoint” is defined as “to name or select officially for an office,
position, etc.” Webster’s New World College Dictionary 69 (4th ed. 2010). “Authority”
is defined as “persons, esp[ecially] in government, having the power or right to enforce
orders, laws, etc.” Id. at 95. Thus, on these facts, we deem it appropriate to construe
the phrase “appointing authority” in 25 N.C.A.C. 1C.1002 as referring to the person
or persons who have the power to make personnel decisions at Scotland Correctional
Institution.
Such a definition is consistent with the usage of this term in Title 25 of the
Administrative Code as referring to persons who initiate personnel actions against
State employees. See, e.g. 25 N.C.A.C. 1J.0604 (2016) (“Any employee, regardless of
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occupation, position or profession may be warned, demoted, suspended or dismissed
by the appointing authority.” (emphasis added)).
At the 15 June 2017 hearing, Gerald testified as follows:
[COUNSEL:] . . . Do you have the authority, that you
know of, to independently hire an employee?
[GERALD:] No, I do not.
[COUNSEL:] Do you have the authority, to your
knowledge, to independently fire an employee?
[GERALD:] I do not have that authority either.
....
[COUNSEL:] . . . As a part of this investigation, were you
or were you not given the specific authority to accept his
resignation?
[GERALD:] No, I was not.
Thus, Gerald’s testimony demonstrates that she lacked the authority to make
hiring and firing decisions as to employees at the prison. This means that she cannot
be deemed to have been the “appointing authority” pursuant to 25 N.C.A.C. 1C.1002,
which — in turn — leads to the conclusion that Gerald had no legal authority to
accept Hunt’s resignation.
Although the parties agree that Poole would qualify as the “appointing
authority” based on her position as superintendent at Scotland Correctional
Institution, the record is devoid of any indication that Hunt ever informed Poole that
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he wished to resign. Indeed, to the contrary, the undisputed testimony was that he
told her he wished to continue working at the prison during their conversation on 9
November 2016.
Thus, because Gerald had no authority to accept Hunt’s resignation, Hunt did
not submit a legally effective resignation even if Gerald’s testimony as to the words
he used during their 3 November 2016 encounter is accepted as true. As a result,
Hunt’s separation from employment constituted an involuntary discharge rather
than a voluntary resignation.
B. Compliance With Grievance Process
Having determined that Hunt was discharged by DPS, we must still address
whether — as DPS claims — his appeal to OAH was untimely on the ground that his
grievance letter was not submitted within fifteen days of the 9 November 2016 letter
stating that DPS had accepted his “resignation.” In response to this argument, Hunt
contends that (1) the fifteen-day deadline for submission of his grievance was never
triggered because DPS failed to furnish him with a statement of his appeal rights;
and (2) he was not required to complete the grievance procedure because DPS refused
to process his grievance.
As stated above, N.C. Gen. Stat. § 126-35(a) requires that “[i]n cases of
[discharge], the employee shall, before the action is taken, be furnished with a
statement in writing setting forth the specific acts or omissions that are the reasons
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for the disciplinary action and the employee’s appeal rights.” N.C. Gen. Stat. § 126-
35(a). Here, DPS does not dispute the fact that it never provided Hunt with a
statement of his appeal rights. Instead, it sent Hunt a letter stating that his 3
November 2016 resignation had been accepted by DPS. This letter contained no
information regarding his right to appeal that decision. Approximately twelve days
later, Hunt responded by letter to Poole in which he denied ever having resigned.
Even after receiving this letter that clearly put DPS on notice of Hunt’s disagreement
with the notion that he had resigned, DPS still did not inform him of his appeal rights.
Thus, DPS failed to comply with its statutory duty under N.C. Gen. Stat. § 126-
35(a). See, e.g., Nix v. Dep’t of Admin., 106 N.C. App. 664, 668, 417 S.E.2d 823, 827
(1992) (notification of appeal rights was required where petitioner took disability
retirement after being told he would be terminated because his resignation was not
voluntary). Accordingly, because no statement of appeal rights was ever sent to Hunt,
the fifteen-day time limit set out in N.C. Gen. Stat. § 126-35(a) for filing a grievance
was never triggered.
This Court has also refused to find that an employee’s appeal to OAH was
untimely in cases where the agency failed to send a valid notice of appeal rights to
the aggrieved employee. See, e.g., Early v. Cty. of Durham Dep’t of Soc. Servs., 172
N.C. App. 344, 357, 616 S.E.2d 553, 562 (2005) (because employee did not receive
notice of appeal rights as required by statute, petition for contested case hearing was
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timely filed and OAH possessed subject matter jurisdiction over employee’s appeal),
disc. review improvidently allowed, 361 N.C. 113, 637 S.E.2d 539 (2006); Gray v. Dep’t
of Env’t, Health & Nat. Res., 149 N.C. App. 374, 379, 560 S.E.2d 394, 398 (2002)
(because of incorrect listing of address of OAH in statement of appeal rights given to
employee, deadline for filing petition in OAH was not triggered); Jordan v. N.C. Dep’t
of Transp., 140 N.C. App. 771, 774-75, 538 S.E.2d 623, 625 (2000) (petitioner’s request
for contested case hearing was timely filed where agency’s statement of appeal rights
sent to her did not inform her of her right to contest the designation of her position
as “exempt policymaking,” the procedure for contesting the designation, or the time
limit for filing an objection to the designation), disc. review denied, 353 N.C. 376, 547
S.E.2d 412 (2001).1
In the present case, Hunt filed his petition in OAH within thirty days of the
date he received the letter from DPS refusing to process his grievance. Given DPS’s
stated refusal to allow Hunt to grieve his discharge, Hunt did not have a duty to take
any further steps pursuant to the grievance process. Instead, he was justified in filing
his petition in OAH at the time he did so. Accordingly, we reject DPS’s argument
that the ALJ erred in denying its motion to dismiss for lack of subject matter
jurisdiction.
1 While the cases cited above were decided before the General Assembly’s 2013 statutory
amendments, DPS has failed to direct our attention to any provision of the amendments that excuses
the failure of an agency to provide an employee with an adequate statement of his right to appeal an
adverse personnel action.
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Opinion of the Court
II. Absence of Just Cause
Having determined that Hunt did not resign and that the ALJ properly
concluded OAH possessed subject matter jurisdiction over his appeal, the only
remaining question is whether Hunt’s discharge was lawful. N.C. Gen. Stat. § 126-
35 states that “[n]o career State employee subject to the North Carolina Human
Resources Act shall be discharged, suspended, or demoted for disciplinary reasons,
except for just cause.” N.C. Gen. Stat. § 126-35(a). In order to discharge a state
employee, an agency must demonstrate the employee’s “unsatisfactory job
performance” or “unacceptable personal conduct.” 25 N.C.A.C. 1J.0604(b) (2016).
Our resolution of this issue requires no analysis at all. Neither at the OAH
proceeding nor in this appeal has DPS argued that it possessed just cause to
terminate Hunt’s employment. Instead, its entire argument has consistently hinged
on the notion that Hunt voluntarily resigned — a proposition that we have rejected.
Thus, we agree with the ALJ that Hunt’s discharge was not in accordance with North
Carolina law. Accordingly, we affirm the ALJ’s Final Decision.2
III. Award of Attorneys’ Fees
Finally, DPS argues that the ALJ erred by awarding attorneys’ fees to Hunt
because the award was issued (1) in a separate order despite the legal requirement
2To the extent that DPS’s appellate brief seeks to challenge other findings of fact made by the
ALJ, none of these additional findings are material to our analysis.
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Opinion of the Court
that the ALJ “dispose of all issues in a final decision;” and (2) before the expiration of
the ten-day period for DPS to respond to Hunt’s petition for fees.
As to its first argument, DPS has failed to cite any legal authority specifically
prohibiting an ALJ from awarding attorneys’ fees by means of a separate order after
issuing a final decision on the merits of the employee’s appeal. Thus, this argument
is overruled.
With regard to DPS’s second argument, it cites 25 N.C.A.C. 3.0115, which
states, in pertinent part, as follows: “Any application to the administrative law judge
for an order shall be by motion, which shall be in writing unless made during a
hearing, and must be filed and served upon all parties not less than ten days before
the hearing, if any, is to be held either on the motion or the merits of the case. The
nonmoving party shall have ten days from the date of service of the motion to file a
response.” 26 N.C.A.C. 3.0115 (emphasis added).
In its Final Decision, the ALJ directed Hunt to file a petition for attorneys’ fees
within ten days. Hunt proceeded to file such a petition on 22 August 2017. Six days
later, the ALJ issued an order requiring DPS to pay $11,720.00 in attorneys’ fees.
Even assuming — without deciding — that the ALJ should have allowed DPS ten
days in which to respond to Hunt’s petition, DPS has failed to show that it was
prejudiced by the ALJ’s failure to do so.
Appellate courts do not set aside verdicts and judgments
for technical or harmless error. It must appear that the
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Opinion of the Court
error complained of was material and prejudicial,
amounting to a denial of some substantial right. The
appellant thus bears the burden of showing not only that
an error was committed below, but also that such error was
prejudicial—meaning that there was a reasonable
possibility that, but for the error, the outcome would have
been different.
Faucette v. 6303 Carmel Rd., LLC, 242 N.C. App. 267, 274, 775 S.E.2d 316, 323 (2015)
(internal citations and quotation marks omitted).
In its brief, DPS has not asserted that the amount of attorneys’ fees awarded
was unreasonable or that the fees were not recoverable under applicable law. Thus,
because DPS has failed to show that it was actually harmed by the ALJ’s failure to
allow ten days for it to respond to Hunt’s petition, we dismiss this argument.
Conclusion
For the reasons stated above, we affirm.
AFFIRMED.
Judges DILLON and INMAN concur.
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