Russell v. N.C. Dep't of Pub. Safety ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-209
No. COA21-482
Filed 5 April 2022
Wake County, No. 20 OSP 02154
CECIL JOHN RUSSELL, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Respondent.
Appeal by Respondent from order entered on 23 December 2020 by
Administrative Law Judge Melissa Owens Lassiter in the Office of Administrative
Hearings. Heard in the Court of Appeals 23 February 2022.
Jennifer J. Knox for Petitioner-Appellee.
Attorney General Joshua H. Stein, by Assistant Attorney General Adrina G.
Bass, for Defendant-Appellant.
JACKSON, Judge.
¶1 The North Carolina Department of Public Safety (“Respondent”) appeals from
a final decision in a contested case in the Office of Administrative Hearings (“OAH”).
We affirm the order of the administrative law judge (“ALJ”).
I. Background
¶2 On 12 November 2018, Cecil John Russell (“Petitioner”) was employed as a
corrections officer at Central Prison in Raleigh, North Carolina, when he suffered a
work-related injury. As a result of the injury, Petitioner was placed on a leave of
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absence. During his leave of absence, Petitioner received medical benefits and
disability compensation under North Carolina’s Workers’ Compensation Act.
¶3 On 5 July 2019, Petitioner was allowed to return to work in a light duty
position. The next month, however, he suffered a reinjury during his recertification
as a law enforcement officer. As a result of the reinjury, Petitioner was placed on
another leave of absence, and began to receive workers’ compensation benefits again.
¶4 On 17 January 2020, Petitioner requested job placement assistance from
Respondent. Ms. R. Hinton, a human resources professional employed by
Respondent, testified at the contested case hearing that when one of Respondent’s
employees is released from a physician’s care after a work-related injury with
permanent restrictions, an effort is made to locate a new position for the employee
where the employee can work in a full duty capacity. Ms. Hinton described the job
placement assistance process as follows: when an employee is released from a
physician’s care with permanent restrictions, meaning the employee cannot return to
the employee’s previous job at full duty, Respondent sends the employee a letter
confirming that the employee has reached maximum medical improvement but still
has a disability, and includes a blank employment application with the letter. The
employee then has 15 days to return the application, and after receiving the
completed application, Respondent conducts two job searches for the employee.
Respondent’s recruitment section determines the possible positions for which the
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employee is qualified based on the contents of the application, and then human
resources runs a report of vacant positions within a 50-mile radius of the employee.
Respondent runs two of these reports once a week during two consecutive weeks. If
no vacant position is located during these job searches, the employee is separated
from employment due to unavailability.
¶5 The job searches performed for Petitioner were unsuccessful. On 12 February
2020, Respondent sent Petitioner a Pre-Separation Letter. The Pre-Separation
Letter explained:
when an employee is on workers’ compensation leave of
absence, and the employee is unable to return to all of the
position’s essential duties as set forth in the employee’s job
description or designated work schedule due to a medical
condition or the vagueness of a medical prognosis, and the
employee and the agency are unable to reach agreement on
a return to work arrangement that meets both the needs of
the agency and the employee’s medical condition, a
separation may occur on the earliest of the following dates:
(i) after the employee has reached maximum medical
improvement for the work-related injury for which
the employee is on workers’ compensation leave of
absence and the agency is unable to accommodate
the employee’s permanent work restrictions related
to such injury; or
(ii) 12 months after the date of the employee’s work-
related injury.
The Pre-Separation Letter noted that Petitioner was informed on 28 January 2020
that “there were no suitable vacant positions available given [his] medical restrictions
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and qualifications[,]” and advised as follows:
Should you remain unavailable, prior to a recommendation
for your separation, you will be given the opportunity to
meet with me or propose in writing alternative methods of
accommodation to avoid this separation. If you would like
to meet, you should contact me at [redacted] by February
27, 2020. If you would like to submit your proposal in
writing, it should be received at this office by February 27,
2020.
If you remain unavailable after February 27, 2020, I will
recommend your separation from employment under the
provision of Separation Due to Unavailability[.] Such a
separation is an involuntary separation and not considered
disciplinary action.
¶6 After receiving the letter, Petitioner contacted his supervisor and requested
the meeting offered in the letter. Petitioner’s supervisor told him the meeting would
be pointless if he could not return to full duty work by the 27 February 2020 deadline.
Petitioner stated that he wanted to propose an alternative method of accommodation,
but needed assistance doing so. Instead of receiving any assistance or the opportunity
to meet with his supervisor, Petitioner was told taking either step would be futile.
¶7 On 3 March 2020, Respondent sent Petitioner a Letter of Separation informing
him that he was being separated from his employment due to unavailability. The
Letter of Separation described Petitioner’s appeal rights as follows:
If you are a “career State employee” (as defined in N.C.G.S.
§ 126-1.1) and wish to appeal this decision, you must do so
in writing within fifteen (15) calendar days. The appeal
must be submitted by using the Step 1 Grievance Filing
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Form HR 555. The appeal must be mailed to the Grievance
Intake Coordinator, Department of Public Safety, 512 N.
Salisbury Street, 4201 Mail Service Center, Raleigh, NC
27699-4201. As an alternative to mail, the appeal may be
mailed to [redacted e-mail address], or hand delivered to
the State Capitol Police, 417 N. Salisbury Street, Raleigh,
NC 27603, between the hours of 8:00 a.m. and 5:00 p.m.
Petitioner received the Letter of Separation on 9 March 2020, so the deadline for
submission of his Step 1 Grievance Form was 24 March 2020.
¶8 On 20 March 2020, Petitioner completed a Step 1 Grievance Form to internally
appeal Respondent’s decision to separate him from his employment. He testified that
the Grievance Form was mailed to Respondent’s Raleigh office from his home in
Fayetteville that day and that he personally observed his wife stamp the envelope
and place it in the mailbox. During this timeframe, many employees of Respondent
were working remotely because of the COVID-19 pandemic, and the mail was not
being checked daily.
¶9 On 7 April 2020, Petitioner submitted a photograph of the Grievance Form he
completed on 20 March 2020 to Respondent’s Grievance Intake Coordinator by e-mail.
The next day, the Grievance Intake Coordinator informed him that she was unable
to print the Grievance Form using the photograph Petitioner sent. A date stamp on
Petitioner’s Grievance Form in the record on appeal suggests that it was received by
Respondent on 8 April 2020. On 9 April 2020, Petitioner e-mailed another copy of the
Grievance Form to Respondent’s Grievance Intake Coordinator, who confirmed that
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this second copy was legible and had been received.
¶ 10 In a 16 April 2020 letter, Respondent informed Petitioner that it considered
the grievance untimely. Respondent took the position that Petitioner had failed to
meet the 24 March 2020 deadline because Respondent did not receive the grievance
until 7 April 2020—the date Petitioner first attempted to provide Respondent with a
copy by e-mail—despite the 8 April 2020 date stamp in the record on appeal and
Respondent’s 9 April 2020 confirmation of receipt by e-mail.
¶ 11 On 26 May 2020, Petitioner initiated a contested case in OAH, alleging that he
had been discharged without just cause and without sufficient action to place him in
a different position. On 25 June 2020, Respondent made a motion to dismiss, arguing
that OAH lacked subject matter jurisdiction because Petitioner had failed to first
exhaust his administrative remedies by timely filing a Step 1 Grievance Form. On 2
July 2020, Petitioner filed a response to the motion to dismiss. On 3 August 2020,
the ALJ denied Respondent’s prehearing motion to dismiss. On 7 August 2020,
Petitioner filed a prehearing statement. On 11 August 2020, Respondent filed a
prehearing statement.
¶ 12 The matter came on for hearing on 8 October 2020. Respondent renewed its
motion to dismiss at the beginning of the hearing, which the ALJ denied. Petitioner’s
supervisor, who had signed both the 12 February 2020 Pre-Separation Letter and 3
March 2020 Separation Letter, did not testify. Respondent’s Grievance Intake
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Coordinator essentially testified that she first received a copy of Petitioner’s
grievance on 7 April 2020 and that the original copy of Petitioner’s grievance had
never been received. On cross-examination, the Grievance Intake Coordinator
admitted that she could not remember which days of the week she was in the office
during the March to April 2020 timeframe, but stated that she was most likely in the
office at least three days a week.
¶ 13 In an order entered on 23 December 2020, the ALJ reversed Respondent’s
decision to separate Petitioner from his employment and ordered that he be
retroactively reinstated to the same or similar position he previously held and receive
back pay, benefits, and attorney’s fees. The ALJ also denied Respondent’s renewed
motion to dismiss based on “the effects COVID-19 has had on the operation of our
State government offices[.]”
¶ 14 Respondent entered timely notice of appeal on 21 January 2021 and entered a
corrected notice of appeal the following day.
II. Analysis
¶ 15 Respondent argues the ALJ erred in denying Respondent’s motions to dismiss
for lack of subject matter jurisdiction because Petitioner failed to first exhaust his
administrative remedies before filing the contested case in OAH. The ALJ made no
express finding regarding the timeliness of the filing of Petitioner’s Step 1 Grievance
Form but denied both of Respondent’s motions to dismiss and concluded she had
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subject matter jurisdiction over the case. Based on these rulings, the ALJ necessarily
found Petitioner’s Step 1 Grievance was timely filed, despite not doing so expressly.
We hold that there is a rational basis in the evidence to support this finding and
affirm the order of the ALJ.
A. Standard of Review
¶ 16 “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 v. N.C. Dep’t of Pub. Safety, 252 N.C. App. 94, 98, 798 S.E.2d 127,
132, aff’d, 370 N.C. 386, 808 S.E.2d 142 (2017). Chapter 150B provides:
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) (2021). “The standard of review is dictated by the
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substantive nature of each assignment of error.” Harris, 252 N.C. App. at 99, 798
S.E.2d at 132 (citing N.C. Gen. Stat. § 150B-51(c)). “[Q]uestions of law receive de
novo review, whereas fact-intensive issues such as sufficiency of the evidence to
support an agency’s decision are reviewed under the whole-record test.” Id. (citation
omitted).
¶ 17 “The ‘whole record’ test requires the reviewing court to examine all competent
evidence (the ‘whole record’) in order to determine whether the agency decision is
supported by ‘substantial evidence.’” Amanini v. N.C. Dep’t of Hum. Res., 114 N.C.
App. 668, 674, 443 S.E.2d 114, 118 (1994) (citation omitted). “As distinguished from
the ‘any competent evidence’ test and a de novo review, the ‘whole record’ test gives
a reviewing court the capability to determine whether an administrative decision has
a rational basis in the evidence.” Bennett v. Hertford Cnty. Bd. of Educ., 69 N.C. App.
615, 618, 317 S.E.2d 912, 915 (1984) (internal marks and citation omitted). “[T]he
manner of our review is [not] governed merely by the label an appellant places upon
an assignment of error; rather, we first determine the actual nature of the contended
error, then proceed with an application of the proper scope of review.” Amanini, 114
N.C. App. at 675, 443 S.E.2d at 118.
B. The ALJ’s Decision Has a Rational Basis in the Evidence
1. Separation Due to Unavailability
¶ 18 Codified in Chapter 126 of our General Statutes, the North Carolina Human
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Resources Act governs personnel actions against state employees. Hunt v. N.C. Dep’t
of Pub. Safety, 260 N.C. App. 40, 44, 817 S.E.2d 257, 260-61 (2018). Generally
speaking, “[n]o career State employee . . . shall be discharged, suspended, or demoted
for disciplinary reasons, except for just cause.” N.C. Gen. Stat. § 126-35(a) (2021).
State employees enjoy “a property interest [in] continued employment created by N.C.
Gen. Stat. § 126-35 and protected by the Due Process Clause of the United States
Constitution.” Emp. Sec. Comm’n v. Peace, 128 N.C. App. 1, 10-11, 493 S.E.2d 466,
472 (1997) (citations omitted). However, on a non-disciplinary basis, state employees
can be involuntarily separated from their employment if they are unable to perform
their duties because they are unavailable to work under a provision of the North
Carolina Administrative Code providing for “Separation Due to Unavailability.” See
25 N.C. Admin. Code 1C.1007 (2021).
¶ 19 When an employee has been on a leave of absence because of a work-related
injury, 25 N.C. Admin. Code 1C.007(a)(3) provides in relevant part that the employee
may be separated from the employee’s employment due to unavailability when
the employee is unable to return to all of the position’s
essential duties as set forth in the employee’s job
description or designated work schedule due to a medical
condition or the vagueness of a medical prognosis, and the
employee and the agency are unable to reach agreement on
a return to work arrangement that meets both the needs of
the agency and the employee’s medical condition[.]
Id. 1C.1007(a)(3). In such a situation,
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a separation may occur on the earliest of the following
dates:
(A) after the employee has reached maximum
medical improvement for the work related injury for
which the employee is on workers’ compensation
leave of absence and the agency is unable to
accommodate the employee’s permanent work
restrictions related to such injury; or
(B) 12 months after the date of the employee’s work
related injury.
Id.¶ 20 Subsections (b) and (c) of subchapter 1C, section .1007 delineate the process
the employing agency must follow:
(b) The employing agency shall send the employee
written notice of the proposed separation in a Pre
Separation Letter. The letter shall include the employing
agency’s planned date of separation, the efforts undertaken
to avoid separation, and why the efforts were unsuccessful.
This letter shall be sent to the employee at least 15
calendar days prior to the employing agency’s planned date
of separation. This letter shall include a deadline for the
employee to respond in writing no less than five calendar
days prior to the employing agency’s planned date of
separation.
(c) If the agency and employee are unable to agree on
terms of continued employment or the employee does not
respond to the Pre Separation letter, the employing agency
shall send the employee written notice in a Letter of
Separation. The letter shall be sent no earlier than 20
calendar days after the Pre Separation letter is sent to the
employee. The Letter of Separation shall state the actual
date of separation, specific reasons for the separation and
set forth the employee’s right of appeal. . . .
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Id. 1C.1007(b), (c).
¶ 21 North Carolina General Statute § 126-34.01 provides that a 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, . . . [and] [t]hen . . .
shall follow the grievance procedure approved by the State Human Resources
Commission.” N.C. Gen. Stat. § 126-34.01 (2021). Importantly, separation due to
unavailability “may be grieved or appealed.” 25 N.C. Admin. Code 1C.007(c) (2021).
“The burden of proof on the agency in the event of a grievance . . . shall be to prove
that the employee was unavailable, that efforts were undertaken to avoid separation,
and why the efforts were unsuccessful.” Id. After an appeal of an involuntary
separation due to unavailability through the grievance process, “the final agency
decision shall set forth the specific acts or omissions that are the basis of the
employee’s dismissal.” Id. 1J.0613(h).
¶ 22 “Once a final agency decision is issued, a . . . 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, 252 N.C. App. at 98, 798 S.E.2d at 131. Under
N.C. Gen. Stat. § 126-34.02(b), there are six grounds for initiating a contested case in
OAH, the third of which includes “appeal[ing] an involuntary nondisciplinary
separation due to an employee’s unavailability[.]” N.C. Gen. Stat. § 126-34.02(b)(3)
(2021). In such a case, “the agency shall only have the burden to prove that the
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employee was unavailable.” Id. If the agency fails to meet this burden, the ALJ
presiding over the case may (1) reinstate the employee to the employee’s previous
position; (2) “[o]rder the employment, promotion, transfer, or salary adjustment of
any individual to whom it has been wrongfully denied”; or (3) “[d]irect . . . payment
for any loss of salary which has resulted from the improper action of the appointing
authority.” Id. § 126-34.02(a). ALJs are “free to substitute their judgment for that of
the agency[,]” Harris, 252 N.C. App. at 102, 798 S.E.2d at 134, and thus “have been
given many of the powers and duties generally regarded as necessary to the
independent function of our courts of justice[,]” Ford v. Dep’t of Env’t, Health & Nat.
Res., 107 N.C. App. 192, 197, 419 S.E.2d 204, 207 (1992). Either party can appeal to
our Court from the ALJ’s decision. Harris, 252 N.C. App. at 96, 798 S.E.2d at 130-
31.
2. Subject Matter Jurisdiction
¶ 23 “The right to appeal to an administrative agency is granted by statute, and
compliance with statutory provisions is necessary to sustain the appeal.” Lewis v. N.
Carolina Dep’t of Hum. Res., 92 N.C. App. 737, 739, 375 S.E.2d 712, 714 (1989). The
failure to use the agency grievance process before initiating a contested case in OAH
deprives OAH of subject matter jurisdiction over the case. Nailing v. Univ. of N.C.,
117 N.C. App. 318, 324, 451 S.E.2d 351, 355 (1994).
Subject matter jurisdiction is jurisdiction over the nature
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of the case and the type of relief sought. Subject matter
jurisdiction involves the authority of a court to adjudicate
the type of controversy presented by the action before it. A
court’s lack of subject matter jurisdiction is not waivable
and can be raised at any time, including on appeal.
Banks v. Hunter, 251 N.C. App. 528, 531, 796 S.E.2d 361, 365 (2017) (cleaned up).
¶ 24 The sole disputed evidentiary issue at the contested case hearing in this matter
was whether Petitioner’s 20 March 2020 Grievance Form was timely filed. Petitioner
testified that his wife mailed the form the same day he completed it and that he
personally observed her stamp the envelope and put it in the mailbox. Petitioner was
mailing the Grievance Form from Fayetteville to Raleigh. Respondent’s Grievance
Intake Coordinator testified that this original copy of the form was never received by
Respondent; instead, a legible electronic copy of the form was not received until 9
April 2020—16 days after the 24 March 2020 deadline. The Grievance Intake
Coordinator admitted, however, that many of Respondent’s employees were working
remotely in March and April of 2020 because of the COVID-19 pandemic and that the
mail was not being checked daily. The ALJ made no express finding regarding the
timeliness of the filing of the Grievance Form but she denied Respondent’s renewed
motion to dismiss for lack of subject matter jurisdiction based on “the effects COVID-
19 . . . on the operation of our State government offices[.]” This ruling implies that
the ALJ credited Petitioner’s testimony, and implicitly found that the Grievance
Form was timely filed. The ALJ’s conclusion of law that she had subject matter
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jurisdiction over the case likewise necessitates that the ALJ found the Grievance
Form was timely filed, despite not doing so expressly.
¶ 25 We hold that there is a rational basis in the evidence for the finding that the
Grievance Form was timely filed. Under the whole record test, the reviewing court
“must examine all the record evidence—that which detracts from the agency’s
findings and conclusions as well as that which tends to support them—to determine
whether there is substantial evidence to justify the agency’s decision.” N.C. Dep’t of
Env’t & Nat. Res. v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004) (citation
omitted). “Substantial evidence” means “[r]elevant evidence a reasonable mind might
accept as adequate to support a conclusion.” N.C. Gen. Stat. § 150B-2(8c) (2021).
In a contested case under the APA, as in a legal proceeding
initiated in District or Superior Court, there is but one fact-
finding hearing of record when witness demeanor may be
directly observed. It is also well established that in an
administrative proceeding, it is the prerogative and duty of
the ALJ, once all the evidence has been presented and
considered, to determine the weight and sufficiency of the
evidence and the credibility of the witnesses, to draw
inferences from the facts, and to appraise conflicting and
circumstantial evidence. The credibility of witnesses and
the probative value of particular testimony are for the ALJ
to determine, and the ALJ may accept or reject in whole or
part the testimony of any witness. Our review, therefore,
must be undertaken with a high degree of deference as to
the credibility of witnesses and the probative value of
particular testimony. As our Supreme Court has
explained, the ALJ who conducts a contested case hearing
possesses those institutional advantages that make it
appropriate for a reviewing court to defer to his or her
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findings of fact.
Brewington v. N.C. Dep’t of Pub. Safety, 254 N.C. App. 1, 13, 802 S.E.2d 115, 124-25
(2017) (cleaned up).
¶ 26 On 24 March 2020, when the Grievance Form was due, North Carolina
Governor Roy Cooper had declared a state of emergency in response to the COVID-
19 pandemic. See Exec. Order No. 116 (2020). Respondent had allowed
telecommuting for non-essential personnel, suspended staff training, limited external
movement by offenders to reduce potential COVID-19 spread, and suspended
visitation and volunteering at all prisons. Director and Chief Judge Julian Mann of
OAH had encouraged all OAH employees to telecommute, and as of 18 March 2020,
only “[a] very small number of managerial employees, as safety permits, ha[d] elected
to be physically present in OAH, mostly on a staggered basis[.]” As Respondent’s
Grievance Intake Coordinator admitted on cross-examination, many of Respondent’s
employees were working remotely in March and April of 2020 because of the COVID-
19 pandemic. Mail was not being checked daily.
¶ 27 Against this backdrop, in denying Respondent’s motions to dismiss for lack of
subject matter jurisdiction, the ALJ chose to credit Petitioner’s testimony that his
wife mailed the Step 1 Grievance Form on 20 March 2020 and that the Grievance
Form was timely filed even though Respondent’s Grievance Intake Coordinator
testified that she did not receive an electronic copy until 7 April 2020. Giving
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appropriate deference to the ALJ, who was present in this case for the only “fact-
finding hearing of record when witness demeanor [could] be directly observed[,]” id.
at 13, 802 S.E.2d at 124, and specifically, the ALJ’s credibility determination with
respect to Petitioner’s testimony, we hold that the finding implicit in the ALJ’s rulings
denying Respondents’ motions to dismiss for lack of subject matter jurisdiction—that
the Grievance Form was timely filed—has a rational basis in the evidence under the
whole record test. To hold otherwise would effectively require us to re-weigh the
evidence before the ALJ and substitute our own credibility determination for that of
the ALJ, which we cannot do as a reviewing court under the whole record test. See
Carroll, 358 N.C. at 660, 599 S.E.2d at 895.1
III. Conclusion
¶ 28 We affirm the decision of the ALJ because the ALJ chose to credit Petitioner’s
testimony regarding the filing of his Step 1 Grievance Form. Since Petitioner first
exhausted his administrative remedies before filing a contested case in OAH, the ALJ
had subject matter jurisdiction over this contested case.
AFFIRMED.
Judge CARPENTER concurs.
1 Respondent offers no argument that the ALJ’s determinations regarding
Respondent’s failure to comply with state personnel policy on separation due to unavailability
was error, and any such error is therefore deemed abandoned. See N.C. R. App. P. 28(a)
(“Issues not presented and discussed in a party’s brief are deemed abandoned.”).
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Judge TYSON dissents by separate opinion.
No. COA21-482 – Russell v. N.C. Dep’t of Pub. Safety
TYSON, Judge, dissenting.
¶ 29 The decision of the ALJ is properly reversed and remanded with instructions
to dismiss Petitioner’s case for lack of subject matter jurisdiction. I respectfully
dissent.
I. Factual and Procedural Background
¶ 30 Petitioner’s employment with the Department of Public Safety (“DPS”) was
terminated as of 3 March 2020 via a separation letter he received on 9 March 2020.
If Petitioner wished to invoke a grievance review process, a “Step 1 Grievance
Mediation Form” (“Step 1 Form”) was required to be filed before the fifteenth calendar
day after receipt of the letter or 24 March 2020. The Step 1 Form states: “[t]o file a
grievance, you must submit this form within 15 calendar days of the event (or
knowledge of the event) that you are grieving; otherwise, your grievance cannot be
accepted.” (emphasis supplied). The 3 March 2020 separation letter stated that the
Step 1 Grievance Form “must be received by the Grievance Intake Coordinator on or
before the fifteenth (15th) calendar day after receiving this letter” to be considered
timely. (emphasis supplied).
¶ 31 Petitioner alleged he mailed the letter on 20 March 2020, but it was not marked
as received by the Grievance Intake Coordinator until 8 April 2020, and only then
after Petitioner had emailed a copy of the form. The purported mailed Step 1 Form
was never received by the DPS Grievance Intake Coordinator.
¶ 32 Petitioner’s emailed Step 1 Form was marked “as received” on 9 April 2020 and
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was deemed to be untimely. Petitioner’s appeal was administratively dismissed.
Petitioner filed a Petition for a Contested Case Hearing in the Office of
Administrative Hearings (“OAH”). DPS moved for dismissal, arguing Petitioner had
failed to timely invoke and exhaust his administrative remedies by completing the
internal grievance process and receiving a final agency decision, and asserted OAH
lacked subject matter jurisdiction to review the case. The ALJ denied the motion.
¶ 33 As is correctly stated by the majority’s opinion: “The ALJ made no express
finding regarding the timeliness of the filing of the Grievance Form, but denied
Respondent’s renewed motion to dismiss for lack of subject matter jurisdiction based
on ‘the effects COVID-19 . . . on the operation of our State government offices[.]’” DPS
appeals.
II. Issues
¶ 34 Respondent asserts two issues on appeal: (1) whether former Chief Justice
Beasley’s order extending the time and periods of limitation due to COVID-19 applies
to the internal grievance process under Office of State Human Resources (OSHR);
and, (2) whether the ALJ erred in denying Respondent’s Motion to Dismiss for lack
of subject matter jurisdiction.
III. Analysis
A. Chief Justice’s Order
¶ 35 Chief Justice Beasley’s order titled “Extension of Time and Periods of
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Limitation Pursuant to N.C.G.S. § 7A-39(b)(1)” provides:
all pleadings, motions, notices, and other documents and
papers that were or are due to be filed in any county of this
state on or after 16 March 2020 and before the close of
business on 1 June 2020 in civil actions, criminal actions,
estates, and special proceedings shall be deemed to be
timely filed if they are filed before the close of business on
1 June 2020.
all other acts that were or are due to be done in any county
of this state on or after 16 March 2020 and before the close
of business on 1 June 2020 in civil actions, criminal actions,
estates, and special proceedings shall be deemed to be
timely done if they are done before the close of business on
1 June 2020.
¶ 36 On 18 March 2020, Chief Judge Mann of the OAH also extended the filing
deadlines based upon COVID-19.
¶ 37 The extension of time for filing asserted under N.C. Gen. Stat. § 7A-39 is
expressly applicable only to those pleadings and documents filed with the courts
within the Judicial Branch and to those matters and actions attendant thereto within
the Judicial Branch. The statute grants the Chief Justice the authority to cancel
court sessions and extend the time of filing for documents, motions, and papers in
cases before the courts. N.C. Gen. Stat. § 7A-39 (2021).
¶ 38 It does not extend the time of filing for Executive Branch internal agency
grievance processes. Chief Justice Beasley’s 13 March 2020 order did not extend
Petitioner’s duty to timely file his Step 1 Form to invoke the jurisdiction of DPS’
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administrative review process. See id.
¶ 39 The Chief Justice’s authority to extend the time for Judicial Branch filings
under N.C. Gen. Stat. § 7A-39 and Chief Judge Mann’s extension of filing in the OAH
did not to extend every internal Executive Branch agency filing deadline. Petitioner’s
argument is without merit.
B. Lack of Subject Matter Jurisdiction
¶ 40 To properly initiate a contested case before the OAH, a state employee must
first invoke and exhaust his agency’s internal administrative remedies. The state
employee must complete the internal grievance process, receive a final agency
decision, and receive final review and approval of that decision by OSHR to invoke
and exhaust his administrative remedies, prior to appealing to OAH. N.C. Gen. Stat.
§ 126-34.01 (2021).
¶ 41 In order to invoke jurisdiction to pursue the grievance process, the state
employee carries the burden under the statute to show he timely filed a Step 1 Form
within 15 days of the event (or knowledge of the event) for which the employee is
grieving. If the employee fails to initiate the grievance process within the required
15 days, jurisdiction is not involved, the internal grievance process is hated, and the
grievance is administratively dismissed, the internal grievance process is halted,
with no further action by the agency or OSHR.
¶ 42 Petitioner’s assertion that he or his wife timely mailed the Step 1 Form does
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not carry his jurisdictional burden. The employee must timely invoke and exhaust
his agency’s internal administrative remedies prior to petitioning for a contested case
hearing before OAH. Petitioner incorrectly argues this jurisdictional prerequisite
puts the employee in a “Catch-22” situation, asserting he is unable to exhaust his
administrative remedies and unable to appeal the agency decision. He admittedly
received notice his of separation by letter and chose to purportedly invoke internal
agency jurisdiction by a means, which left no objective certificate or proof of timely
filing. Petitioner’s assertion has no merit.
¶ 43 Petitioner further argues this Court’s decision in Erickson requires this Court
to affirm the ALJ’s denial of DPS’ motion to dismiss. Erickson v. N.C. Dep’t of Public
Safety, 264 N.C. App 700, 826 S.E.2d 821 (2019). In Erickson, DPS alleged Erickson
had missed his deadline to continue his appeal from Step 1 to Step 2 in the internal
grievance process. Id. at 701, 826 S.E.2d at 823. The Step 2 Form stated it had to be
filed within 5 calendar days, but also that if it was not received within that timeframe,
it would not be accepted. Id. at 707, 826 S.E.2d at 826. This Court determined the
language in the form was conflicting and ambiguous and construed it against the
drafting party. Id. This Court ultimately held Erickson’s petition for a contested case
hearing was proper despite not having timely exhausted his administrative remedies.
Id.
¶ 44 Erickson is easily distinguishable from the facts before us. Erickson’s mailed
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Step 2 Form was received one day late, whereas here, the mailed initiation of process
Step 1 Form was never received. The issue before the Court in that case was whether,
given the ambiguity of the form’s instructions, Erickson had substantially complied
with the form when viewed in the light most favorable to him. Id. at 706, 826 S.E.2d
at 826. The agency’s jurisdiction had already been timely invoked. See id.
¶ 45 Here, Petitioner’s form was not received until 15 days after the deadline, and
only then after Petitioner emailed the admittedly untimely form. He failed to comply
with and invoke DPS’ internal grievance process. Petitioner’s failure deprived OAH
of jurisdiction to hear the contested case. N.C. Gen. Stat. § 126-34.01.
IV. Conclusion
¶ 46 Statutes of limitations and repose limit and cut off the ability of a claimant,
even with a meritorious claim, to timely assert rights. These statutes can be
jurisdictional where the burden to show compliance therewith rests upon the
claimant. Compliance is not satisfied by the bald assertions of timely filing by the
party with the burden, where the record is devoid of any objective compliance. A
claimant, even with a valid ticket, who arrives at the station late sees the train has
already left. Those who timely arrived and boarded the train get to travel. Those
who did not will be left on the station’s platform, even if entitled to board and the
train is just pulling away.
¶ 47 No objective evidence shows Petitioner carried his burden to timely invoke
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DPS’ internal and jurisdictional grievance process. The extensions of times in the
Judicial Branch and the OAH has no impact on an Executive Agency’s internal
jurisdictional procedures.
¶ 48 The employee must timely invoke and exhaust his agency’s internal
administrative remedies prior to petitioning for a contested case hearing before OAH.
Id. This he failed to do. Neither the ALJ nor COVID can excuse a jurisdictional
defect.
¶ 49 DPS’ jurisdictional review train left the station on schedule. Petitioner was
not on board. I vote to reverse the ALJ and remand to dismiss for lack of OAH
jurisdiction. I respectfully dissent.