Opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-47
Filed 15 October 2025
Office of Administrative Hearings, No. 24 OSP 03289
CARMEN T. O’SULLIVAN, Petitioner,
v.
HYDE COUNTY HEALTH DEPARTMENT LUANA GIBBS HEALTH DIRECTOR, Respondent.
Appeal by Respondent from final decision entered 2 October 2024 by
Administrative Law Judge Michael C. Byrne in the Office of Administrative
Hearings. Heard in the Court of Appeals 13 August 2025.
Cranfill Sumner LLP, by Benton L. Toups and Tammy L. Neil, for Respondent- Appellant.
No brief filed on behalf of Carmen T. O’Sullivan for Pro Se Plaintiff-Appellee.
COLLINS, Judge.
Respondent Hyde County Health Department Luana Gibbs appeal from a final
decision of the Office of Administrative Hearings dismissing without prejudice
Petitioner Carmen T. O’Sullivan’s petition for a contested case hearing challenging
her dismissal from employment with the Health Department. Respondent contends
that the Administrative Law Judge erred by concluding that Respondent provided
Petitioner insufficient notice of her appeal rights. We affirm the final decision.
Opinion of the Court
I. Background
Petitioner was employed by the Health Department as a “career status
employee,” as defined by N.C. Gen. Stat. §§ 126–1.1, 126–5(a)(2)c. On 6 August 2024,
Respondent dismissed Petitioner from her employment with the Department for
“unacceptable personal conduct,” as defined by 25 NCAC 01I.2304(b). Respondent
gave Petitioner a dismissal letter explaining the specific reasons for her dismissal
and the effective date of dismissal, and also stating the following: “As an employee
with career status, you have the right to appeal this decision. Attached is a copy of
the Hyde County Health Department’s Appeals Policy.”
Attached to the dismissal letter was a copy of the Health Department’s three-
page appeals policy, in accordance with 25 NCAC 01I.2304(d). The policy included
an explanation of a two-step appeals process for career status employees ― first to
the Department Director and then to the Office of Administrative Hearings (“OAH”)
― and the time limits for each step. Petitioner did not appeal her dismissal to the
Department Director and, instead, filed a petition for a contested case hearing with
the OAH on 23 August 2024.
On 2 October 2024, the Administrative Law Judge (“ALJ”) issued a final
decision dismissing Petitioner’s petition without prejudice. The ALJ concluded that
“Respondent failed to give Petitioner legally sufficient notice of her applicable appeal
rights in the dismissal letter . . . .” Accordingly, the ALJ concluded that “Petitioner’s
claims must be dismissed without prejudice pending completion of the internal
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grievance policy.”
Respondent appeals.
II. Discussion
Respondent contends that the ALJ erred in dismissing Petitioner’s petition
without prejudice because the dismissal letter and attached Appeals Policy satisfied
the notice requirement in N.C. Gen. Stat. § 126-35(a). Because the time for Petitioner
to appeal to the Department Director had expired, Respondent argues that
Petitioner’s petition for a contested case hearing must be dismissed with prejudice.
We disagree.
N.C. Gen. Stat. § 126-35(a) establishes conditions that must be satisfied before
disciplinary action is taken against a career State employee. Emp. Sec. Comm’n v.
Wells, 50 N.C. App. 389, 392 (1981). Pursuant to that statute, before a career State
employee may be disciplined or dismissed for just cause, the employee must “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.” N.C.
Gen. Stat. § 126-35(a) (2024). The employee has “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.” Id.
In Leiphart v. North Carolina School of Arts, this Court addressed whether a
dismissal letter given to the petitioner met the requirement of N.C. Gen. Stat. §
126-35 “that the employee be furnished with a written statement setting forth his
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appeal rights.” 80 N.C. App. 339, 352 (1986). There, the dismissal letter stated: “You
may choose to appeal this decision within 30 days in writing to the State Personnel
Office, Employee Relations Division.” Id. In addition, the letter was accompanied by
a copy of the school’s grievance procedure. Id. We held that the dismissal letter
“adequately informed” the petitioner of his appeal rights and thus “complied with all
the requirements” of N.C. Gen. Stat. § 126-35. Id.
Here, the dismissal letter stated only, “As an employee with career status, you
have the right to appeal this decision. Attached is a copy of the Hyde County Health
Department’s Appeals Policy.” Attached to the letter was a copy of Respondent’s
appeals policy. Unlike the letter in Liephart, the letter here failed to notify Petitioner
of her “appeal rights” under N.C. Gen. Stat. § 126-35(a) – the right, the procedure,
and the time limit to appeal. The purpose of the written statement required by
section 126-35(a) is to “advise [the employee] of his rights to appeal the disciplinary
action.” Luck v. Emp. Sec. Comm’n, 50 N.C. App. 192, 194 (1980). Obscuring this
information in an attached policy document, as happened here, fails to implement the
legislature’s intent. Thus, unlike the letter in Leiphart, the letter here failed to
adequately inform Petitioner of her appeal rights and therefore failed to comply with
all the requirements of N.C. Gen. Stat. § 126-35.
Accordingly, the ALJ did not err by dismissing Petitioner’s petition without
prejudice.
III. Conclusion
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For the reasons above, we affirm the final decision.
AFFIRMED.
Chief Judge DILLON and Judge WOOD concur.
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