Russell v. N.C. Dep't of Pub. Safety

Opinions

Opinion

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

Opinion of the Court

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

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

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

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

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

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

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

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

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,

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. . . .

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

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

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

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 factfinding 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

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

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.”).

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

Justice Tyson, dissenting

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

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’

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

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

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

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.