in the Court of Appeals 27 February 2019.
by petitioner from final decision entered 8 May 2018 by
Administrative Law Judge Selina Malherbe in the Office of
Administrative Hearings No. 18 OSP 01836.
Attorney General Joshua H. Stein, by Assistant Attorney
General Tamika L. Henderson, for the State.
Humphrey S. Cummings for petitioner-appellant.
Erickson ("Petitioner") appeals a final decision
from the Office of Administrative Hearings ("OAH"),
which dismissed his contested case petition for the lack of
subject-matter jurisdiction. We reverse and remand.
worked for the North Carolina Department of Public Safety
("DPS") as a probation and parole officer in
Charlotte. On 8 January 2018, Petitioner was dismissed for
cause from DPS. Petitioner initiated a challenge to his
dismissal through DPS' internal grievance process on 23
1" of the grievance process consists of a mediation
conference. Mediation between Petitioner and DPS personnel
was conducted on 21 February 2018. The mediation conference
ended in an impasse. Petitioner was provided with a copy of
DPS Form HR 556, which provides notice of an employee's
appeal to "Step 2" of DPS' grievance process,
if an impasse occurs at "Step 1." The heading of
the Form HR 556 provided to Petitioner states, in relevant
part: "To appeal to Step 2 of the grievance process,
this form must be filed within five (5)
calendar days following an impasse in mediation. If
this form is not received within this timeframe, it
will not be accepted." (First and third emphasis
supplied). Above the signature line for employees, Form HR
I understand that it is my responsibility to mail,
email, or hand deliver my Step 2 Appeal to the Grievance
Intake Coordinator to initiate the appeal process
within five (5) calendar days of the mediation impasse.
I understand that my signature acknowledges that I have been
advised of Step 2 appeal rights and timeframes. (Emphasis
Employee Grievance Policy section of the State Human
Resources Manual, included within the record on appeal,
states, in relevant part: "At the end of the mediation
session, the agency shall inform the grievant of the Step
2 grievance process and that the filing must be
received by the agency within 5 calendar days of the
date of mediation." (Emphasis supplied).
State Human Resources Manual, Employee Grievance Policy,
§ 7, at 38.
evidence tends to show he signed and dated DPS Form HR 556 on
Wednesday, 21 February 2018, but did not file, submit, or
mail it on that date. Petitioner purportedly mailed the form
on Friday, 23 February 2018. DPS received the form on
Tuesday, 27 February 2018, allegedly one day too late to
effectuate Step 2. In a letter dated 27 February 2018, DPS
advised Petitioner that his Form HR 556 was "untimely
received" and that he had "no further appeal rights
through the Formal Internal Grievance Process." In
response to correspondence from Petitioner's counsel, DPS
sent two subsequent letters re-stating that his Step 2
request was untimely and that he had no further appeal rights
through DPS' internal grievance process.
March 2018, Petitioner filed a petition for a contested case
hearing with OAH. DPS filed a motion to dismiss based upon
N.C. Gen. Stat. § 126-34.02; the doctrine of sovereign
immunity; and Rules of Civil Procedure 12(b)(1), 12(b)(2),
and 12(b)(3). DPS attached to its motion to dismiss the
affidavit of Tracy Perry, the DPS Grievance Intake
Coordinator. Included as an exhibit to the affidavit was,
among other things, a ...