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Erickson v. N.C. Department of Public Safety

Court of Appeals of North Carolina

April 2, 2019

ERIC ERICKSON, Petitioner,
v.
N.C. DEPARTMENT OF PUBLIC SAFETY, Respondent.

          Heard in the Court of Appeals 27 February 2019.

          Appeal 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.

          TYSON, JUDGE.

         Eric 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.

         I. Background

         Petitioner 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 January 2018.

         "Step 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 556 states:

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 supplied).

         The 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.

         Petitioner's 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.

         On 23 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 ...


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